WILLIAMS v. HARRY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

KEITH WILLIAMS :

Petitioner, :

:

v. : Civil No. 5:22-cv-01024-JMG

:

MICHAEL GOURLEY, et al., :

Respondents. :

__________________________________________

MEMORANDUM OPINION

GALLAGHER, J. August 29, 2023

I. OVERVIEW

Petitioner Keith Williams (“Petitioner”) filed the instant pro se petition seeking a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction in the

Philadelphia County Court of Common Pleas for aggravated assault and possession of a firearm

though prohibited on two grounds: That he was sentenced for the wrong offense; and that his direct

appeal counsel was ineffective for failing to challenge the discretionary aspects of his sentence.

Magistrate Judge Lynne A. Sitarski issued a Report and Recommendation (“R&R”)

recommending that the habeas corpus claims be denied and dismissed. Petitioner has filed

objections to the R&R. For the reasons set forth below, the R&R is adopted, and the objections are

overruled. Petitioner’s habeas petition is denied.

II. BACKGROUND

Petitioner, Keith Williams, proceeding pro se, filed the instant Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2254 on January 16, 2022 (“Petition”). [ECF No. 1]. This case was

referred to United States Magistrate Judge Lynne A. Sitarski on April 4, 2022 for a report and

recommendation. [ECF No. 4]. Respondents, Michael Gourley1, The District Attorney of the

County of Philadelphia, and the Attorney General of the State of Pennsylvania, filed a Response

in Opposition to Petitioner’s Writ of Habeas Corpus on December 14, 2022. [ECF No. 19].

Petitioner filed a Rebuttal-Reply to the Response to the Petition on January 24, 2023. [ECF No.

20]. On April 12, 2023, Judge Sitarski issued a Report and Recommendation (“R&R”)

recommending the Petition be denied without the issuance of a certificate of appealability. [ECF

No. 25]. Thereafter, Petitioner filed Objections to the Report and Recommendation on May 1,

2023 (“Objections”). [ECF No. 26].

The R&R summarizes the background of this case. See R&R at pgs. 1-6 of 19, [ECF No.

25]. Petitioner does not object to this summary, and, after review, it is adopted and incorporated

herein.

In brief, on June 23, 2014, Dwayne Pierce was shot in the left knee and right leg in

Philadelphia. Id. at pg. 2 of 19. Pierce was taken to a hospital, where he was interviewed by police.

Id. at pg. 3 of 19. Pierce identified Petitioner as the man who shot him from a photo array. Id. After

a search by the U.S. Marshall’s Fugitive Task Force, Petitioner was apprehended on July 14, 2014,

in Glassboro, New Jersey. Id.

Petitioner waived his right to jury trial. Id. at pg. 4 of 19. At his non-jury trial, Pierce,

witnesses and several police officers offered testimony. Id. As the R&R notes, Petitioner stipulated

that he was prohibited from possessing a firearm and presented no testimony in his defense. Id.

The trial court acquitted Petitioner of attempted murder and convicted him of aggravated assault,

possessing a firearm though prohibited, and other offenses. Id. The trial court calculated a

1 Michael Gourley, the Superintendent of SCI Camp Hill, is substituted as the respondent

in this case. See Rules Governing Section 2254 Cases, Rule 2 (requiring the current custodian to

be named as respondent). See R&R at pg. 1 of 19 [ECF No. 25].

sentencing guideline range of 90-108 months. Id. While the trial court found several mitigating

factors were present, such as the Petitioner’s age, a learning disability, and Petitioner’s Post-

Traumatic Stress Disorder (“PTSD”), the trial court ultimately found that these were outweighed

by aggravating factors, “particularly the fact that [Petitioner] fired his gun while children were in

harm’s way.” Id.

Consequently, the trial court sentenced Petitioner to consecutive terms of 10–20 years’

imprisonment for aggravated assault and 5–10 years’ imprisonment for persons not to possess

firearms, as well as five years’ consecutive probation, with conditions, for possessing an

instrument of crime. Id. The trial court also ordered Petitioner to serve his aggregate sentence

concurrently with a term of 6–23 months’ imprisonment for a separate offense of forgery. Id.

