CAIRNS v. MCGINLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREW CAIRNS, CIVIL ACTION

Petitioner,

No. 19-5351-KSM

v.

THOMAS MCGINLEY, et al.,

Respondents.

MEMORANDUM

MARSTON, J. August 22, 2023

Pro se petitioner Andrew Cairns, who is currently incarcerated at SCI Coal Township,

petitions this Court for a writ of habeas corpus pursuant 28 U.S.C. § 2254. (See Doc. Nos. 1,

15.) He raises six claims of error and seeks an evidentiary hearing. (See generally Doc. No. 15.)

On March 10, 2022, the Honorable Richard A. Lloret, United States Magistrate Judge, submitted

a Report and Recommendation (“R&R”), rejecting all six claims, denying Cairns’s request for an

evidentiary hearing, and recommending that Cairns’s Amended Petition be dismissed with

prejudice. (See generally Doc. No. 28.) Cairns objects to the R&R as to five of his six claims,

renews his request for an evidentiary hearing, and argues that Judge Lloret was biased against

him. (See Doc. No. 34.) For the reasons discussed below, Cairns’s objections are overruled, and

the Court adopts the R&R in its entirety, with only one minor typographical change.1

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Underlying Conduct

The R&R succinctly recounts the facts underlying this case as found by the Bucks

1 Page one of the R&R refers to a “Mr. Myatt.” (Doc. No. 28 at 1.) The Court believes that

Judge Lloret meant to refer to “Mr. Cairns.”

County Court of Common Pleas:

On February 19, 2013, beginning at approximately 7:30 p.m.,

[Cairns] fired a .44 Magnum handgun nineteen times out of his

bedroom window into the surrounding area of the Jefferson on the

Creek Apartment complex in Warminster Township, Bucks County.

After [Cairns] fired the first two shots, [Cairns’s significant other],

Deborah Silva, called 911 from the living room of their shared

apartment to report that [Cairns] had several firearms in their

apartment and that he was threatening to kill himself. Ms. Silva

remained on the line with the 911 dispatcher and was instructed to

evacuate the apartment for her own safety.

At approximately 7:42 p.m., several officers of [the] Warminster

Township Police Department responded to the Jefferson on the

Creek Apartment complex. As the officers approached building

2000, the building in which [Cairns’s] apartment, apartment 2004,

was located, they heard gunshots and could hear bullets hitting trees

and the ground in their vicinity. The officers determined that the

gunshots were being fired from apartment 2004. The officers set up

a perimeter around building 2000, positioning three officers along a

split-rail fence, approximately 100 yards from the front doors to

apartments 2001 through 2004. Due to their distance from the front

doors and the lighting conditions, the officers were unable to see the

apartment numbers posted on the front doors. The officers were

informed via police radio that the entrance to apartment 2004 was

the fourth door from the left. However, the numbering of the doors

was out of sequential order. Apartment 2004 was the third door

from the left and apartment 2003 was the fourth door from the left.

The officers instructed Ms. Silva, via the 911 dispatcher, to run

towards the front of the apartment complex where other responding

officers were waiting for her. The 911 dispatcher informed

Ms. Silva[, who had exited the apartment,] that in order to help

[Cairns] and protect herself and the police officers from gunfire, she

needed to get away from her front door and run to the front of the

complex. Despite repeated attempts to persuade Ms. Silva, she

remained waiting outside her front door. [Cairns] continued to fire

shots and the officers could hear projectiles impacting the ground

directly in front of them.

Ms. Silva, while remaining on the phone with 911, knocked on the

front door of apartment 2003. Ms. Silva intended to ask apartment

2003’s occupant, Marie Zienkewicz, to use her phone to call

[Cairns]. Officer Sean Harold was positioned at the third post of the

split-rail fence when he saw the front door of apartment 2003 open.

Officer Harold saw a person begin to emerge and reach toward Ms.

Silva. Still under the impression that the door opening was actually

the door to apartment 2004, Officer Harold believed that both Ms.

Silva and the officers on scene were in immediate danger. Officer

Harold fired at the person that emerged from the doorway, shooting

and killing Ms. Zienkewicz.

At approximately 2:30 am. on February 20, 2013, [Cairns] was

taken into custody. That same day, the crime scene and surrounding

area were processed for evidence. Of the nineteen shots that were

fired [by Cairns], one hit the embankment in front of the second post

on the split-rail fence [the “Embankment Bullet”], one went through

the fourth post of the fence, and a third went through a fence to the

pool located behind where the officer who fired the fatal shot was

positioned. Several shots were determined to have hit trees directly

in line between [Cairns’s] bedroom window and where the officers

were positioned. Finally, one projectile traveled across the street,

entered a private residence, and passed through the resident’s

bedroom. Located in [Cairns’s] bedroom was a “suicide Last Will

and Testament note” describing, in part, [Cairns’s] anger towards

the Warminster Township Police Department.

Commonwealth v. Cairns (“Cairns Initial PCRA”), No. CP-09-CR-3357-2013, 2018 WL

10484002, at *1–2 (Pa. Ct. Comm. Pl. Jan. 11, 2018) (citations omitted).

B. Pretrial Proceedings

After his arrest, Cairns was charged with one count of first degree murder for the death of

Zienkewicz, under the theory of transferred intent.2 See Commonwealth v. Cairns, CP-09-CR-

0003357-2013, Information (Bucks Ct. Com. Pl.). He was also charged with attempted murder,

assault on a law enforcement officer, discharge of a firearm into an occupied structure,

possession of an instrument of crime, and nine counts each of aggravated assault and recklessly

endangering another person. Id.

2 “Pursuant to the doctrine of transferred intent, the intent to murder may be transferred where the

person actually killed is not the intended victim.” Commonwealth v. Jones, 912 A.2d 268, 279 (Pa.

2006); see also 18 Pa. Stat. & Cons. Stat. § 303(b)(1); Commonwealth v. Thompson, 739 A.2d 1023,

1029–30 (Pa. 1999) (“The transferred intent theory provides that if the intent to commit a crime exists,

this intent can be transferred for the purpose of finding the intent element of another crime.” (quotation

marks omitted)).

Throughout his pretrial proceedings, Cairns was represented by Bucks County Public

Defenders Michael Lacson, Esq., and Alicia Baatz, Esq. In preparation for trial, Attorneys

Lacson and Baatz made formal, written discovery requests of the Commonwealth that sought,

among other things, Brady and Giglio material. See Commonwealth v. Cairns, CP-09-CR-

0003357-2013, Request for Pre-Trial Disco. (Bucks Ct. Com. Pl. June 6, 2013). They also filed

numerous pretrial motions on Cairns’s behalf, including a motion for state habeas corpus relief

challenging the sufficiency of the Commonwealth’s evidence on causation in connection with the

criminal homicide charge. Commonwealth v. Cairns, CP-09-CR-0003357-2013, PCRA Hearing

Tr. (Bucks Ct. Comm. Pl July 6, 2017), at 132:23–133:12 (“PCRA H’rg Tr.”). In addition,

Attorneys Lacson and Baatz hired an expert in ballistics and use of force, Dr. Emanual

Kapelsohn, to opine on the random nature of Cairns’s shots, how the lighting within and outside

of the apartment would have affected the visibility from Cairns’s bedroom, and whether Officer

Harold’s use of force was reasonable. Id. at 130:5–11.3

In the months leading up to trial, Cairns’s attorneys repeatedly met with Cairns to review

the evidence in their possession, to explain the nature of the charges against him, and to prepare

for trial. Id. at 132:2–15 (Attorney Lacson testifying that he and Attorney Baatz met with Cairns

to go “over basically every single piece of evidence that [they] had”). During one such meeting,

Cairns stated he would like to plead guilty. Id. at 144:17–145:2. Accordingly, defense counsel

turned their efforts to negotiating a plea with the Commonwealth on Cairns’s behalf, and

Attorney Lacson directed Dr. Kapelsohn, who had been hired on an hourly basis, to suspend

3 Before drafting a final report, Dr. Kapelsohn informed Attorney Lacson that he was unable to

provide a definitive opinion on the appropriateness of Officer Harold’s use of force at the scene. PCRA

H’rg Tr. at 130:19–25. This conclusion caused defense counsel to question whether they would

ultimately call Dr. Kapelsohn at trial. Id. at 1311–14.

work on the case. Id. at 131:15–22.

C. Guilty Plea Hearing

On January 17, 2014, Cairns entered a negotiated guilty plea. Under the plea agreement,

the Commonwealth sought leave to amend the Information to change the first degree murder

charge to third degree murder and to nolle pros the charges for attempted murder, assault of a

law enforcement officer, and one count of aggravated assault. See Commonwealth v. Cairns,

CP-09-CR-0003357-2013, Revised Information (Bucks Ct. Com. Pl.), at 1. Cairns, in turn,

agreed to plead guilty to third degree murder and the remaining charges. Id. At the January 17

hearing, the trial judge, the Honorable Jeffrey L. Finley, accepted Cairns’s guilty plea to the

Revised Information. See generally Commonwealth v. Cairns, CP-09-CR-0003357-2013, Guilty

Plea & Sentencing Tr. (Bucks Ct. Comm. Pl Jan. 17, 2014) (“Plea Tr.”).

During the plea colloquy, Cairns testified that he wished to plead guilty and that he could

hear and understand everything being said by Judge Finley. See id. at 3:25–4:12. At first, Cairns

testified that he was not, at the time, “under the influence of any type of drug, alcohol,

medication, or any other substance at all that would affect [his] ability to understand . . . the

consequences of pleading guilty.” Id. at 4:13–20. A few moments later, however, Cairns

admitted that he was under the care of a mental health professional and taking medication,

including Neurontin, Zyprexa, and BuSpar. Id. at 4:21–5:13; see also id. at 45:5–18 (defense

counsel recounting Cairns’s struggles from “bouts of mental illness” and acknowledging that he

is “on the medication that he wasn’t on before, which addresses his mental health illness”); id. at

46:13–16 (same). In response to further questioning by Judge Finley, Cairns maintained that he

understood the proceeding:

THE COURT: All right. Do you know of any reason,

whether that’s the underlying mental health issues or that

medication or any other reason at all, that would make it difficult for

you to understand what you and I are discussing today or the

consequences of this action or the rights that you’re giving up?

