Opinion

Maitland v. Gilmore

Court
District Court, M.D. Pennsylvania
Filed
Sep 4, 2019
Cited by
0 cases
Authority
More cited than 29.0%

“It is not the role of an appellate court ... to pass on the credibility of witnesses or to act as the trier of fact, and an appellate court will not substitute its judgment for that of the fact-finder.”

How later courts described this case

  • “It is not the role of an appellate court ... to pass on the credibility of witnesses or to act as the trier of fact, and an appellate court will not substitute its judgment for that of the fact-finder.”
  • abrogated on other grounds, Beard v. Kindler, 558 U.S. 53 (2009)
  • “These claims do not involve ineffective assistance of [trial] counsel. Martinez does not apply.”
  • declining to extend Martinez to defaulted claims of ineffective assistance of appellate counsel

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

NIGEL ALI MAITLAND : Civil No. 3:16-cv-2044

:

Petitioner :

: (Judge Munley)

v. :

:

ROBERT GILMORE, PA STATE :

ATTORNEY GENERAL, :

:

Respondents :

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM

Petitioner Nigel Ali Maitland (“Petitioner” or “Maitland”), a state inmate currently

confined at the State Correctional Institution at Huntingdon, Pennsylvania, files the

instant petition (Doc. 1) for writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking

relief from convictions of murder in the first degree, 18 PA.C.S. § 2502(a), criminal

conspiracy, 18 PA.C.S. § 903, and a firearms violation 18 PA.C.S. § 6105, obtained in

criminal case CP-67-CR-00003898-2009, in the Court of Common Pleas of York County,

Pennsylvania. The petition is presently ripe for disposition. For the reasons set forth

below, the petition will be denied.

I. Background

The facts underlying Maitland’s convictions are contained in the June 19, 2012

decision of the Superior Court of Pennsylvania affirming his Judgment of Sentence which

was entered in the Court of Common Pleas of York County on August 4, 2011. (Doc. 13-

1). The facts are as follows:

In the early hours of May 10, 2009, [Maitland], Skyler Handy

(“Handy”), Bradley Walker, (“Walker”), and several other young men from

the Parkway area of York City, were at Cheers Bar on East Market Street in

East York. The bar was located in a “neutral zone,” i.e., not part of the

Parkway area or the South Side area. A fight broke out at the bar, between

members of the Parkway area and the South Side area over an incident that

occurred a month earlier and involved [Maitland’s] younger brother, Niam

Johnson.

At trial, Fernando Valentin, Jr. (“Valentin”), who was originally

charged with first-degree murder and criminal conspiracy along with

[Maitland], testified for the Commonwealth in exchange for the

Commonwealth’s promise to drop all charges filed against him. Valentin

testified that he arrived at the bar just prior to the fight. According to

Valentin, someone pushed him to the floor while trying to get to [Maitland].

Bottles and stools were thrown during the bar fight and Walker was badly

injured. As Valentin was getting up off the floor, he saw a group of young

men rush toward him, [Maitland], and their companions. Valentin and

[Maitland] fled the bar. [Maitland] left in a red Dodge Avenger. Valentin

ran and called his cousin to pick him up down the street from the bar.

Valentin’s cousin picked him up and took him to the Parkway area to

meet up with [Maitland], Handy, and others. When Valentin arrived, he saw

one of the young men from the Parkway area waving a gun and arguing with

“Woody,” who was from the South Side area, about the bar fight. Once

Woody left the area, [Maitland], Handy, and some others came out of a

house. Some of the young men got into a Ford Fusion, while others, including

[Maitland], got into the Dodge Avenger. Although the two cars first stopped

at the Holiday Inn on Route 30 in York, they proceeded to cross the street

and rent a room at the Days Inn. At some point, Valentin went to get a soda.

When he returned, only [Maitland] and Handy were in the room. At this time,

Valentin observed an automatic handgun on the lower portion of a nightstand

between the two beds, as well as a revolver in [Maitland’s] shoe. [Maitland],

Handy, and Valentin talked for a while, and then went to sleep. Sometime

before noon, [Maitland] and Handy woke up Valentin, and the three checked

out of the hotel.

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[Maitland], Handy, and Valentin then drove in the Dodge Avenger to

Lee’s Store on Pershing Avenue in the Parkway area of York. At the store,

the trio met others from the Parkway area and discussed the fight that

occurred at Cheers. [Maitland] left at one point and returned to join the group.