Petitioner filed a post-sentence motion for reconsideration of sentence, which the trial court

denied. Id. at 4-5. On direct appeal, appellate counsel raised objections to police officers’ testimony

during trial but did not challenge the discretionary aspects of Petitioner’s sentence. Id. at 5. The

Pennsylvania Superior Court denied Petitioner’s appeal on February 27, 2018. Id. The

Pennsylvania Supreme Court declined Petitioner’s petition for allowance of appeal on September

4, 2018. Id. Petitioner then timely filed a petition under the Pennsylvania Post Conviction Relief

Act (“PCRA”), arguing his appellate counsel was ineffective in failing to challenge the

discretionary aspects of the judge’s sentence. Id.

On August 30, 2019, the PCRA Court issued an order denying relief. Id. Petitioner filed a

notice of appeal, and on February 8, 2021, the Pennsylvania Supreme Court denied Petitioner’s

petition for allowance of appeal. Commonwealth v. Williams, 240 A.3d 147 (Pa. 2021) (table

opinion). On January 16, 2022, Petitioner filed this Petition asserting two grounds for relief.2

2 As the R&R notes, “Pennsylvania and federal courts employ the prisoner mailbox rule,

pursuant to which the pro se petition is deemed filed when it is given to prison officials for mailing.

The R&R outlined Petitioner’s grounds for relief as follows:

1. Petitioner was sentenced for aggravated assault with attempt to cause serious bodily

injury whereas he was charged only with aggravated assault. See R&R at pg. 6 of 19

[ECF No. 25].

2. Petitioner’s counsel on direct appeal was ineffective for not challenging the

discretionary aspects of his sentence. Id.

In the R&R, the Magistrate Judge determined the first claim was procedurally defaulted.

Upon review, the Magistrate Judge found the second claim did not warrant relief and

recommended the claim be dismissed. Id. at pg. 18 of 19. Petitioner filed Objections to the R&R’s

determinations as to both claims, and argues that any default should be excused based on the

ineffectiveness of counsel. See generally Objections [ECF. No. 26].

III. LEGAL STANDARD

a. Review of Report and Recommendation

When objections to a Report and Recommendation are filed under 28 U.S.C. §

636(b)(1)(C), the district court must conduct a de novo review of the portions of the report and

recommendation to which the petitioner objects. 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885

F.2d 1099, 1106 n.3 (3d Cir. 1989). “District Courts, however, are not required to make any

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

under 28 U.S.C. § 636(b).” Hill v. Barnacle, 655 F. App’x 142, 147 (3d Cir. 2016). In the absence

See Perry v. Diguglielmo, 169 F. App’x 134, 136 n.3 (3d Cir. 2006) (citing Commonwealth v.

Little, 716 A.2d 1287 (Pa. Super. Ct. 1998)); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998);

Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa. Super. Ct. 2001). In this case, Petitioner

certified that he gave his habeas petition to prison officials on January 16, 2022, and it will be

deemed filed on that date. (Hab. Pet., ECF No. 1, at 19).” See R&R at pg. 6 of 19 [ECF No. 25].

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

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

However, as a matter of preferred practice, district courts should “afford some level of

review to dispositive legal issues raised by the report” even if they are not objected to. Henderson

v. Carlson, 812 F.2d 874, 878 (3d Cir.1987), writ denied 484 U.S. 837 (1987). Accordingly, this

Court reviews Judge Sitarski’s R&R in its entirety for plain error or manifest injustice. Harper v.

Sullivan, No. 89-4272, 1991 U.S. Dist. LEXIS 2168, at *2 n.3 (E.D. Pa. Feb. 22, 1991); see also

Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). A district court “may accept, reject, or

modify, in whole or in part, the findings and recommendations” contained in the report and

recommendation. 28 U.S.C. § 636(b)(1)(C). The recommendation from the magistrate judge does

not carry presumptive weight, and the authority to make a final determination remains with the

district court. Mathews v. Weber, 423 U.S. 261, 271 96 S. Ct. 549 (1976).

A district court need not consider, however, “issues raised for the first time in objections

to a magistrate judge’s report and recommendation,” as parties are not permitted “to raise

arguments or issues that were not presented to the magistrate.” Townsend v. Gilmore, No. 15-

1475, 2017 U.S. Dist. LEXIS 37685 at *4 (E.D. Pa. Mar. 15, 2017) (quoting United States v.