THE DEFENDANT: No, Your Honor.

Id. at 5:14–22. Cairns also confirmed that he “had sufficient opportunity to meet with counsel

and discuss . . . the charges and the evidence” along with “defenses that [he] might have been

able to raise.” Id. at 13:1–14; see id. at 13:15–21 (affirming that he was “satisfied with [his

counsels’] assistance” and “had sufficient time to meet with them”).

After this initial discussion, Judge Finley described each charge against Cairns, including

third degree murder and aggravated assault:

THE COURT: Now, you are pleading guilty to a number of

different crimes and I want to go over them.

The first is that of third-degree murder. That is an offense

where the Commonwealth, now by amending this bill of

information, has charged that on or about February 19th of 2013,

you did commit third-degree murder in that you did maliciously

cause the death of another person by your conscious disregard of an

unjustified and extremely high risk that your actions might cause

death or serious bodily injury.

Further, that you did, Andrew Graham Cairns, did repeatedly

shoot a handgun in the direction of police officers in a densely

populated area, which directly and substantially caused the death of

Marie Zienkewicz by causing the police to return fire. Do you

understand that?

THE DEFENDANT: Yes, Your Honor.

. . . .

THE COURT: All right. Now, the next offense is that of

aggravated assault. That is contained here in Cout[s f]ive through

12, that is that you did attempt by physical menace to put an officer,

agent, employee or another person in danger or fear of imminent

serious bodily injury. . . . Do you understand that, sir?

THE DEFENDANT: Yes, Your Honor.

Id. at 14:4–16:12.

After discussing each charge, Judge Finley asked Cairns whether anyone had “threatened,

forced or coerced [him] in any way into entering this plea of guilty,” to which Cairns responded,

“No, Your Honor.” Id. at 20:8–11. Last, Cairns confirmed that he was “entering this plea

knowingly, voluntarily, intelligently, and of [his] own free will,” and that he was pleading guilty

because he “d[id], in fact, agree that [he] committed these crimes.” Id. at 21:4–16.

At the end of this line of questioning, Attorney Lacson asked Cairns to confirm:

(1) counsel “went over [Cairns’s] case in the motions, jury selection . . . all of that with [him]”;

(2) “other members of [the Bucks County Public Defenders] office, more senior members of

[the] office . . . did the same thing: [they] went over [Cairns’s] case, the rights [he was] giving

up and the trial process”; and (3) “a more senior attorney in [the] office as well as [trial counsel]

went over the guilty plea colloquy and what it means to plead guilty.” Id. at 24:2–16. Cairns

answered “yes,” to each question. Id.

Afterward, the Commonwealth outlined the facts underlying the guilty plea in a recitation

substantially similar to the one given by the Court above. Id. at 25:2–34:9; see also id. at 34:10–

35:17 (incorporating the preliminary hearing transcript as providing an additional factual basis

for the guilty plea). And Cairns confirmed that the “facts as stated by the District Attorney on

the record” were “substantially correct and make out the charges that [he is] pleading guilty to.”

Id. at 36:12–16.

Finally, Judge Finley found that Cairns “entered his guilty plea knowingly, voluntarily,

and intelligently. He certainly to me seems to have a full and complete understanding of the

discussions we’ve had as to the rights he has to trial, the rights that he’s giving up by pleading

guilty, and the consequences of pleading guilty.” Id. at 47:16–48:2. Recognizing the highly

reckless nature of Cairns’s decision to shoot a gun at random, 19 times out of his bedroom

window, Judge Finley then sentenced Cairns to the recommended sentence of no less than 14 and

no more than 30 years’ incarceration on the third degree murder charge and no further penalty on

the remaining charges. Id. at 50:17–52:5.

Cairns did not file a direct appeal of his conviction or sentence.

D. Initial State Collateral Proceeding

Although Cairns did not file a direct appeal, he did seek collateral review pursuant to

Pennsylvania’s Post Conviction Relief Act (“PCRA”), filing his initial pro se petition with the

Bucks County Court of Common Pleas on December 4, 2014. Cairns later retained new counsel,

Joseph London, Esq., to represent him during the initial PCRA proceeding. See Commonwealth

v. Cairns, CP-09-CR-0003357-2013, Discovery Conference Tr. (Bucks Ct. Com. Pl. June 23,

2016).

1. Discovery Requests

Throughout that proceeding, Cairns and Attorney London filed numerous discovery

requests, seeking among other things, printed copies of the photos taken at the crime scene, any

report completed by Dr. Kapelsohn, and transcripts of 911 calls that Cairns made early in the day

on February 19, 2013 to report Silva’s mental state. See generally, e.g., Commonwealth v.

Cairns, CP-09-CR-0003357-2013, Request for Discovery (Bucks Ct. Com. Pl. Mar. 16, 2016);

Commonwealth v. Cairns, CP-09-CR-0003357-2013, Memo. of Law (Bucks Ct. Com. Pl. July 5,

2016). Judge Finley rejected the majority of those requests on the grounds that Cairns:

(1) sought discovery that was in the possession of his trial counsel, not the Commonwealth,

and/or (2) failed to prove exceptional circumstances warranted additional discovery at the PCRA

stage. See generally, e.g., Commonwealth v. Cairns, CP-09-CR-0003357-2013, Discovery

Conference Tr. (Bucks Ct. Com. Pl. June 23, 2016); Commonwealth v. Cairns, CP-09-CR-

0003357-2013, Order (Bucks Ct. Com. Pl. July 14, 2016).

2. Counseled Amended PCRA Petition

After Judge Finley rejected Cairns’s discovery requests, Attorney London filed an

Amended PCRA Petition on Cairns’s behalf on August 15, 2016. As relevant here, the Amended

PCRA Petition argued that Cairns’s trial attorneys were ineffective because they: (1) failed to

investigate the issues of causation and transferred intent in connection with the facts of his case,

(2) failed to effectively utilize Dr. Kapelsohn, who had concluded that Officer Harold’s use of

force at the scene was unreasonable, and (3) failed to properly advise Cairns about the law on

“transferred intent, felony murder rule, and the elements necessary for the Commonwealth to

prove beyond a reasonable doubt the charge of third degree murder.” Commonwealth v. Cairns,

CP-09-CR-0003357-2013, Amended PCRA Petition (Bucks Ct. Comm. Pl. Aug. 15, 2016), at

¶¶ 26–31 (“Amended PCRA Petition”). The court later allowed Cairns to orally amend his

Amended PCRA Petition for the limited purpose of adding an allegation that trial counsel were

also “ineffective for not knowing that [Cairns], because of the[ ] medications [that he was taking

on the day he pleaded guilty], was not knowingly and voluntarily and intelligently entering a

plea.” PCRA Hearing Tr. at 75:23–76:14.

In addition to his ineffective assistance of counsel claims, Cairns also argued that he was

entitled to relief because new exculpatory evidence had become available and would have altered

his decision to plead guilty. Amended PCRA Petition, at ¶¶ 35, 37. First, he argued that

“ballistic evidence” proved that Cairns “never fired a firearm at police or anyone else thus not

justifying the police returning fire and subsequently taking the life of . . . Zienkewicz.” Id.

Second, he argued that after the guilty plea, the “Warminster Township Police Department

settled a wrongful death action filed by the Estate of [Zienkewicz] for $650,000.” Id.

Finally, Cairns argued that “the delay in his receiving all related discovery documents,

videos, pictures, audio recordings, etc. . . . prejudiced [him] from being able to advocate an

adequate defense against the Commonwealth’s criminal charges.” Id. at ¶ 36.

3. PCRA Hearing

Judge Finley held a hearing on these arguments on July 6, 2017. See generally PCRA

H’rg Tr. During that hearing, Cairns testified on his own behalf and called three witnesses:

Silva, Dr. Kapelsohn, and Trial Attorney Lacson. See generally id. The Commonwealth cross

examined each witness but did not call additional witnesses. See generally id. After the hearing,

Cairns and the Commonwealth submitted competing memoranda on whether Cairns was entitled

to relief under the PCRA. In his memorandum, Cairns reiterated the arguments outlined above.

See Commonwealth v. Cairns, CP-09-CR-0003357-2013, Cairns’s PCRA Memo (Bucks Ct.

Comm. Pl. Sept. 19, 2017), at 6–8. In its response brief, the Commonwealth opposed each

ground for relief. See generally Commonwealth v. Cairns, CP-09-CR-0003357-2013,

Commonwealth PCRA Memo (Bucks Ct. Comm. Pl. Oct. 11, 2017). On October 25, 2017,

Judge Finley denied Cairns’s Amended PCRA Petition. See Commonwealth v. Cairns, CP-09-

CR-0003357-2013, Order (Bucks Ct. Comm. Pl. Oct. 25, 2017).

4. PCRA Appeal

Cairns, through new counsel, John J. Fioravanti, Jr., Esq., appealed Judge Finley’s denial

to the Pennsylvania Superior Court. See Commonwealth v. Cairns, 3655 EDA 2017, Notice of

Appeal (Pa. Super. Ct. Nov. 15, 2017). Cairns raised five broad questions on appeal:

[1.] Was trial counsel ineffective in inducing [Cairns] to

unknowingly plead guilty as there was not a factual basis?

[2.] Was trial counsel ineffective in inducing [Cairns] to plead

guilty at a time when he was not afforded the opportunity to review

discovery?

[3.] Was trial counsel ineffective in failing to engage the services

of an expert to establish improper police procedures to support

[Cairns’s] innocence?

[4.] Did the [initial PCRA] court err in failing to admit a

wrongful death settlement between Warminster Township and the

family of the deceased?

[5.] Did the [initial PCRA] court err in failing to find exceptional

circumstances, pursuant to 41 Pa. C.S. § 9545(d)(2) and Pa. R. Cr.