During that time, a silver Chevy Tahoe drove by the store. [Maitland] and

Handy approached the Chevy Tahoe; shortly thereafter, the Tahoe left the

area.

Around 2: 00 p. m., [Maitland], Handy, and Valentin entered the

Dodge Avenger, with [Maitland] driving, Handy in the passenger seat, and

Valentin in the back seat behind Handy. According to Valentin, they intended

to finish smoking their marijuana and go to the mall to shop for Mother’s

Day presents. At some point, Valentin told [Maitland] to drop him at his

sister’s house, but [Maitland] drove in the opposite direction.

According to Valentin, the car was driving on Duke Street in an area

of York that he knew “was outside of our territory.” N. T., 3/ 8/ 11, at 511.

Valentin then heard [Maitland] say, “Oh shit,” and the car swerved and

stopped. After ducking down in the back seat, Valentin looked up and saw

Handy hanging out of the window of the vehicle with a semi-automatic gun

in his hand. At that time, Valentin also heard the driver’s side door open,

followed by three to four shots being fired by [Maitland]. [Maitland] then got

back into the car and the three fled the scene.

Valentin further testified that, as [Maitland] was driving away from

the scene, Handy was trying to unjam the semi-automatic gun and

inadvertently pointed it at [Maitland]. [Maitland] yelled at Handy and told

him to give the gun to Valentin. According to Valentin, [Maitland] said that

he hoped “none of them bitches got hit that was over there.” N. T., 3/ 8/ 11,

at 515. As [Maitland] proceeded to drive up South Duke Street, someone

appeared in front of them and threw a brick or rock at the side of the car. The

impact knocked the passenger side mirror off the vehicle.

[Maitland] continued to head north to a small parking lot where he

parked the Dodge Avenger. After checking the damage to the vehicle, the

trio left on foot and proceeded to Smith Street. Once there, Handy got into

the driver’s seat of a silver Chevy Tahoe. Valentin got into the passenger

seat, and [Maitland] entered the back seat. Handy drove the vehicle to Lee’s

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Store, where the three told some young men standing in front of the store

what had happened. According to Valentin, they told them “to be careful in

case [some] Southside dudes try to come around.” N. T., 3/ 8/ 11, at 520.

Handy then drove to the West Manchester Mall in York. Valentin

testified that they were going to stop at the Bon Ton, but instead went into

the movie theater and bought some tickets. After they bought the tickets,

however, Handy began to get some phone calls about the shooting. The trio

then left the theater without watching the movie. Handy then dropped

Valentin off, and he and [Maitland] left in the Chevy Tahoe.

Mariah Johnson-Skibber testified that she was in front of 537 South

Duke Street playing with the nine-year-old victim and some other children.

According to Ms. Johnson-Skibber, a group of about fifteen to twenty males,

ages thirteen to twenty, were hanging out on the same side of the street. Ms.

Johnson-Skibber heard one of the young men scream, “Oh, shit,” and she

then saw a red car coming up the street swerving and stop about five houses

up from where she and the kids were playing. Ms. Johnson-Skibber then

observed [Maitland] get out of the driver’s side of the vehicle with a gun

and point it in her direction. According to Ms. Johnson-Skibber, after she

heard the first shot, she picked up one of the kids and hid behind a porch. She

testified that she heard three to four shots coming from the same gun. After

Ms. ]ohnson-Skibber saw the car drive away, she came out from behind the

porch and saw the victim laying on her stomach in a pool of blood and asking

for help. The victim’s uncle ran outside, put the victim in his car, and drove

to the hospital. The victim died a short time later from a gunshot wound to

her back.

The Commonwealth also introduced a letter [Maitland] had written

while he was incarcerated. Within the letter, [Maitland] wrote:

I’m sitting here reading your letter, and the shit brought me to tears

because this shit hurts, and I know you just as sick as me, cuz, and the

crazy thing about it was I was on my fallback, but them bitch ass niggas

was taking it too far. They crossed the line when they fucked with [my

younger brother]. Them bitch niggas sent some young boys to rob him

just to get my [cell phone] number, then called me off of [my brother’s]

phone saying they kidnapped him. They didn’t, but that was the last

fucking straw. I was letting mad little shit slide, but I couldn’t let that

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rock. I just wish that lil girl didn’t get hurt by a stray. That shit hurts on

the inside because it wasn’t intended for her.