Waters, 158 F.3d 933, 936 (6th Cir. 1998)). Accordingly, “[i]ssues raised for the first time in

objections to the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75

F.3d 1421, 1426 (10th Cir. 1996). An issue/objection is deemed waived if the petitioner failed to

raise it before the magistrate judge, or makes merely “a passing reference” to the issue. Simmons

v. Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991). See also See Laborers' Int'l Union of N.A. v.

Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994); In re Nat'l Collegiate Student Loan

Trs. 2003-1, 2004-1, 2004-2, 2005-1, 2005-2, 2005-3, 971 F.3d 433 (3d Cir. 2020) (“Arguments

not presented to a magistrate judge and raised for the first time in objections to the magistrate’s

recommendations are deemed waived…A passing reference to an issue does not suffice to preserve

it.”).

b. Review of a Petition for Habeas Corpus Under 28 U.S.C. § 2254

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

prisoners must give the state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the [s]tate’s established appellate review process” before seeking

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

failed to properly present their claims in the state court and no longer has an available state remedy,

they have procedurally defaulted those claims. See id. at 847-48. An unexhausted or procedurally

defaulted claim cannot provide the basis for federal habeas relief unless the petitioner can

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

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

justice. See Coleman v. Thompson, 501 U.S. 722, 732-33, 750 (1991) (explaining that a “habeas

petitioner who has defaulted his federal claims in state court meets the technical requirements for

exhaustion [because] there are no state remedies any longer available to him”). The fundamental

miscarriage of justice exception “applies to a severely confined category: cases in which new

evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the

petitioner].’” McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (quoting Schlup v. Delo, 513 U.S.

298, 329 (1995)). “Put differently, the exception is only available when a petition presents

‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial

unless the court is also satisfied that the trial was free of nonharmless constitutional error.’”

Coleman v. Greene, 845 F.3d 73, 76 (3d Cir. 2017) (quoting McQuiggin, 569 U.S. at 401; Schlup,

513 U.S. at 316).

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

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

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

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

applies to an ineffective assistance of counsel evaluated under the § 2254(d)(1) standard” because

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

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

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

as its determination of the facts would not be unreasonable.”). Moreover, “a federal habeas court

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

applies to the factual determinations of state trial and appellate courts.” Fahy v. Horn, 516 F.3d

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

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

IV. ANALYSIS

Following a de novo review of Petitioner’s claims, the Court adopts the R&R in its entirety.

Petitioner objects to the R&R’s rejection of his two claims: that he was illegally sentenced for

aggravated assault with attempt to cause seriously bodily injury despite only being charged with

aggravated assault; and that Petitioner’s direct appeal counsel was ineffective for failing to

challenge the discretionary aspects of his sentence. See Objections at pgs. 1-2 [ECF No. 26].

Petitioner’s Objections also raises several issues for the first time, namely that Petitioner’s waiver

of his right to a jury trial was not knowing, intelligent, and voluntary, and that his sentences should

have merged under the merger doctrine. Id. at pgs. 3-4. The Court addresses Petitioner’s objections

below.

In his Objections to the R&R, Petitioner does not dispute that his claims are procedurally

defaulted; rather, he argues that any defaults should be excused based on the ineffectiveness of

trial and direct-appeal counsel and the prejudice he suffered as a result. Id. at pgs. 3-4. For the

reasons discussed below, Petitioner cannot establish that he was prejudiced by trial counsel’s

failure to allege he was sentenced for a different offense or direct appeal counsel’s failure to

challenge the discretionary aspects of his sentence.

a. Claim I: Sentenced for Different Offense

Petitioner claims in his objections that that he was sentenced for aggravated assault with

attempt to cause serious bodily injury whereas he was charged only with aggravated assault. Id. at

pg. 1. As the R&R explains, this claim is procedurally defaulted because Petitioner did not raise it

on direct appeal or PCRA review. R&R at pg. 10 of 19 [ECF No. 25]. Because the claim is

procedurally defaulted, it is unreviewable, and the R&R recommends the claim be dismissed. Id.