P. 902(E)(1), entitling Appellant to discovery requests?

Commonwealth v. Cairns (“Cairns PCRA Appeal”), No. 3655 EDA 2017, 2019 WL 1224696, at

*2 (Pa. Super. Ct. Mar. 15, 2019) (quoting Appellant’s Brief, at 4); see also Cairns Initial PCRA,

2018 WL 10484002, at *2–3.

On January 11, 2018, Judge Finley addressed each of the five errors in a written opinion,

issued pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).4 See generally Cairns

Initial PCRA, 2018 WL 10484002; see also 210 Pa. Code § 1925(a) (“Except as otherwise

prescribed by this rule, upon receipt of the notice of appeal, the judge who entered the order

giving rise to the notice of appeal, if the reasons for the order do not already appear of record,

shall . . . file of record at least a brief opinion of the reasons for the order, or for the rulings or

other errors complained of, or shall specify in writing the place in the record where such reasons

may be found.”). And on March 15, 2019, the Pennsylvania Superior Court affirmed Judge

Finley’s ruling in an unpublished opinion. See Cairns PCRA Appeal, 2019 WL 1224696 (Pa.

Super. Ct. Mar. 15, 2019).

4 In his Concise Statement of Errors Complained of on Appeal, Cairns identified 23 alleged

errors. See Commonwealth v. Cairns, 3655 EDA 2017, Concise Statement of Errors Complained of on

Appeal (Pa. Super. Ct. Dec. 20, 2017). In his opinion, Judge Finley viewed the 23 errors as stating six

broad categories of error on appeal—the five categories identified above and a sixth related to whether

trial “counsel was ineffective for allowing [Cairns] to proceed to a guilty plea when he was under the

influence of various medications.” Cairns Initial PCRA, 2018 WL 10484002, at *2–3. Judge Finley

rejected this sixth claim, finding “there is no evidence to support the claim aside from [Cairns’s] own

post-plea self-serving testimony,” which is contradicted by the “record and testimony by guilty plea

counsel.” Id. at *5. In his papers to the Superior Court, Cairns essentially adopted Judge Finley’s

distillation of the questions raised on appeal, but he omitted any reference to “the claim that counsel

allowed [Cairns] to plead while under the influence of medications.” Accordingly, the appellate court

found this claim abandoned. Cairns PCRA Appeal, 2019 WL 1224696, at *2 n.4.

We briefly discuss each court’s findings below.

a. Factual Basis for Third Degree Murder

First, Judge Finley found that a valid factual basis existed for Cairns’s guilty plea to third

degree murder. Cairns Initial PCRA, 2018 WL 10484002, at *3. Relying on Pennsylvania

cases, Judge Finley explained the legal standards for malice, causation, and transferred intent,

and found that each standard was supported by the facts underlying Cairns’s case. Id. at *3–4

(citing Commonwealth v. Fisher, 80 A.2d 1186, 1191 (Pa. 2013) and Commonwealth v. Jones,

912 A.2d 268, 280 (Pa. 2006)). Importantly, Judge Finley concluded:

[Cairns] need not have intended any particular person to be injured

in order to satisfy the elements of Third Degree Murder. It is

sufficient that [Cairns] intentionally acted by shooting nineteen

times out of this window into an area where anyone, including the

responding officers waiting along the perimeter, could have been

shot and killed with complete disregard for the consequences of his

actions . . . . This malicious intent was transferred to Ms.

Zienkewicz . . . . Appellant’s conduct, his recklessness of

consequences, and conscious disregard for the extremely high risk

that his conduct might cause death or serious bodily injury, and the

fact that his conduct did result in Ms. Zienkewicz’s death, is

sufficient to establish Third Degree Murder.

Id. at *4; see also id. at *5 (“[T]his Court finds that a sufficient factual basis supports

Appellant’s guilty plea to Third Degree Murder.”). Because Cairns “failed to prove that his

claim challenging the Third Degree Murder conviction has arguable merit,” his ineffective

assistance of counsel likewise failed. Id. at *5.

On appeal, the Pennsylvania Superior Court affirmed this ruling: “[T]he trial court

correctly decided that the Commonwealth properly established a factual basis for third degree

murder. [Cairns] consciously disregarded an unjustified and extremely high risk that his actions

in shooting nineteen times might cause serious bodily injury. The PCRA court properly

determined this claim lacked arguable merit.” Cairns PCRA Appeal, 2019 WL 1224696, at *4.

b. Opportunity to Review Discovery

Next, Judge Finley considered Cairns’s argument that “counsel was ineffective for

allowing [him] to proceed to a guilty plea . . . when he did not have the benefit of reviewing the

discoverable materials.” Cairns Initial PCRA, 2018 WL 10484002, at *3. Judge Finley rejected

Cairns’s self-serving testimony at the PCRA hearing that he had been denied access to discovery

materials. Judge Finley found “Cairns’s testimony to be self-serving and found [Cairns] to be an

overall incredible witness,” who “frequently gave different responses to the same questions

asked of him,” “altered his answers several times,” and admitted that “he had previously lied to

this Court.” Id. at *5. Instead, Judge Finley credited Attorney Lacson’s testimony that he “went

over basically every single piece of evidence that [he] had” with Cairns. Id. at *6.

On appeal, the Superior Court found that Cairns was asking it to “ignore [Judge Finley’s]

credibility determinations.” Cairns PCRA Appeal, 2019 WL 1224696, at *5. It declined to do

so, and accordingly, found that Cairns’s argument did not merit relief. Id.

c. Dr. Kapelsohn’s Expert Opinion

Next, Judge Finley rejected Cairns’s argument that trial counsel were “ineffective for

failing to fully utilize the services of expert Emanuel Kapelsohn.” Cairns Initial PCRA, 2018

WL 10484002, at *3. The court found that “counsel had a reasonable strategic basis for

instructing Dr. Kapelsohn to suspend all work on this case before counsel obtained Dr.

Kapelsohn’s completed report.” Id. at *6 (referencing trial counsel’s testimony that Dr.

Kapelsohn was previously unable to opine on the reasonableness of the officer’s use of force and

counsel’s concern that if called, Dr. Kapelsohn’s conclusions on this issue would be used to

harm the defense).

On appeal, the Superior Court rejected Cairns’s claim that trial counsel were ineffective

for failing “to fully engage” Kapelsohn. Cairns PCRA Appeal, 2019 WL 1224696, at *5. The

court found that because Cairns failed to raise the argument in his Amended PCRA Petition, he

waived it, and it could not be considered on appeal. Id. at *6 (citing Commonwealth v. Santiago,

855 A.2d 682, 691 (Pa. 2004)). In the alternative, the court found that Cairns could not establish

prejudice or arguable merit as to this claim because his “self-serving claim that a ballistic

expert’s testimony would have swayed a hypothetical jury on the issue of whether [Cairns] had

the requisite ‘malicious state of mind,’ is unsupported by pertinent authority and merely

speculative.” Id. at *6.

d. Wrongful Death Settlement

Fourth, Cairns argued that Judge Finley erred in prohibiting Cairns from introducing the

settlement between Warminster Township Police Department and Ms. Zienkewicz’s family.

Cairns Initial PCRA, 2018 WL 10484002, at *7. Judge Finley noted that he had accepted the

settlement as evidence during the July 6, 2017 PCRA hearing, but nonetheless found that the

settlement did not constitute newly-discovered evidence that warranted relief. Id. (finding that

contrary Cairns’s assertions, the settlement “does not constitute exculpatory evidence” because

Cairns was not a party to the settlement and the Township denied liability in connection with the

settlement).

Similarly, the appellate court rejected Cairns’s assertion that Judge Finley erred when he

failed to admit a wrongful death settlement. Cairns PCRA Appeal, 2019 WL 1224696, at *6.

Because Judge Finley did admit the settlement agreement into evidence, this claim on appeal was

frivolous. Id. Accordingly, the court declined to consider whether the settlement agreement

should be considered newly discovered evidence. Id. at *6 n.7. Relatedly, the appellate court

dismissed Cairns’s argument that the settlement agreement was exculpatory as to him, noting

that he was not a party to the agreement and that the Township denied responsibility in it. Id. at

*6.

e. PCRA Discovery Requests

Finally, Judge Finley rejected Cairns’s argument that he erred by denying Cairns’s

discovery requests at the PCRA level. Cairns Initial PCRA, 2018 WL 10484002, at *8. The

Pennsylvania Rules of Criminal Procedure allow discovery in a postconviction proceeding only

when the petitioner pleads and proves the existence of “exceptional circumstances.” Id. After

reviewing each of Cairns’s discovery requests, Judge Finley found that Cairns failed to meet this

burden because “[m]any of [Cairns’s] requests were grounded in mere speculation and were

nothing more than a fishing expedition in hopes that he may discover some exculpatory

evidence.” Id.

The appellate court likewise rejected Cairns’s claim that Judge Finley erroneously denied

his discovery requests. Cairns PCRA Appeal, 2019 WL 1224696, at *6. Among other things,

the appellate court noted that Cairns failed “to demonstrate how the documents were

exculpatory, or why the discovery requests were exceptional.” Id. Accordingly, it found “no

abuse of discretion by the PCRA court” and declined to disturb Judge Finley’s ruling. Id.

* * *

Cairns appealed the Superior Court’s ruling to the Pennsylvania Supreme Court, which

denied his petition for allowance of appeal on October 9, 2019.

E. Habeas Proceedings

On October 31, 2019, Cairns filed a pro se habeas petition in this case. (See Doc. No. 1;

see also Doc. No. 15.) His initial petition raised six grounds for habeas relief:

• Ground 1: Trial counsel were ineffective for allowing Cairns to plead guilty to

aggravated assault when there was no factual basis to support that charge

• Ground 2: Trial counsel were ineffective for allowing Cairns to plead guilty to third

degree murder when there was no factual basis to support that charge

• Ground 3: Trial counsel were ineffective because they gave inaccurate advice and

“coerc[ed] Mr. Cairns to plead guilty”

• Ground 4: Trial counsel were ineffective because they failed to properly identify a

Brady violation

• Ground 5: Trial counsel were ineffective when they failed to recognize that Cairns’s

medications impaired his cognitive functioning during the guilty plea hearing

• Ground 6: The initial PCRA court erred in failing to admit into evidence the

Warminster Township Police Department’s settlement with Zienkewicz’s family

(Doc. No. 1 (identifying each ground for relief).) On these bases, Cairns asks this Court to

withdraw his guilty plea and grant him a trial. The Commonwealth opposes the petition, arguing

that Cairns failed to exhaust Grounds 1, 3, 4, and 5, because he failed to raise those claims at all

stages of his PCRA proceeding. (See Doc. No. 8.) The Commonwealth also argues that Cairns

has failed to show ineffective assistance of trial counsel as to any of the stated grounds for relief.