Now I got this case to deal wit [sic], and on top of that, both of my [co-

defendants] are telling. So, like I said, I just turn to God, but I keep my

mouth shut, and you already know I’m on my shit. Win, lose, or draw,

imma [sic] fucking rumble. I never been a bitch, and I’m damn sure not

going to start now. N. T., 3/ 9/ 11, at 629- 30.

[Maitland] also testified at trial. [Maitland] explained that he was

driving in the South Duke Street area when he saw a black male emerge from

the side of the street and reach for a gun under his shirt. According to

[Maitland], he then swerved and stopped the car, and shot at the male in an

effort to defend himself.

On March 10, 2011, a jury convicted [Maitland] on all three charges.

On April 7, 2011, the trial court sentenced [Maitland] to life imprisonment

for the first-degree murder conviction, a consecutive term of twenty to forty

years of imprisonment for the criminal conspiracy conviction, and a

consecutive term of five to ten years for the firearm violation.

(Doc. 13-1, pp. 1-6).

Maitland filed a direct appeal raising the following issues:

I. Whether the trial court erred in concluding the Commonwealth presented

sufficient evidence to sustain guilty verdicts on the criminal offenses of

Murder in the First Degree and Criminal Conspiracy to Commit Criminal

Homicide?

II. Whether the trial court erred in denying [Maitland’s] motion for judgment

of acquittal on the basis that the weight of the evidence presented at trial

showed that he did not possess a specific intent to kill?

III. Whether the trial court erred in denying [Maitland’s] motion for change

of venue/ venire when the highly scrutinized media coverage the case

received prevented him from empanelling a fair and impartial jury from York

County?

5

(Id. at 7). The Superior Court affirmed the Judgment of Sentence on June 19, 2012. (Id.

at 23).

Maitland pursued his direct appeal in the Pennsylvania Supreme Court; the court

affirmed on April 26, 2013. (Doc. 13-8, p. 2). Thereafter, he petitioned the United States

Supreme Court for Writ of Certiorari, which the Supreme Court denied on November 14,

2013. (Id.)

On February 26, 2014, Maitland filed a petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 PA.C.S.A. §§ 9541-9546. He raised a number of claims which

the PCRA addressed in two separate opinions. In the first opinion, the court rejected the

ineffective assistance of counsel claims concerning counsel’s failure to object to the

statements made by the prosecution during closing argument which indicated that

Maitland was in a gang, contrary to the testimony of the expert witness who only testified

that Maitland could be in a gang; counsel’s failure to strike Juror No. 48 for cause; and,

counsel’s failure to view a surveillance video with Maitland. (Doc. 13-7, pp. 1-5). The

court also rejected his claim that the trial court erred with regard to a curative instruction.

(Id.). In its second opinion, the court rejected Maitland’s claim that counsel was

ineffective in failing to use impeachment evidence against witnesses Johnson and

Valentin.1 (Doc. 13-8, p. 2; Doc. 1, pp. 34, 35).

1 There are different spellings of the name of witness Fernando Valentin. During the trial and in most of the state

court opinions, he is referred to as Valentin. (Doc.13-1, p. 2; Doc. 13-2, p. 3Doc. 13-10, p. 3). The PCRA court and

Maitland refers to him as Valentine. (Doc. 13-7, p. 3; Doc. 1, p. 20). The Court will assume that “Valentin,” the

spelling the witness provided during his trial testimony is the correct spelling.

6

Maitland pursued an appeal, raising the following issues:

1. Whether the [PCRA] court committed an error of law when it denied relief

pursuant to the [PCRA] on the basis that trial counsel was ineffective for

failing to timely object to the prosecutor’s references in closing argument to

[Maitland’s] gang affiliation?

2. Whether the [PCRA] court committed an error of law when it denied relief

pursuant to the [ PCRA] on the basis that the trial court’s curative instruction

regarding [Maitland’s] gang affiliation and the prosecutor’s closing

argument was insufficient to prevent prejudice?

3. Whether the [PCRA] court committed an error of law when it denied relief

pursuant to the [PCRA] on the basis that trial counsel was ineffective for

failing to strike Juror Number [Forty-eight] who felt sorry for the victim and

was unsure of whether she could be fair and impartial?