According to the R&R, Petitioner made no argument that this procedural default should be

excused, and Petitioner failed to demonstrate cause for this default or prejudice sustained, or

making a showing that a fundamental miscarriage of justice would ensue. Id. at pg. 10 of 19. In

his Objections, Petitioner argues this procedural default should be excused as per the Supreme

Court’s decision in Martinez v. Ryan because his failure to raise the issue can be attributed to his

ineffective trial and direct appeal counsel, and briefly mentions that PCRA counsel failed to

preserve his claims. See Petitioner’s Objections at pg. 4 [ECF No. 26]. His objections do not

prevail.

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

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

defense. See Strickland v. Washington, 466 U.S. 668, 688 (1984). Incorporating Strickland,

Pennsylvania’s three-prong ineffectiveness test requires the Petitioner to establish that (1) the

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for his or her conduct;

and (3) petitioner suffered prejudice as a result of counsel’s deficient performance. Commonwealth

v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

There is a strong presumption that counsel is effective and courts, guarding against the

temptation to engage in hindsight, should be “highly deferential” to counsel’s reasonable strategic

decisions. Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). The mere existence of

alternative, even preferable or more effective, legal strategies does not satisfy the first element of

the Strickland test. Id. at 86. To establish prejudice under the second element, a petitioner must

show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000)

(quoting Strickland, 466 U.S. at 694). “Judicial scrutiny of counsel’s performance must be highly

deferential.” Strickland, 466 U.S. at 689 (explaining that courts should not second-guess counsel’s

assistance and engage in “hindsight, to reconstruct the circumstances of counsel’s challenged

conduct”). Courts must consider the totality of the evidence and the burden is on the petitioner. Id.

at 687, 695.

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

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

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

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

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

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

Failure to raise an ineffective assistance of counsel claim in state court bars a petitioner

from raising the claim in federal court, and they are deemed to have “procedurally defaulted” the

claim. Ridgeway v. Folino, No. 12-5092, 2015 U.S. Dist. LEXIS 180458 at *45 (E.D. Pa. June 25,

2015). A narrow exception to this rule exists under the Supreme Court’s decision in Martinez v.

Ryan, 566 U.S. 1, 10 (2012). Martinez outlines two limited circumstances in which a prisoner can

establish cause for a default of an ineffective assistance of trial counsel claim:

The first is where the state courts did not appoint counsel in the initial-review

collateral proceeding for a claim of ineffective assistance at trial. The second is

where appointed counsel in the initial-review collateral proceeding, where the claim

should have been raised, was ineffective under the standards of Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome

the default, a prisoner must also demonstrate that the underlying ineffective-

assistance-of-trial-counsel claim is a substantial one, which is to say that the

prisoner must demonstrate that the claim has some merit.

Id. at 14. The Supreme Court clarified this exception in Shinn v. Ramirez, 142 S. Ct. 1718, 1728

(2022), holding that “ineffective assistance of postconviction counsel is ‘cause’ to forgive

procedural default of an ineffective-assistance of-trial-counsel claim, but only if the State required

the prisoner to raise that claim for the first time during state postconviction proceedings.” Shinn v.

Ramirez, 142 S. Ct. 1718 (2022) (emphasis added). Simply put, the narrow exceptions outlined in

Martinez apply if the state’s judicial system forecloses direct review of trial counsel ineffective

assistance claims. Trevino v. Thaler, 569 U.S. 413. 133 S. Ct.1911, 185 L. Ed. 2d 1044 (2013).

The Supreme Court has declined to expand Martinez. In Davila v. Davis, 582 U.S. 521,

137 S. Ct. 2058 (2017), the Supreme Court declined to extend Martinez to allow a federal court to

hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel

when a prisoner’s state postconviction counsel allegedly provided ineffective assistance by failing

to raise that claim. Id. at 529. The Supreme Court reasoned:

On its face, Martinez provides no support for extending its narrow exception to new

categories of procedurally defaulted claims. Martinez did not purport to displace

Coleman as the general rule governing procedural default. Rather, it “qualifie[d]

Coleman by recognizing a narrow exception” that applies only to claims of

“ineffective assistance of counsel at trial” and only when, “under state law,” those

claims “must be raised in an initial-review collateral proceeding.” Martinez, supra,

at 9, 17, 132 S. Ct. 1309, 182 L. Ed. 2d 272. And Trevino merely clarified that the

exception applies whether state law explicitly or effectively forecloses review of

the claim on direct appeal. 569 U.S., at 417, 429, 133 S. Ct. 1911, 185 L. Ed. 2d

1044, 1058. In all but those “limited circumstances,” Martinez made clear that

“[t]he rule of Coleman governs.” 566 U.S., at 16, 132 S. Ct. 1309, 182 L. Ed. 2d

272.”