(Id.)

On June 4, 2020, Cairns filed an amended habeas petition, which explained, in detail, the

basis for his request for relief. (See Doc. No. 15.) The Amended Petition is extremely long, but

it appears to assert many of the same arguments asserted in Cairns’s initial petition. (See id. at

10.) Cairns also requested an evidentiary hearing on the issues raised in the Amended Petition.

(Id. at 98.) The Commonwealth filed an answer in opposition to the Amended Petition, arguing

that Cairns’s claims are not cognizable on habeas review and are procedurally defaulted and/or

meritless. (Doc. No. 26.) Cairns filed a reply brief. (Doc. No. 27.)

On March 10, 2022, Magistrate Judge Lloret entered an R&R, finding that “Mr. [Cairns]

presents no grounds for relief” and recommending that Cairns’s “petition be dismissed with

prejudice.” (Doc. No. 28 at 1.) Specifically, Judge Lloret found each of the six grounds

unexhausted, procedurally defaulted, and/or meritless. (See generally id.) Judge Lloret also

recommends denying Cairns’s request for an evidentiary hearing. (Id. at 24–25.)

Cairns objects to all but one section of the R&R. (Doc. No. 34.)5 He also renews his

request for discovery/an evidentiary hearing. (See Doc. No. 40.) Last, Cairns argues that Judge

Lloret “abandoned his role as independent arbiter of the facts and assumed the role as advocate

or co-counsel for the State . . . displaying an appearance of impropriety.” (Id. at 5–6 (citing Day

v. McDonough, 547 U.S. 198 (2006).) The Commonwealth opposes Cairns’s objections and asks

the Court to adopt the R&R in its entirety. (See Doc. No. 35.)

II. LEGAL STANDARD

“In the Eastern District of Pennsylvania, Local Rule 72.1.IV(b) governs a petitioner’s

objections to a magistrate judge’s report and recommendation.” Piasecki v. Ct. of Common

Pleas, No. 14-cv-7004, 2021 WL 1105338, at *3 (E.D. Pa. Mar. 23, 2021). Under that Rule, a

petitioner must “specifically identify the portions of the proposed findings, recommendations, or

report to which objection is made and the basis for such objections.” Id. (quoting Savior v.

Superintendent of Huntingdon SCI, No. 11-cv-5639, 2012 WL 4206566, at *1 (E.D. Pa. Sept. 20,

2012)).

When a party objects to a magistrate judge’s findings, the district court must make “a de

novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); United States v. Raddatz,

447 U.S. 667, 673 (1980). “Ultimate adjudicatory power” resides with the district court “after

receiving assistance from and the recommendation of the magistrate.” Raddatz, 447 U.S. at 692.

5 Cairns does not object to Judge Lloret’s findings and conclusions on his sixth ground for relief

regarding the admission of the Township’s settlement with the Zienkewicz family. After reviewing Judge

Lloret’s analysis on this ground, the Court agrees with his findings and conclusions and adopts the R&R

on this point. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (“Even absent

objections to the report and recommendation, a district court should afford some level of review to

dispositive legal issues raised by the report.” (quotation marks omitted)); see also Mathews v. Weber, 423

U.S. 261, 271 (1976) (“[T]he authority and responsibility to make an informed final determination

remains with the [district court] judge.”).

And after reviewing the magistrate judge’s conclusions, the district court may “accept, reject, or

modify, in whole or in part, the findings or recommendations” and “receive further evidence, or

recommit the matter to the magistrate with instructions.” 28 U.S.C. § 636(b)(1); Raddatz, 447

U.S. at 673–74. But “[o]bjections [that] merely rehash an argument presented to and considered

by a magistrate judge are not entitled to de novo review.” Gray v. Delbiaso, Civil Action No.

14-4902, 2017 WL 2834361, at *4 (E.D. Pa. June 30, 2017); see also Prout v. Giroux, Civil

Action No. 14-3816, 2016 WL 1720414, at *11 (E.D. Pa. Apr. 29, 2016) (“Where objections do

not respond to the Magistrate’s recommendation, but rather restate conclusory statements from

the original petition, the objections should be overruled.”).

III. DISCUSSION

The Court addresses Cairns’s objections to Judge Lloret’s recommendations before

turning to Cairns’s renewed request for an evidentiary hearing and/or additional discovery and

Cairns’s argument that Judge Lloret was improperly biased in favor of the Commonwealth.

A. Judge Lloret’s Findings and Conclusions

As stated above, Judge Lloret recommends dismissal of the Amended Petition because

each ground for relief is unexhausted, procedurally defaulted, and/or meritless. The Court

discusses the standards governing these concepts in turn before addressing the substance of

Cairns’s objections to the R&R.

1. Legal Standards

a. Exhaustion of State Court Remedies

A petitioner for a writ of habeas corpus must exhaust his remedies at the state level

before he can present his claims in federal court. 28 U.S.C. § 2254(b)(1)(A). If “he has the right

under the law of the State to raise, by any available procedure, the question presented,” then the

petitioner has not exhausted his state court remedies. 28 U.S.C. § 2254(c). The exhaustion

requirement “ensures that the same method of legal analysis that is used by the federal court in

resolving the petitioner’s claim was also readily available to the state court when it adjudicated

the claim.” Landano v. Rafferty, 897 F.2d 661, 669 (3d Cir. 1990). Federal courts must

rigorously enforce this requirement out of respect for the principles of comity and federalism.

Rose v. Lundy, 455 U.S. 509, 510 (1982); see also Engle v. Isaac, 456 U.S. 107, 128 (1982)

(“The States . . . hold the initial responsibility for vindicating constitutional rights. Federal

intrusions into state criminal trials frustrate both the States’ sovereign power and their good-faith

attempts to honor constitutional law.”).

The petitioner bears the burden of demonstrating each of his claims has been exhausted.

Rose, 455 U.S. at 515. Satisfying this burden involves establishing that the federal claims were

“fairly presented” to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971). To establish

fair presentation, “it is not enough that the petitioner present[ed] to the state court the facts upon

which a federal claim is based.” Brown v. Cuyler, 669 F.2d 155 (3d Cir. 1982) (per curiam).

Rather, the petitioner must have “provide[d] the state courts with both the same legal theory and

the same factual predicate underlying the constitutional argument.” Landano, 897 F.2d at 669.

If the state courts have not been given “one full opportunity” to address the claim being pursued

in the federal habeas proceeding, then the claim was not fairly presented. Rose, 455 U.S. at 515.

In such an instance, the claim is considered unexhausted and must be dismissed so that the state

court can consider it in the first instance. Id.

b. Procedural Default

Where a petitioner’s claim is unexhausted, but state procedural rules would bar him from

obtaining relief in the state courts, the claim is considered procedurally defaulted. Keller v.

Larkins, 251 F.3d 408, 413 (3d Cir. 2001).

Procedural default also occurs if the claim was exhausted, and the state court ruling was

based on an independent and adequate state rule. Gray v. Netherland, 518 U.S. 152, 162 (1996).

An independent state-law ground is one that is not “interwoven with the federal law.” Coleman

v. Thompson, 501 U.S. 722, 735 (1991). It could be “a substantive rule dispositive of the case, or

a procedural barrier to adjudication of the claim on the merits.” Walker v. Martin, 562 U.S. 307

(2011). Meanwhile, an adequate state rule is one that is “firmly established and regularly

followed.” Beard v. Kindler, 558 U.S. 53, 60 (2009). To be “firmly established,” the state rule

must clearly warn the defendant of the rule and its consequences; and to be “regularly followed,”

the state rule must be one that is consistently cited in similar cases or used in other federal and

state habeas courts across the country. Johnson v. Lee, 578 U.S. 605, 608–09 (2016). An

adequate state rule can exist even if it does not apply in every habeas case. See Beard, 558 U.S.

at 60–61 (noting that “the appropriate exercise of discretion may permit consideration of a

federal claim in some cases but not others”). If the decision of the highest state court to which

the petitioner presented his federal claims was not based “primarily on . . . [or] interwoven with

federal law,” then there was an independent and adequate state rule to support the judgment, and

the claim is considered procedurally defaulted. Id. at 735.

Federal courts cannot consider procedurally defaulted claims unless the petitioner can

show “cause for the default and actual prejudice as a result of the alleged violation of federal

law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of

justice.” Coleman, 501 U.S. at 750.

i. Cause and Actual Prejudice

Cause for procedural default exists when “some 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). And actual prejudice exists where the cause for default “worked to [the

petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982).

Ineffective assistance of trial or direct appeal counsel can be a cause for procedural

default. Richardson v. Superintendent Coal Twp. SCI, 905 F.3d 750, 759 (3d Cir. 2018). In

Strickland v. Washington, the Supreme Court established a two-pronged test that federal habeas

petitioners must satisfy in ineffective assistance of counsel claims. 466 U.S. 668, 687–88

(1984). First, the petitioner must demonstrate that trial counsel’s performance was objectively

unreasonable. Id. To do so, the petitioner must show specific acts by his counsel that fell

“outside the wide range of professionally competent assistance.” Id. When evaluating counsel’s

conduct, a federal court must “indulge [in] a strong presumption” that counsel acted reasonably.

Id. at 689. Counsel’s actions must be considered under the totality of the circumstances, “viewed

as of the time of [said] conduct,” and deference must be given to strategic decisions made by

counsel. Id. at 689–91 (“[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.”).

If the petitioner can show that his trial counsel committed unreasonable errors, he moves

on to the second Strickland prong and must prove to a “reasonable probability” that said errors

prejudiced the result in his case. Id. at 694. A reasonable probability is one that is “sufficient to

undermine confidence in the outcome.” Id. The petitioner must show how counsel’s

unprofessional errors “actually had an adverse effect on the defense.” Id. at 693.