4. Whether the [PCRA] court committed an error of law when it denied relief

pursuant to the [PCRA] on the basis that [d]efense counsel was ineffective

for withdrawing a Rule 600 motion which had arguable merit and [Maitland]

was not in agreement?

(Doc. 13-4, pp. 2, 3, citing Maitland’s Brief).

On September 28, 2015, in affirming the denial of PCRA relief, the Superior

Court addressed the first and fourth claims on the merits, but deemed the second and third

issues waived. (Id. at pp. 4-8). Maitland filed a petition for allowance of appeal with the

Supreme Court, which the court denied on February 1, 2016. (Doc. 13-13).

Maitland filed the instant petition on October 11, 2016.

II. Issues Presented for Federal Review

Maitland presents the following issues for our review:

1. Ineffective assistance of trial counsel in failing to preserve and

prepare to litigate his right to a speedy trial.

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2. Ineffective assistance of trial counsel in failing to strike a biased juror.

3. Ineffective assistance of trial counsel in failing to object to the

prosecutor’s gang references during closing argument.

4. Trial court error with regard to a curative instruction.

5. Ineffective assistance of PCRA counsel.

6. Ineffective assistance of trial counsel in ignoring impeachment

evidence of two Commonwealth witnesses.

7. Ineffective assistance of trial counsel with regard to surveillance video

presented at trial.

8. Ineffective assistance of trial counsel in failing to investigate and

prepare to litigate the critical issues of ballistic evidence including his

failure to secure independent ballistic expert, forensic pathologist

expert and or to seek D.N.A. testing on any available evidence.

(Doc. 1, pp. 5, 6, 8, 9, 15, 20, 25, 30).

III. Discussion

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism

for a prisoner to challenge the “fact or duration” of his confinement. Preiser v.

Rodriguez, 411 U.S. 475, 498-99 (1973). Maitland’s case is governed by the

Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat.

1214, April 24, 1996 (“AEDPA”). 28 U.S.C. § 2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court

shall entertain an application for a writ of habeas corpus in behalf of a person

in custody pursuant to the judgment of a State court only on the ground that

he is in custody in violation of the Constitution or laws or treaties of the

United States.

8

(b)(1) an application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted unless

it appears that –

(A) the applicant has exhausted the remedies available in the courts

of the State;

...

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

(1) resulted in a decision that was contrary to or involved an unreasonable

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

Supreme Court of the United States; or

(2) resulted in a decision that 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. Section 2254 clearly sets limits on the power of a federal court to

grant an application for a writ of habeas corpus on behalf of a state prisoner. Cullen v.

Pinholster, 536 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir.

2014). A federal court may consider a habeas petition filed by a state prisoner only “on

the ground that he is in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does not lie for

errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Pulley v. Harris,

465 U.S. 37, 41 (1984). By limiting habeas relief to state conduct which violates “the

Constitution or laws or treaties of the United States,” § 2254 places a high threshold on

the courts. Additionally, relief cannot be granted unless all available state remedies have

9

been exhausted, or there is an absence of available state corrective process, or

circumstances exist that render such process ineffective to protect the rights of the

applicant. See 28 U.S.C. § 2254(b)(1).

A. Exhaustion and Procedural Default

Habeas relief “shall not be granted unless it appears that . . . the applicant has

exhausted the remedies available in the courts of the State,” meaning a state prisoner

must “fairly present” his claims in “one complete round of the state’s established

appellate review process,” before bringing them in federal court. 28 U.S.C. §

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

“[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair

opportunity to resolve federal constitutional claims before those claims are presented to

the federal courts, . . . state prisoners must give the state courts one full opportunity to

resolve any constitutional issues by invoking one complete round of the State’s

established review process.”); see also Duncan v. Henry, 513 U.S. 364, 365 (1995);

Picard v. Connor, 404 U.S. 270, 275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513

(3d Cir. 1997). The exhaustion requirement is grounded on principles of comity in order

to ensure that state courts have the initial opportunity to review federal constitutional

challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

A petitioner has exhausted a federal claim only if he or she presented the

“substantial equivalent” of the claim to the state court. Picard, 404 U.S. at 278. To

satisfy this requirement, a petitioner must “fairly present” his federal claim’s “factual and

10

legal substance to the state courts in a manner that puts them on notice that a federal

claim is being asserted.” Robinson v. Beard, 762 F.3d 316, 328 (3d Cir. 2014); see

Baldwin v. Reese, 541 U.S. 27, 29 (2004); see McCandless v. Vaughn, 172 F.3d 255, 261

(3d Cir. 1999).