Id. at 529-530. Thus, Martinez does not provide grounds to forgive a procedural default of an

ineffective assistance of direct appeal counsel claim.

Martinez is a narrow exception to the procedural default rule, reserved for instances when

state law precludes a petitioner from asserting an ineffective assistance of trial counsel claim until

state postconviction proceedings, and the counsel in the postconviction proceedings was

themselves ineffective for failing to raise a claim that trial counsel was ineffective. Gelsinger v.

Superintendent Fayette SCI, No. 21-2844, 2022 U.S. App. LEXIS 23830 at *3 (3d Cir. July 8,

2022). The situation in Martinez arose due to an Arizona state law that prohibited a defendant from

bringing an ineffective assistance of trial counsel claim on direct appeal. See Martinez v. Ryan,

566 U.S. at 9.

Here, by contrast, pursuant to applicable Pennsylvania law at the time of Petitioner’s PCRA

proceedings and appeals, after Petitioner filed his pro se PCRA petition, the PCRA court issued a

notice of intent to dismiss the petition without a hearing pursuant to 234 Pa. Code § 907 on January

22, 2019. See R&R at pg. 5 of 19 [ECF No. 25]. In response to this notice, Petitioner was required

to raise his ineffective assistance of counsel claim for failure to argue that he was sentenced on the

wrong charge within twenty days. 3 Moses v. Krasner, No. 5:21-cv-5466, 2023 U.S. Dist. LEXIS

12433 at *7 (E.D. Pa. Jan. 25, 2023) (“Pennsylvania procedural rules required petitioners to raise

claims of ineffective PCRA counsel in their response to the Rule 907 notice; otherwise such claims

were deemed waived.”).

Petitioner timely responded to the notice by filing an amended PCRA petition that alleged

direct appeal counsel provided ineffective assistance by failing to challenge the discretionary

aspects of Petitioner’s sentence, but not that Petitioner was sentenced for aggravated assault with

attempt to cause serious bodily injury whereas he was charged only with aggravated assault. See

R&R at pg. 5 of 19 [ECF No. 25]. Accordingly, Petitioner waived this argument.

Even were the Court to consider Petitioner’s ineffective assistance of counsel claim on the

merits, his claim would still fail. His Objections argue that trial counsel should have raised the

issue that he was sentenced for a different offense. Petitioner alleges the trial court’s total sentence

of 15-30 years exceeded the sentencing guidelines for aggravated assault. This is a

mischaracterization of the sentence issued. Petitioner was sentenced 10-20 years for aggravated

assault, and 5-10 years for possession of a firearm though prohibited. The Pennsylvania

Sentencing Code allows courts determine whether to impose sentences consecutively or

concurrently. 42 Pa. Cons. Stat. Ann. § 9721 (a). Here, the trial court did not sentence Petitioner

to 15-30 years in prison for aggravated assault only, but rather this aggregate term reflects the

3 This requirement was subsequently changed by the Pennsylvania Supreme Court’s

decision in Commonwealth v. Bradley, 261 A. 3d 381 (Pa. 2021) in October 2021, which

abandoned the previous Rule 907 procedure, and adopted, “a modified and flexible Hubbard

approach allowing a petitioner to raise claims of ineffective PCRA counsel at the first opportunity,

even if on appeal.” Id. at 405.

Court’s decision to impose the separate sentences for aggravated assault and possession of a

firearm though prohibited concurrently.

Petitioner was not improperly sentenced on the wrong charge. Petitioner was found guilty

of violating 18 Pa.C.S. § 2702 (a)(1). This statute states, “A person is guilty of aggravated assault

if he attempts to cause serious bodily injury to another, or causes such injury intentionally,

knowingly or recklessly under circumstances manifesting extreme indifference to the value of

human life.” 18 Pa.C.S. § 2702 (a)(1). In other words, an individual may be convicted of

aggravated assault whether the defendant caused or only attempted to cause serious bodily injury.

There is no difference between aggravated assault and aggravated assault with a serious bodily

injury. In Pennsylvania, aggravated assault under subsection (a)(1) is a felony of the first degree,

and a first-degree felony carries a maximum sentence of 20 years. 18 Pa.C.S. § 2702 (b); 18 Pa.C.S.