Unlike the right to effective assistance from trial and direct appeal counsel—which is

grounded in the Sixth Amendment—there is no federal constitutional right to collateral appeal

counsel. Coleman, 501 U.S. at 754. So, although ineffective assistance of trial and direct appeal

counsel may excuse a procedural default if counsel’s failures satisfy Strickland, ineffective

assistance of collateral appeal counsel cannot, on its own, excuse a procedural default. Id. at

753–54. Nonetheless, in Martinez v. Ryan, the Supreme Court established an equitable

exception whereby inadequate assistance of counsel at initial-review collateral proceedings may

establish cause for a prisoner’s procedurally defaulted claim of ineffective assistance of trial

counsel. 566 U.S. 1, 9 (2012). The federal courts construe this exception narrowly, applying it

only where the habeas petitioner was “impeded or obstructed in complying with the State’s

established procedures.” Id. at 13; see also Trevino v. Thaler, 569 U.S. 413, 429 (2013) (holding

that the Martinez exception applies only when state procedural rules require the petitioner to

raise his ineffective-assistance claims at state habeas rather than on direct appeal, or where state

procedural rules “make[ ] it highly unlikely in a typical case that a defendant will have a

meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct

appeal.”).

Because Pennsylvania’s procedural rules dictate that a habeas petitioner should wait until

initial-review collateral proceedings to raise claims of ineffective assistance of trial counsel, a

habeas petitioner who was convicted under Pennsylvania law can rely on Martinez to excuse a

procedurally defaulted Strickland claim. See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.

2002). The Third Circuit views Martinez as a three-part test such that a habeas petitioner

qualifies for the exception only if he can show that: (1) his procedural default was caused by

ineffective assistance of post-conviction counsel or the absence of counsel in the initial-review

collateral proceeding, (2) this ineffectiveness of counsel was raised in the first collateral

proceeding when the claim could have been heard, and (3) the underlying claim of trial counsel

ineffectiveness has some merit. Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014) (citing Martinez,

566 U.S. at 13–14). Should the petitioner fail to satisfy any of these three conditions, his claim

will remain procedurally defaulted without excuse and the federal habeas court will be barred

from granting it. Id. at 119–21.

ii. Fundamental Miscarriage of Justice

In addition to cause and prejudice, a petitioner may overcome a procedural default by

showing a fundamental miscarriage of justice would result if habeas review were denied. A

fundamental miscarriage of justice is proven when a petitioner shows that he is “innocent of the

charge for which he was incarcerated.” Kuhlmann v. Wilson, 477 U.S. 436 (1986). The

Supreme Court has “consistently reaffirmed the existence and importance of [this] exception” for

allowing review of a procedurally defaulted claim and thus the potential correction of a

procedural injustice. Schlup v. Delo, 513 U.S. 298. That said, the Court has limited application

of this exception to extraordinary circumstances and has not extended it to cases where

petitioner’s “guilt is conceded or plain.” Kuhlmann, 477 U.S. at 452.

c. Denial on the Merits as an Alternative to Procedural Bar Issues

Generally, a petitioner must satisfy the exhaustion requirement or excuse any

procedurally defaulted claim before a federal court will review the merits of their claim.

Edwards v. Carpenter, 529 U.S. 446, 451 (2000). However, pursuant to 28 U.S.C. § 2254(b)(2),

a federal court can bypass these procedural issues and deny a petitioner’s application on the

merits. Section 2254(b)(2) codified the Supreme Court’s decision in Granberry v. Greer, which

held that federal district court judges can “summarily . . . dismiss a habeas petition if it plainly

appears from the face of the petition and any exhibits annexed to it that the petitioner is not

entitled to relief in the district court.” 481 U.S. 129, 135–36 (1987). Where “reasonable jurists

could debate whether . . . the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further,” the claim has

“some merit” and the federal court must consider the procedural bar issues. Workman v.

Superintendent Albion SCI, 15 F.3d 928, 938 (3d Cir. 2019) (quoting Miller-El v. Cockrell, 537

U.S. 322, 336 (2003)). On the other hand, if “it is perfectly clear that the applicant does not raise

even a colorable federal claim,” then the federal court can deny the petitioner’s application on

the merits. Lambert, 134 F.3d at 515.

d. Section 2254(d) Standard

If a petitioner shows that his claim is exhausted and not procedurally defaulted, or that

the procedural default is excused, the federal court may grant habeas relief only if the petitioner

satisfies the standard outlined in § 2254(d)(1) or (2). Under the first subsection, the petitioner

must show that the state court’s decision was “contrary to, or involved an unreasonable

application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1). For a state court

decision to be “contrary to” clearly established federal law, “the state court [must] arrive at a

conclusion opposite to that reached by the Supreme Court on a question of law or . . . decide[ ] a

case differently than the Supreme Court has on a set of materially indistinguishable facts.”

Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (cleaned up). A state court decision

involves an “unreasonable application of” clearly established federal law when “[it] resulted in

an outcome that cannot reasonably be justified under existing Supreme Court precedent.” Id. at

890. This occurs when the state court “identifie[s] the correct governing legal rule . . . but

unreasonably applie[s] it to the facts of the particular . . . case” or when the state court

“unreasonably extend[s] a legal principle from [Supreme Court] precedent to a new context

where it should not apply or unreasonably refuse[s] to extend that principle to a new context

where it should apply.” Williams, 529 U.S. at 407.

Should the petitioner fail to satisfy § 2254(d)(1), federal habeas relief will be denied

unless he can show under § 2254(d)(2) that the state court decision was “based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). There is a presumption of correctness for factual

determinations made by state court judges, and the petitioner bears the burden of rebutting this

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Lambert v.

Blackwell, 387 F.3d 210, 234 (3d Cir. 2004). However, if “the state court has not reached the

merits of a claim thereafter presented to a federal habeas court, the deferential standards

provided by [§ 2254(d)] . . . do not apply.” Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). In

such instance, the federal court will review questions of law and mixed questions of law and fact

de novo. Id.; see also McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).

2. Analysis

With these legal standards in mind, the Court turns to Cairns’s objections to Judge

Lloret’s findings and conclusions as to five of the six bases on which he seeks habeas relief. The

Court addresses each in turn.

a. Ground 1: Trial Attorneys Were Ineffective for Allowing Cairns to

Plead Guilty to Aggravated Assault

First, Cairns argues that he is entitled to habeas relief because his trial attorneys were

ineffective for allowing him to plead guilty to aggravated assault without explaining the mens rea

required for that crime and without first obtaining a ballistics report from Dr. Kapelsohn. (Doc.

No. 1 at 8–9; Doc. No. 15 at 23–32.) Judge Lloret recommends that we reject this claim as

unexhausted, procedurally defaulted, and meritless. (Doc. No. 28 at 11–12.) Cairns

acknowledges that this claim “was not presented to the state courts,” and because he could not

present it to the state courts now, the claim “is procedurally defaulted.” (Doc. No. 34 at 6.)6 He

6 Cairns raised the issue of Dr. Kapelsohn’s report in his PCRA challenge to the third degree

murder charge, but not as a challenge to his convictions for aggravated assault.

argues, however, that the procedural default is excused because he can show under Martinez that

his PCRA counsel was ineffective for failing to raise the claim in his Amended PCRA Petition.

(Id. at 7–15.) The Court agrees with Judge Lloret that Cairns cannot show excuse for the

procedural default under Martinez because he cannot show that there is some merit to his

underlying claim for ineffective assistance of trial counsel. See Cox, 757 F.3d at 119 (citing

Martinez, 566 U.S. at 13–14).

i. Mens rea

Cairns argues that his trial attorneys were ineffective because they failed to accurately

explain the mens rea required for a conviction of aggravated assault under § 2702(a)(6). (Doc.

No. 1 at 8–9; Doc. No. 15 at 23–32.) Specifically, Cairns argues that his trial attorneys failed to

explain to him that to commit aggravated assault he had to have “the conscious object to injure

someone.” (Doc. No. 34 at 8, 14–15 (describing this as “the requisite mens rea to commit

[a]ggravated [a]ssault”).)

A defendant commits aggravated assault when he “attempts by physical menace to put” a

police officer “while in the performance of duty, in fear of imminent serious bodily injury.” 18

Pa. Stat. & Cons. Stat. § 2702(a)(6), (c)(1). Cairns seems to read the word “attempt” in

§ 2702(a)(6) to mean that conviction of this charge would have required the prosecution to

establish specific intent to injure the police officers. (Doc. No. 34 at 9–11.) This misunderstands

the law. Pennsylvania courts have explained that a defendant need not have a “specific intent to

cause injury” to “attempt[ ] by physical menace” to place someone “in fear of imminent serious

bodily injury.” See In re Maloney, 636 A.2d 671, 674 (Pa. Super. Ct. 1994) (excluding

§ 2701(a)(3) from list of charges that “required a specific intent to cause injury”); see also id.

(“[T]he act of pointing a gun at another person can constitute a simple assault as an attempt by

physical menace to put another in fear of imminent serious bodily injury.” (quotation marks

omitted)).7 Because a specific intent to injure is not an element of aggravated assault under

§ 2706(a), Cairns’s trial attorneys were not deficient for failing to discuss this mens rea with him

before he pleaded guilty.8

Neither has Cairns shown that his trial attorneys otherwise failed to explain the law

governing aggravated assault. “When addressing a guilty plea, counsel is required to give a

defendant enough information to make a reasonably informed decision whether to accept a plea

offer.” United States v. Bui, 795 F.3d 363, 367 (3d Cir. 2015) (cleaned up). Cairns’s trial

counsel did so.

During the plea hearing, Cairns repeatedly confirmed that his attorneys went over the

plea colloquy, including the law of aggravated assault, with Cairns before the hearing. Plea Tr.

at 6:11–16 (“THE COURT: It’s my understanding, from speaking to your attorneys, you and

your attorneys went over this colloquy yesterday, this discussion of law; is that correct? THE

7 The language of § 2702(a)(6) is nearly identical to the language used to define simple assault in

§ 2701(a)(3). Compare 18 Pa. Stat. & Cons. Stat. § 2702(a)(6) (“A person is guilty of aggravated assault

if he . . . attempts by physical menace to put any of the officers, agents, employees or other persons

enumerated in subsection (c), while in the performance of duty, in fear of imminent serious bodily

injury.”), with id. § 2701(a)(3) (“A person is guilty of assault if he . . . attempts by physical menace to put

another in fear of imminent serious bodily injury.”). The only difference between the two sections is

whether the victim of the assault is a law enforcement agent. See Commonwealth v. Henderson, No. 524

MDA 2013, 2014 WL 10937085, at *6 (Pa. Super. Ct. May 13, 2014) (“The salient difference between

the simple assault by physical menace subsection and the aggravated assault by physical menace

subsection is the occupation of the victim; the aggravated assault section requires that the victim be one of

27 enumerated ‘officers, agents, or employees,’ while the simple assault subjection requires that the

victim merely be another person.” (quotation marks omitted)).