1. Ground 2

Ground 2 contains a claim that trial counsel was ineffective for failing to strike

Juror #48 based on bias. Maitland raised the issue during his initial PCRA proceedings

and pursued it on appeal. The Superior Court disposed of the issue as follows:

Maitland also argues that Attorney Spadafora and co-counsel, Autumn

Walden, Esquire, were ineffective for failing to strike a particular juror, Juror

Number Forty-eight, for cause because she stated that she had read about the

crime and felt sad for the family of the victim. Maitland’s Brief at 17.

Maitland does not cite, much less discuss, even one authority in support of

his position. See id, at 17- 20. The Rules of Appellate Procedure require that

appellants adequately develop each issue raised with discussion of pertinent

facts and pertinent authority. See Pa. R. A. P. 2119(a). It is not this Court’s

responsibility to comb through the record seeking the factual underpinnings

of an appellant’s claim. Commonwealth v, Mulholland, 702 A. 2d 1027, 1034

n. 5 (Pa. 1997). Further, this Court will not become the counsel for an

appellant and develop arguments on an appellant’s behalf. Commonwealth

v, Gould, 912 A. 2d 869, 873 ( Pa. Super. 2006). It was Maitland’s

responsibility to provide an adequately developed argument providing

citation to and discussion of relevant authority. Because he has failed to do

so, we find this issue waived.

(Doc. 13-4, pp. 5, 6).

“[A] state prisoner’s habeas claims may not be entertained by a federal court

“when (1) ‘a state court has declined to address those claims because the prisoner had

failed to meet a state procedural requirement,’ and (2) ‘the state judgment rests on

11

independent and adequate state procedural grounds.’ ” Walker v. Martin, 562 U.S. [307,

316] (2011) (quoting Coleman, 501 U.S. at 729-30).” Maples v. Thomas, 565 U.S. 266,

280 (2012). A decision based on a state procedural rule is considered independent if it

does not rely on the merits of the federal claim or rest primarily on federal grounds.

Harris v. Reed, 489 U.S. 255, 260 (1989); see also Ake v. Oklahoma, 470 U.S. 68, 75

(1985). A state rule is “adequate” for procedural default purposes if it was “firmly

established, readily ascertainable, and regularly followed at the time of the purported

default.” Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001). “[A] state procedural

ground is not ‘adequate’ unless the procedural rule is ‘strictly or regularly followed,’ ”

Johnson v. Mississippi, 486 U.S. 578, 587 (1988), and the rule “speaks in unmistakable

terms.” Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996) (abrogated on other grounds,

Beard v. Kindler, 558 U.S. 53 (2009)). These requirements ensure that “federal review is

not barred unless a habeas petitioner had fair notice of the need to follow the state

procedural rule,” and that review is foreclosed by “what may honestly be called ‘rules’ ...

of general applicability[,] rather than by whim or prejudice against a claim or claimant.”

Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007) (quoting Bronshtein v. Horn, 404

F.3d 700, 707 (3d Cir. 2005)).

Pennsylvania Rule of Appellate Procedure 2119(a) requires that each argument

presented on appeal be “followed by such discussion and citation of authorities as are

deemed pertinent.” PA. R. A. P. 2119(a). A failure to cite legal authorities or to develop

12

argument results in waiver. See, e.g., Williams v. Patrick, No. 07-776, 2014 WL

2452049, at *7 (E.D. Pa. June 2, 2014) (explaining a “doctrine of waiver” has been long

incorporated into Rule 2119(a) (overruled on other grounds); Commonwealth v. Love,

896 A.2d 1276, 1287 (Pa. Super. 2006) (citing Commonwealth v. Burkett, 830 A.2d

1034, 1038 (Pa. Super. 2003) and Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa.

Super. 1998) ) (stating “Of particular importance is the provision of Rule 2119(a) that a

brief must contain a developed argument augmented by citation to pertinent authorities.