§ 1103 (1). This does not change based on whether a serious bodily injury resulted. 204 Pa. Code

§ 303.15. The trial court determines which offense gravity score applies. Pa. Code § 303.3 (b).

The trial court in Petitioner’s case found that there was serious bodily injury to Mr. Pierce,

as evidenced by the state record. See Dec. 1, 2016 Sentencing Tr. at 13:9-15:24 [ECF No. 19-4].

This finding had no impact on the statutory maximums at play – rather, they increased the

sentencing guidelines, which are not binding and are merely advisory in nature. Commonwealth v.

Yuhasz, 592 Pa. 120, 923 A.2d 1111 (2007). Sentences that exceed sentencing guidelines but do

not exceed the statutory maximum do not violate the 6th Amendment. Id. at 1118. The sentencing

court may sentence outside the guidelines based on judicially determined facts, so long as it does

not exceed the statutory limit. Id.

As such, Petitioner’s first claim fails both procedurally and substantively. Petitioner’s

sentence was imposed within the legal parameters prescribed by the applicable statutes, and he

was sentenced for the correct offense. Petitioner’s trial counsel moved for reconsideration of the

sentence. Simply because this motion was denied by the trial court does not mean that counsel’s

performance was deficient under Strickland, nor that the standard was unreasonably applied by the

appeals court. Thus, Petitioner’s claims of ineffective assistance of trial counsel cannot be excused

for cause under Martinez, and the underlying argument does not have merit.

Petitioner’s assertion that ineffective assistance of direct appeal counsel provides cause for

the procedural default, pursuant to Martinez, does not prevail. The Supreme Court made clear in

Davila that Martinez does not provide grounds to excuse procedurally defaulted claims of direct

appeal counsel. Davila, 582 U.S. 521, 525. The Petitioner has not provided a cause for default, nor

demonstrated that there was actual prejudice as a result of the alleged violation of federal law or

that failure to consider the claims will result in a fundamental miscarriage of justice.

In light of the foregoing, Petitioner failed to exhaust his state court remedies as to his first

claim, as this claim was never presented at trial, on direct appeal, at PCRA proceedings or at PCRA

appeal proceedings. Petitioner cannot establish cause for this default and the record does not reflect

that there was prejudice as a result of the alleged violation of federal law, nor does it demonstrate

that failure to consider the claims will result in a fundamental miscarriage of justice. Petitioner’s

claims are dismissed as procedurally defaulted.

b. Objection to Denial of Ineffective Assistance of Counsel Claim

Petitioner also objects to the R&R’s rejection of his second claim, that counsel was

ineffective on direct appeal for failing to challenge the discretionary aspects of his sentence. As

the R&R explained, Petitioner is entitled to relief under 28 U.S.C. § 2254(d)(1)-(2), “if the

Pennsylvania court’s rejection of his claims was: (1) “contrary to, or involved an unreasonable

application of,” clearly established law; or (2) “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)(1)-(2).

See also R&R at pg. 12 of 19 [ECF No. 25].

Pursuant to 28 U.S.C. § 2254(d)(1), In order to obtain relief, Petitioner must show that the

state appellate court’s application of the Supreme Court’s test for reviewing ineffective assistance

claims as articulated in Strickland was unreasonable. This “unreasonable application” inquiry

requires the habeas court to “ask whether the state court’s application of clearly established federal

law was objectively unreasonable.” Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2000). See

also R&R at pg. 12 of 19 [ECF No. 25].

Strickland requires state courts to consider whether (1) counsel’s performance fell below

an objective standard of reasonableness; and (2) the performance was prejudicial to the defense.

Strickland, 466 U.S. at 688. The state court’s application of Strickland was not unreasonable. The

record notes multiple times that the trial court provided ample reasoning for Petitioner’s sentence.

On PCRA Appeal, the Superior Court weighed the aggravating and mitigating factors, and

concluded the aggravating factors surrounding the shooting outweighed the mitigating factors. As

the R&R notes, “As the Superior Court explained, direct-appeal counsel was not ineffective in

failing to challenge his sentence where the aggravating factors, such as his propensity for violent

crime and his endangerment of a juvenile bystander during the shooting, outweighed the limited

mitigating factors, and where the sentence was “well within the [sentencing] court’s discretion.”