8 For this reason, Cairns also has not shown a “reasonable probability” that he would have chosen

not to plead guilty if his attorneys had discussed specific intent. Weeks v. Snyder, 219 F.3d 245, 259 (3d

Cir. 2000) (explaining that a petitioner demonstrate prejudice under Strickland in the guilty plea context

by demonstrating that “there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial” (quotation marks omitted)); see also id. at 260

(“In order to examine the prejudice issue, we must first determine what Willard would have learned had

he researched the effect of Govan’s refusal to testify. We must then determine whether there is a

reasonable probability that if Weeks had been informed of the results of this research, he would have

insisted on going to trial.”).

DEFENDANT: Yes, Your Honor.”); id. at 13:1–21 (“THE COURT: Now, you had sufficient

opportunity to meet with counsel and discuss these matters? THE DEFENDANT: Yes, Your

Honor. THE COURT: You and Ms. Baatz and Mr. Lacson have met and discussed the charges

and the evidence; is that correct? THE DEFENDANT: Correct. . . .”); id. at 24:2–16 (“BY MR.

LACSON: Q. Mr. Cairns, both myself and Ms. Baatz, we went over your case in the motions,

jury selection, we went over all that with you; is that correct? A. Yes. Q. There were also other

members of our office, more senior members of our office, that did the same thing: that went

over your case, the rights you’re giving up and the trial process; is that correct? A. Yes. Q. We

also had a more senior attorney in our office as well as me and Ms. Baatz went over the guilty

plea colloquy and what it means to plead guilty; is that correct? A. Yes.”).

At the PCRA hearing, Attorney Lacson reiterated that he and other attorneys from his

office explained the law governing each charge, including aggravated assault, to Cairns before

the plea hearing. See PCRA H’rg Tr. at 145:21–25 (“A. . . . We went through each charge and

we spoke about the relative likelihood. Q. So you specifically remember doing that prior to the

plea? A. Yes, sir.”); id. at 150:23–25 (“Q. And did you go over with him the various legal

aspects of the case as well? A. Yes.”).

Finally, even if Cairns could show that his trial attorneys’ advice before the guilty plea

was objectively unreasonable, his claim for ineffective assistance of trial counsel fails because he

cannot show that he was prejudiced. To show prejudice, Cairns must “demonstrate that there is a

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

have insisted on going to trial.” Weeks, 219 F.3d at 259 (quotation marks omitted). Here, Cairns

was not prejudiced by any error in counsel’s discussion of the law on aggravated assault because

Judge Finley accurately recited the language of § 2702(a)(6) during the plea colloquy:

THE COURT: All right. Now, the next offense is that of

aggravated assault. That is contained here in Count[s f]ive through

12, that is that you did attempt by physical menace to put an officer,

agent, employee or another person in danger or fear of imminent

serious bodily injury. . . . Do you understand that, sir?

THE DEFENDANT: Yes, Your Honor.

Plea Tr. at 15:20–16:12. See Weeks, 219 F.3d at 260 (“Th[e plea] colloquy belies [petitioner’s]

assertion that he would have insisted on going to trial if he had known about the legal

ramifications of [the government witness’s] refusal to testify. In light of the judge’s clear

explanation to [the petitioner] of the uncertainty with respect to the admissibility of [the

witness’s] statements, [trial counsel’s] alleged failure to do so can hardly have prejudiced [the

petitioner]. The absence of prejudice from the alleged deficient legal representation is clear.”).

ii. Ballistics Report

Next, Cairns argues that his trial attorneys were ineffective because they allowed him to

plead guilty to aggravated assault without first obtaining an expert report from Dr. Kapelsohn.

(Doc. No. 34 at 13–15.) According to Cairns, that report would have shown that he could not

have seen the police officers from his bedroom window and that the shots, as fired, were not

directed toward the police.9 (Id.) But, as Judge Lloret notes, this argument is belied by the fact

that it was Cairns that “volunteered without provocation to plead guilty.” (Doc. No. 28 at 13.)

Up until this time, trial counsel had been preparing for a jury trial and had been consistently

9 Cairns reasons that if he did not know the police officers were there, he could not have been

found guilty of aggravated assault. The Court notes however, that the facts recited at the plea hearing,

and to which Cairns agreed, see Plea Tr. at 25:2–34:9, 36:12–16, show that he did “attempt by physical

menace” to place the officers in “fear of imminent serious bodily injury.” “Pointing a gun at an officer

constitutes an attempt by physical menace to place the officer in fear of imminent serious bodily injury.”

Henderson, 2014 WL 10937085, at *6. During the plea hearing, Cairns conceded that he “did repeatedly

shoot a handgun in the direction of police officers.” Plea Tr. 14:19–15:2; 16:23–17:11; see also id. at

34:23–35:6 (trial counsel explaining that “Mr. Cairns is pleading guilty to firing his weapon in the

direction of the police officers”).

corresponding with Dr. Kapelsohn about the written report and keeping Cairns up to date with

such correspondence. PCRA H’rg Tr. at 37:2–38:12, 138:21–139:2, 162:20–25. Only after

Cairns decided to plead guilty did trial counsel instruct the expert to suspend, and then ultimately

terminate, his work on the report. Id. at 37:11–24, 158:15–159:4. “[W]hen a defendant has

given counsel reason to believe that pursuing certain investigations would be fruitless or even

harmful, counsel’s failure to pursue those investigations may not later be challenged as

unreasonable.” Strickland, 466 U.S. at 691. Thus, by volunteering to plead guilty, Cairns gave

trial counsel a reasonable basis for instructing Dr. Kapelsohn to stop working on the expert

report and cannot now argue that this decision amounts to deficient performance.

* * *

Cairns has not shown that his trial counsel rendered ineffective assistance in connection

with his plea for aggravated assault. Accordingly, Cairns’s PCRA counsel was not ineffective

for failing to raise this specific argument on PCRA review. See United States v. Sanders, 165

F.3d 248, 253 (3d Cir. 1999) (“There can be no Sixth Amendment deprivation of effective

assistance of counsel based on an attorney’s failure to raise a meritless argument.”). Cairns does

not qualify for the Martinez exception. Thus, this claim remains procedurally defaulted, and

Cairns’s request for habeas relief is denied on this ground.

b. Ground 2: Trial Attorneys Were Ineffective for Allowing Cairns to

Plead Guilty to Third Degree Murder when There Was No Factual

Basis for that Charge.

Second, and similarly, Cairns argues that his trial attorneys were ineffective because they

allowed him to plead guilty to third degree murder when there was no factual basis for that

charge. (Doc. No. 1 at 10–11; Doc. No. 15 at 23–32.) Judge Lloret recommends dismissal of

this claim as well, finding that it is procedurally defaulted because although Cairns raised the

issue in his initial PCRA proceeding, the Pennsylvania Superior Court refused to consider it on

appeal because his appellate attorney failed to discuss the pertinent legal theory. (See Doc. No.

28 at 15 (explaining that the Superior Court found Cairns’s claim waived because it was

presented purely as a claim for lack of factual basis, and he did not apply the applicable

Strickland/Pierce framework).) Although the Pennsylvania Superior Court did not expressly

find that Cairns waived this argument, the Court agrees with Judge Lloret that the appellate court

refused to consider it because Cairns failed to discuss the relevant legal standard, which under

Pennsylvania law, results in waiver of the claim. See Pa. R. App. P. 2119(a) (“The argument

shall be divided into as many parts as there are questions to be argued; and shall have at the head

of each part—in distinctive type or in type distinctively displayed—the particular point treated

therein, followed by such discussion and citation of authorities as are deemed pertinent.”); Leake

v. Dillman, 594 F. App’x 756, 759 (3d Cir. 2014) (“The requirement that Petitioner must

meaningfully develop his arguments on appeal and cite to appropriate authorities has been stated

in unmistakable terms by the Pennsylvania Supreme Court, and is embodied in the state’s rules

of appellate procedure. Moreover, the Superior Court refused to consider Petitioner’s claims on

the merits and its refusal is consistent with other decisions. We conclude that the Superior

Court’s decision was based upon an independent and adequate state law ground.” (internal

citations omitted)). Because Pennsylvania’s waiver doctrine represents an independent and

adequate state law ground for rejecting Cairns’s claim for ineffective assistance of trial counsel,

Cairns’s claim is procedurally defaulted.

Cairns does not contest the procedural default, and instead, argues that the default is

excused under Martinez. But Martinez does not provide an excuse for PCRA counsel’s failure to

properly raise a claim on appeal. See Martinez, 566 U.S. 1 at 16 (“The holding in this case does

not concern attorney errors in other kinds of proceedings, including appeals from initial-review

collateral proceedings . . . .”); Branthafer v. Glunt, Civil Action No. 3:14–CV–00294, 2014 WL

10417817, at *5 (M.D. Pa. Dec. 23, 2014) (“[T]he Martinez rule does not apply to allegedly

deficient performance by counsel during appellate PCRA proceedings before the Superior Court

of Pennsylvania.”). Because Cairns’s claim is procedurally defaulted, it may not be considered

by this Court.

In the alternative, the Court agrees with Judge Lloret that Cairns’s claim lacks merit and

could be denied under § 2254(b)(2). As explained above, before the Superior Court, Cairns

failed to discuss the effectiveness of trial counsel under the proper legal theory, and instead, he

“baldly assert[ed] that the factual basis for the plea [of third degree murder] failed to establish

malice and causation.” Cairns PCRA Appeal, 2019 WL 1224696, at *4. The Superior Court

rejected this separate claim and concluded that “the Commonwealth properly established a

factual basis for third degree murder,” including malice and causation, because Cairns

“consciously disregarded an unjustified and extremely high risk that his actions in shooting

nineteen times might cause serious bodily injury.” Id. In his objections to Judge Lloret’s R&R,

Cairns once again argues that “there simply is no ‘extremely high risk’ that Mr. Cairns could

have hit someone with his random shooting . . . .” (Doc. No. 34 at 19; see also id. at 16 (“As an

initial statement of fact, Mr. Cairns began shooting his gun before the police arrived, evincing

that he had no malice or object that he was shooting at. Therefore, he could not have been

lawfully guilty of a crime that required malice.”).)