See R&R at pg. 14 of 19 [ECF No. 25].

Under these circumstances, Petitioner does not establish that the state court unreasonably

applied Pierce/Strickland. Petitioner’s appellate counsel is not ineffective for failing to bring forth

meritless argument. “Effective appellate counsel should not raise every nonfrivolous argument on

appeal, but rather only those arguments most likely to succeed.” Smith v. Murray, 477 U.S. 527,

536 (1986); Jones v. Barnes, 463 U.S. 745, 751-753 (1983). Declining to raise a claim on appeal,

therefore, is not ineffective unless that claim was plainly stronger than those actually presented to

the appellate court. See Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L. Ed. 2d 756

(2000). There is no 6th Amendment violation for deprivation of effective counsel for counsel’s

failure to bring a meritless claim. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999). Thus,

Petitioner is not entitled to relief under 28 U.S.C. § 2254(d)(1).

With regards to relief under 28 U.S.C. § 2254(d)(2), Petitioner bears the burden of

establishing that the rejection of his claim by the state courts was “based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.” Bomar

v. Wetzel, No. 04-1730, 2023 U.S. Dist. LEXIS 57879 at *24 (E.D. Pa. Mar. 31, 2023). As the

R&R notes, “[f]actual issues determined by a state court are presumed to be correct, and the

petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts

v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)). If “’[r]easonable

minds reviewing the record might disagree’ about the finding in question, ‘on habeas review that

does not suffice to supersede the trial court’s…determination.’” Brumfield v. Cain, 576 U.S. 305,

313-14 (2015). See also R&R at pg. 15 of 19 [ECF No. 25].

The Court agrees with the R&R that Petitioner has failed to establish the state courts’

adjudication of his ineffectiveness claim was based on an unreasonable determination of the facts

of record. See R&R at pgs. 15-18 of 19 [ECF No. 25]. The record reflects that the sentencing court

addressed each mitigating factor that the Petitioner contends was overlooked. See Dec. 1, 2016

Sentencing Tr., at 39:12-42:12 [ECF No. 19-4]. With regards to the aggravating factors, the

sentencing court explained that Petitioner’s prior arrests were a factor considered, but he was not

being sentenced for those offenses. Id. at 37:10-40:17. The court also noted the circumstances of

the shooting, and that a child was standing next to the defendant at the time of the shooting. Id. at

40:5-19. The adjudication of Petitioner’s claim was not based on an unreasonable determination

of the facts of record.

In light of the foregoing, Petitioner failed to establish that the state court adjudication of

his claim resulted in a decision that was contrary to, or involved an unreasonable application of

clearly established federal law, or resulted in a decision based on an unreasonable determination

of the facts in light of the evidence presented in the state court proceeding. Petitioner is not entitled

to relief on this claim.

c. Objections Raising New Claims

Lastly, Petitioner raises new arguments in his objections that were not presented to the

Magistrate Judge and never adjudicated in state courts – namely, that the sentences should have

merged under the merger doctrine 42 Pa.C.S. § 9765, the issue should have been presented to a

jury, and he did not knowingly and intelligently waive his right to jury trial. See generally

Objections [ECF 26].

Petitioner did not assert these issues as grounds for relief in his original habeas petition,

and only brings them now in his Objections. See generally, Petition at pgs. 8-10 [ECF No. 1]. As

previously discussed, arguments that were not presented to the Magistrate Judge and are raised for

the first time as objections are deemed waived. In re Nat'l Collegiate Student Loan Trs., 971 F.3d

at 444 (“Arguments not presented to a magistrate judge and raised for the first time in objections

to the magistrate’s recommendations are deemed waived.”).

V. CONLCUSION

For the foregoing reasons, Petitioner’s Objections to the Report and Recommendation of

Magistrate Judge Lynne A. Sitarski (ECF No. 26) are overruled, and the Report and

Recommendation of Magistrate Judge Lynne A. Sitarski (ECF No. 25) is approved and adopted.

The Petition (ECF No. 1) is dismissed with prejudice, and the case will be closed. An appropriate

order follows.

BY THE COURT:

/s/ John M. Gallagher

JOHN M. GALLAGHER

United States District Court Judge