But, as Judge Lloret explained, this Court is bound by the state court’s determination on a

matter of state law. See Estelle v. McGuire, 502 U.S. 62 (1991) (“[W]e reemphasize that it is not

the province of a federal habeas court to reexamine state-court determinations on state-law

questions.”). Bound by the Superior Court’s conclusion that “the trial court correctly decided”

that there was a “factual basis for third degree murder,” Cairns cannot show that his trial

attorneys were ineffective for failing to object to the guilty plea or the trial court’s recitation of

the murder charge during the plea colloquy. See Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir.

2004) (“On state collateral review, the Pennsylvania Superior Court held that the [jury]

instructions were correct as a matter of state law. . . . Federal courts reviewing habeas claims

cannot reexamine state court determinations on state law questions. . . . Bound by the state

court’s determination that the instruction at issue comported with state law, it is evident that [the

petitioner] cannot satisfy the first component of a viable ineffective assistance of trial counsel

claim—that counsel’s performance was deficient.” (quotation marks omitted)).

Habeas relief is denied on this ground as well.

c. Ground 3: Trial Attorneys Were Ineffective when They Gave

Inaccurate Advice and “Coerc[ed] Mr. Cairns to Plead Guilty.”

Third, Cairns argues that his trial attorneys were ineffective because they failed to

accurately advise him of the charges against him and the potential outcomes at trial, choosing

instead to “coerce” Cairns into pleading guilty. (Doc. No. 1 at 12–13.) Judge Lloret

recommends dismissal of this claim on the grounds that it is unexhausted, defaulted, and

meritless. (Doc. No. 28 at 18.) Specifically, Judge Lloret finds: (1)“Cairns never alleged before

the state courts that he was potentially coerced into pleading guilty, and it is too late to present

this claim to the state courts” now; and (2) “the claim is wholly undermined by the record

created by the PCRA court.” (Id.) Cairns objects to both conclusions, arguing that he raised this

issue during the PCRA proceedings and disputing the facts on which Judge Lloret relies. (Doc.

No. 34 at 20–28.)

We agree with Judge Lloret that Cairns has not exhausted his state remedies with respect

to this claim because it was not fairly presented to the state courts. Although Cairns’s PCRA

counsel claimed that his trial attorneys were ineffective in inducing Cairns to plead guilty, that

claim was limited to the third degree murder charge and rested on the factual predicates that trial

counsel: (1) failed to understand the state law elements of third degree murder, (2) allowed him

to plead guilty despite his being on medication, (3) failed to review all necessary discovery with

him, and (4) failed to obtain Dr. Kapelsohn’s conclusions on proper police procedures.

See Cairns Initial PCRA, 2018 WL 10484002, at *5–6; Cairns PCRA Appeal, 2019 WL

1224696, at *2. Here, Cairns is asserting a wholly different factual predicate: that trial counsel

“conspired [with the prosecution] to deceive [him] to plead guilty by playing a word semantics

game” and deliberately misinformed him of the state law elements of the charges in question so

as to coerce the guilty plea. This is a fundamentally different claim than the ineffectiveness

claims that Cairns raised on PCRA review. As such, this claim was not fairly presented at the

state level, and Judge Lloret correctly found it to be unexhausted and defaulted. See Nara v.

Frank, 488 F.3d 187, 197–98 (3d Cir. 2007) (“A claim is exhausted if it was ‘fairly presented’ to

the state courts. A petitioner has fairly presented his claim if he presented the same factual and

legal basis for the claim to the state court . . . .” (internal citations omitted)).

We also agree with Judge Lloret’s second finding that Cairns has failed to excuse this

default under Martinez because he has failed to show that this claim has some merit. Cairns’s

bald assertions that trial counsel were ineffective because they coerced his plea are wholly

unsupported by the factual record. As Judge Lloret noted, and as we have previously discussed,

“[plea] counsel went to great lengths to prepare Mr. Cairns for both his trial and his plea hearing.

And . . . [plea counsel’s] testimony, which the [initial PCRA c]ourt found credible, indicates that

Mr. Cairns chose to enter a guilty plea, without any coercion or suggestion by counsel, and

during a trial preparation meeting where counsel reviewed the evidence once again with him to

boot.” (Doc. No. 28 at 18–19.) Cairns may dispute the facts at this stage,10 but he confirmed

them to be true and correct at the time of his plea colloquy. See Plea Tr. at 20:8–11, 21:4–16. In

short, there is no basis for finding trial counsel coerced Cairns into pleading guilty or provided

deficient representation before and during the plea hearing. Because Cairns’s underlying

Strickland claim lacks even some merit, his default is not excused under Martinez. Habeas relief

is denied on this ground.

d. Ground 4: Trial Attorneys Were Ineffective when They Failed to

Properly Identify a Brady Violation.

Fourth, Cairns argues that his trial attorneys were ineffective because they failed to

recognize that the Commonwealth committed Brady violations during trial preparation. (Doc.

No. 1 at 13–14.) Judge Lloret recommends denying this claim as unexhausted, procedurally

defaulted, and meritless. (Doc. No. 28 at 19.) Judge Lloret finds that although Cairns raised

numerous arguments about discovery during the PCRA proceedings, he never framed the error as

a Brady violation. Because it was not fairly presented to the state courts, the claim is

unexhausted and procedurally defaulted. (Id.) Judge Lloret also finds denial is warranted

because there is no basis in the record for finding that the Commonwealth failed to turn over

exculpatory material as required by Brady v. Maryland. (Id. at 21 & n.13.) Cairns objects to

Judge Lloret’s recommendation, arguing that any default is excused under Martinez because

PCRA counsel “didn’t know the difference between the Brady requirements and a proper motion

10 Cairns objects to Judge Lloret’s reliance on Attorney Lacson’s testimony at the PCRA hearing:

“Quite frankly, attorney Lacson’s PCRA testimony is not ‘reliable’ as asserted by [Judge] Lloret, but

rather, self serving to protect his ineptitude and knowing unlawful inducement of Mr. Cairns to plead

guilty to crimes for which he was not guilty of committing.” (Doc. No. 34 at 24–25.) But Judge Finley,

who oversaw the PCRA hearing, found Attorney Lacson’s testimony credible and Cairns’s contrary

testimony incredible. This Court is bound by those credibility findings. See Marshall v. Longberger, 459

U.S. 422, 434 (1983) (explaining that habeas courts have “no license to redetermine credibility of

witnesses whose demeanor has been observed by the state trial court, but not by them”).

for discovery in the state system.” (Doc. No. 34 at 31.)

This claim was not fairly presented at the state level, and thus is unexhausted and

procedurally defaulted. In addition, the Court agrees with Judge Lloret that Cairns has failed to

show the default is excused because there is no merit to Cairns’s underlying ineffective

assistance of trial counsel claim.

Under Brady v. Maryland, “the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87

(1963). A Brady violation occurs if: “(1) the evidence at issue is favorable to the accused,

because [it is] either exculpatory or impeaching; (2) the prosecution withheld it; and (3) the

defendant was prejudiced because the evidence was ‘material.’” Breakiron, 642 F.3d at 133

(citing, inter alia, Strickler, 527 U.S. at 281–82). Brady does not require that the prosecution

“deliver [its] entire file to defense counsel.” United States v. Agurs, 427 U.S. 97, 111 (1976).

The prosecution has satisfied Brady when it has disclosed “any information actually known to

[its office] and all information in the possession of [its] office, the police, and others acting on

behalf of [its office].” Bridges v. Sec’y of Pa. Dep’t of Corr., 706 F. App’x. 75, 82 (3d Cir.

2017) (quoting Wilson v. Beard, 589 F.3d 651, 659 (3d Cir. 2009) (internal quotation marks

omitted).

Cairns has not pointed to any material evidence that was suppressed by the

Commonwealth. As Judge Lloret notes:

Mr. Cairns essentially argues that, had he seen the ballistics report

commissioned by his trial counsel, the autopsy report of the victim,

hundreds of forensic photos, and 911 call transcripts, he would not

have pled guilty. Doc. No. 15, at 97; Doc. No. 27, at 2. I find that

Mr. Cairns makes no viable argument that he suffered a Brady

violation prior to pleading guilty. Mr. Cairns requested this material

in his PCRA discovery motion, see Mar. 20, 2016 Req. for Disc. at

2, and then testified during a hearing on this motion that the

Commonwealth indeed turned over this material to his counsel, but

that his original trial counsel seemed unable to locate the material in

preparation for the [PCRA] discovery hearing, see N.T. 6/23/16

34:2–8. Based on this statement alone, I find that the

Commonwealth satisfied its discovery obligations under Brady.

(Doc. No. 28 at 20–21.) The Court agrees. Cairns has made no credible showing that the

prosecution withheld any evidence, let alone favorable evidence that could reasonably be taken

to have exculpated him of the charges in question. Because there was no basis for asserting a

Brady claim, trial counsel did not act deficiently or prejudice Cairns when they failed to do so.

Habeas relief is denied on this ground.

e. Ground 5: Trial Attorneys Were Ineffective when They Failed to

Address Cairns’s Cognitive Functioning during the Guilty Plea

Colloquy and Failed to Recognize that He Was Highly Medicated.

Fifth, Cairns argues that his trial attorneys were ineffective because they failed to

recognize that during the guilty plea hearing, Cairns was highly inebriated from the medications

he was taking for his mental illness. (Doc. No. 1 at 16.) Judge Lloret recommends dismissal of

this claim as procedurally defaulted on the grounds that it was not properly raised on PCRA

appeal—the Pennsylvania Superior Court found it had been abandoned. (Doc. No. 28 at 22 &

n.17.) He also finds that Cairns failed to show cause for that default, noting that the Martinez

exception applies only to ineffective assistance of initial review PCRA counsel. (Id.) In the

alternative, Judge Lloret finds the claim to be meritless, noting that although Cairns testified to

the issue at the PCRA hearing, the state court found him to be “an overall incredible witness.”

(Doc. No. 28 at 22.) Cairns acknowledges that on habeas review a federal court cannot

redetermine credibility, but nevertheless argues that Judge Lloret was wrong to apply that

premise to the facts of this particular claim. (Doc. No. 34 at 40.)

As Judge Lloret finds, Cairns failed to raise this claim before the Pennsylvania Superior

Court, so it is unexhausted and procedurally defaulted. And as we stated above, Cairns cannot

qualify for the Martinez exception because that applies only to ineffective assistance of initial

review PCRA counsel, not the assistance of appellate counsel. See Martinez, 566 U.S. 1 at 16.

Accordingly, this claim is non-cognizable.

In the alternative, the Court agrees with Judge Lloret that Cairns’s claim is meritless

because Cairns has failed to show that his trial attorneys acted deficiently. Cairns asserts that his

trial counsel knew that he “was on powerful psychotropic medications” and still “made no

attempts to ensure [that he] was able to understand the guilty plea proceedings.” (Doc. No. 34 at

38.) He further alleges that trial counsel “advised [him] not to mention any mental illness as the

judge might not accept the guilty plea.” (Id.) But these allegations are overwhelmingly refuted

by the factual record and unsupported by any credible testimony. During his plea colloquy,

Cairns stated that he was on medication for his mental illness. Plea Tr. at 5:7–22, 6:11–16,

46:13–14. Judge Finley then asked Cairns questions about the medication, and Cairns repeatedly

affirmed that he had no difficulty understanding the proceedings. Id. at 5:7–22, 6:11–16. After

considering this testimony, Judge Finley found Cairns to have entered his plea knowingly,

voluntarily, and intelligently with a full and complete understanding of the consequences of

doing so. Id. at 47:16–48:2. In addition, although Cairns testified at the PCRA hearing that the

medication had impaired his understanding, the court found his testimony incredible and

contradicted by the record established at the plea hearing. Cairns Initial PCRA, 2018 WL

10484002, at *5. Judge Lloret correctly deferred to the PCRA Court’s credibility

determinations. See Marshall, 459 U.S. at 434. When the trial court’s findings are properly

considered, there is no basis for finding that trial counsel were deficient for allowing Cairns to

plead guilty while taking his mental health medications.

Habeas relief is denied on this ground.

B. Cairns’s Request for an Evidentiary Hearing

In his Amended Petition for habeas relief, Cairns includes a conclusory request for “an

evidentiary hearing to more fully develope [sic] the facts and evidences of his defense.” (Doc.

No. 15 at 98.) Judge Lloret recommends denying this request because Cairns has not met “the

high bar required to obtain an evidentiary hearing in a section 2254 proceeding.” (Doc. No. 28 at

24.)

“[A] district court is permitted to hold an evidentiary on a claim asserted in a § 2254

petition so long as such a hearing is not barred by 28 U.S.C. § 2254(e)(2).” Palmer v. Hendricks,

592 F.3d 386, 392 (3d Cir. 2010). The first issue for the Court to consider is whether the

petitioner developed the factual basis for a claim in the state court proceedings. Under

§ 2254(e)(2), when a habeas petitioner “has failed to develop the factual basis of a claim in State

court proceedings,” the federal habeas court is prohibited from holding an evidentiary hearing

unless the petitioner shows that (1) “the claim relies on . . . a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable;” or (2) “the claim relies on . . . a factual predicate that could not have been

previously discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A). In

addition, the petitioner must show that “the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for the constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying offense.” Id. § 2254(e)(2)(B).

If the Court finds that the petitioner did not fail, of his own accord, to develop the factual basis

for a claim, then the Court, in its discretion, may grant the request for a hearing after making

“two related considerations”: (1) “whether the petition presents a prima facie showing which, if

proven, would enable the petitioner to prevail on the merits of the asserted claim,” and

(2) whether the “record refutes the applicant’s factual allegations or otherwise precludes habeas

relief.” Palmer, 592 F.3d at 393 (quotation marks omitted).

Here, Cairns’s Amended Petition includes a conclusory request for an evidentiary hearing

and provides no discussion as to why that hearing is necessary. Despite this failure, Judge Lloret

considered the appropriateness of an evidentiary hearing as to each of Cairns’s claims and found

it unwarranted because:

[Cairns] failed to develop several of his claims in state court. For

those claims which he developed in state court, the record refutes

his accusations. There is no prima facie merit to any of Mr. Cairns’s

claims on habeas review, and it is highly unlikely that an evidentiary

hearing would add any support to these claims. This is particularly

so in light of the testimony provided during the PCRA Court’s

evidentiary hearing, which my review indicates was properly

conducted and is deserving of deference on habeas review.

(Doc. No. 28 at 25.) Cairns objects to this conclusion, claiming that he is entitled to an

evidentiary hearing because “[i]f all of the facts were to come to light Mr. Cairns would not have

been found guilty of the underlying crimes by any fact finder.” (Doc. No. 34 at 33.)

Specifically, Cairns believes the hearing would show that one of the bullets found in the ground

near the police officers is not “actually a bullet” and that Officer Harold used an inappropriate

amount of force when he fired the shot that ultimately killed Zienkwicz because Cairns was

firing at random, not toward the police. (Id.)

Cairns did not raise this argument before Judge Lloret, so it is not properly before the

Court now. See Coker v. DelBaso, No. 2:18-CV-3385, 2020 WL 1816084, at *11 (E.D. Pa. Apr.

10, 2020) (“The allegations put forward in Coker’s objections to the R&R as to claim six were

never raised in his habeas petition. . . . Additionally, they do not even attempt to address what is

legally incorrect with Judge Hey’s findings as to this claim. Coker’s attempt to raise entirely

new arguments and his failure to squarely respond to the R&R are each independent bases for

plain error review of the R&R.”); see also Kightlinger v. Pennsylvania, No. CIV.A. 11-936, 2013

WL 4504382, at *2 (W.D. Pa. Aug. 22, 2013) (“Issues raised for the first time in objections to

the magistrate judge's recommendation are deemed waived. . . . Indeed, for the district judge to

review new evidence or arguments raised in objections would reduce the magistrate’s work to

something akin to a meaningless dress rehearsal.” (cleaned up)).

Moreover, the Court finds no error in Judge Lloret’s conclusions and agrees that Cairns

has failed to show any justification for holding an evidentiary hearing. As discussed above, the

evidence found credible by Judge Finley shows that Cairns volunteered to plead guilty before Dr.

Kapelsohn completed his report. Regardless of what that report would have ultimately

concluded, the Court cannot find that trial counsel rendered ineffective assistance when they told

Dr. Kapelsohn to stop working on it, given Cairns’s statement that he wished to pursue a plea

instead of going to trial. Because the credible record evidence precludes habeas relief as to this

claim, the Court will not hold an evidentiary hearing. See Schriro v. Landrigan, 550 U.S 465,

474 (2007) (“It follows that if the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary hearing.”);

Campbell v. Vaughn, 209 F.3d 280, 290 (3d Cir. 2000) (“At all events, we hold that the PCRA

court made a sufficient determination of the factual issue on which Campbell’s habeas appeal

turns. AEDPA dictates that we must presumptively defer to this determination absent clear

evidence to the contrary. As Campbell has introduced no such clear evidence, we further hold

that ordering a new evidentiary hearing in this situation would be inappropriate.” (internal

citations omitted)).

Cairns’s request for an evidentiary hearing is denied.

C. Alleged Bias of Judge Lloret

In addition to his specific objections to Judge Lloret’s findings, Cairns also argues that

“he has been denied a f[a]ir/unbiased habeas review due to [Judge] Lloret’s objectively biased

position favoring the state.” (Doc. No. 34 at 34.) Cairns argues that Judge Lloret is biased

against him because Judge Lloret:

• Refers to the events on February 17, 2013 as a “shootout,” but it was not (id. (“If

there was a shootout Mr. Cairns would have rapid fired using multiple weapons.”));

• Ignores “the laws regarding procedural default, the cause and prejudice standards and

the exception announced in Martinez” (id.);

• Says claims I and II are state law claims, but in reality they are ineffectiveness of “all

counsel’s [sic]” and thus, raise Sixth Amendment claims (id. at 34–35);

• Acts as a “co-advocate for the state” when he finds that the Superior Court refused to

consider Ground 2 on the basis of waiver (id. at 35);

• “[P]ervert[s] the factual record and lie[s]” when he finds that the materials requested

in Cairns’s PCRA discovery motion were previously turned over by the State (id. at

35–36);

• Concludes that “Cairns ‘actually saw’ the evidences [sic] he has been requesting” (id.

at 36); and

• “[C]onverts Mr. Cairns’ Rule 7 motion into a Rule 6 motion and then den[ies] it” (id.

at 37).11

These arguments merely reiterate Cairns’s objections to Judge Lloret’s substantive rulings in the

R&R. That is not a valid basis for finding a federal judge biased, such that his should be recused

from a case. See Liteky v. United States, 510 U.S. 540, 554–55 (1994) (“[J]udicial rulings alone

almost never constitute a valid basis for a bias or partiality motion.”). And for the reasons

11 Cairns refers to the Federal Rules Governing Section 2254 Cases. Rule 7 governs requests to

expand the record, stating that “if the [habeas] petition is not dismissed, the judge may direct the parties to

expand the record by submitting additional materials relating the petition.” R. Governing § 2254 Cases

7(a). Rule 6 governs discovery and states that a “judge may, for good cause, authorize a party to conduct

discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery.” R.

Governing § 2254 Cases 6(a). Cairns argued that Judge Lloret should have “order[ed] the state courts to

provide the necessary documents” under Rule 7 and not expected Cairns to “submit [those] documents to

the federal court” to expand the record under Rule 6. (Doc. No. 34 at 37.) It is immaterial here which

Rule Cairns proceeded under because Judge Lloret found Cairns was not entitled to seek new evidence or

have an evidentiary hearing.

discussed throughout this Memorandum, the Court finds no error in Judge Lloret’s findings and

conclusions. Accordingly, Cairns’s objection on the ground of improper bias is also rejected.

IV. CONCLUSION

For the reasons discussed above, Cairns’s objections to Judge Lloret’s R&R are

overruled, and the R&R is adopted in its entirety. Cairns’s Amended Petition is denied.

An appropriate order follows.