Arguments not appropriately developed are waived.”). Federal courts in this circuit have

found this “waiver rule” to be an independent and adequate state court ground precluding

federal review. See Rodriguez v. Giroux, No. CV 15-6182, 2017 WL 10821396, at *17

(E.D. Pa. Feb. 17, 2017), report and recommendation adopted, No. CV 15-6182, 2019

WL 587314 (E.D. Pa. Feb. 12, 2019) (collecting cases). There is no dispute that the

waiver rule was firmly established, readily ascertainable, and regularly followed at the

time of the default. It is evident from the above that Maitland’s claim that trial counsel

was ineffective for failing to strike Juror #48 based on bias was not fairly presented to the

state courts. “When a claim is not exhausted because it has not been ‘fairly presented’ to

the state courts, but state procedural rules bar the applicant from seeking further relief in

state courts, as is the case here, the exhaustion requirement is satisfied because there is

‘an absence of available State corrective process.’ 28 U.S.C. § 2254(b). In such cases,

however, applicants are considered to have procedurally defaulted their claims and

13

federal courts may not consider the merits of such claims unless the applicant establishes

‘cause and prejudice’ or a ‘fundamental miscarriage of justice’ to excuse his or her

default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640

(1991).” McCandless, 172 F.3d at 260.

To demonstrate “cause” for a procedural default, a petitioner must point to some

objective external factor which impeded his efforts to comply with the state’s procedural

rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Prejudice” will be satisfied only

if he can demonstrate that the outcome of the state proceeding was “unreliable or

fundamentally unfair” as a result of a violation of federal law. See Lockhart v. Fretwell,

506 U.S. 364, 366 (1993).

Alternatively, if a petitioner demonstrates that a “constitutional violation has

probably resulted in the conviction of one who is actually innocent,” Murray, 477 U.S. at

496, then a federal court can excuse the procedural default and review the claim in order

to prevent a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446,

451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of

justice exception applies only in extraordinary cases, and actual innocence means factual

innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998);

Murray, 477 U.S. at 496. A petitioner establishes actual innocence by asserting “new

reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial,” showing that no

14

reasonable juror would have voted to find the petitioner guilty beyond a reasonable

doubt. Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).

Maitland fails to identify some objective external factor which prevented him from

complying with the state’s procedural rules and he does not demonstrate that the outcome

of the state proceeding was “unreliable or fundamentally unfair” as a result of a violation

of federal law. Nor is there any argument or indication that a “constitutional violation

has probably resulted in the conviction of one who is actually innocent.” Murray, 477

U.S. at 496. Ground 2 is therefore procedurally defaulted and federal review is barred.

2. Ground 4

In Ground 4, Maitland contends that the trial court violated his due process rights

when iy failed to provide the jury with an adequate curative instruction to remedy the

gang affiliation remarks made by the prosecutor during closing arguments. He raised the

issue during his PCRA proceedings. In considering the claim on appeal, the Superior

Court held as follows: “Maitland’s final claim alleges an error on the part of the trial

court; specifically, that a curative instruction the trial court gave to the jury was

inadequate. Maitland’s Brief at 14. A prerequisite for relief under the PCRA is that the

claim the petition seeks to raise is not previously litigated or waived. 42 PA. C. S. A. §

9543( a)( 3). A claim is waived for purposes of PCRA review if the petitioner could have

raised it on direct appeal but did not. Commonwealth v, Rivera, 108 A. 3d 779, 802 (Pa.

2014). Maitland could have raised this claim of trial court error on direct appeal, but he

15

did not. Accordingly, he has waived it and cannot raise it under the PCRA.” (Doc. 13-4,

pp. 7, 8).

The rule relied on by the state court, 42 PA. C. S. A. § 9453(a)(3) requires a

petitioner seeking PCRA relief to plead and prove that the issue he or she raises has not

been waived. Also, 42 Pa. C. S. A. § 9544(b) states that “an issue is waived if the

petitioner could have raised it but failed to do so ... on appeal or in a prior state

postconviction proceeding.” Because the state court determined that Maitland waived

this issue in failing to meet a state procedural requirement, a finding which rests on an

independent and adequate state law ground, the claim is procedurally defaulted.

Mailtand failed to fairly presented this issue to the state courts and, as such, it is

unexhausted and procedurally defaulted. He fails to identify some objective external

factor which prevented him from complying with the state’s procedural rules and he does

not demonstrate that the outcome of the state proceeding was “unreliable or

fundamentally unfair” as a result of a violation of federal law. And there is no argument

or indication that a “constitutional violation has probably resulted in the conviction of

one who is actually innocent.” Murray, 477 U.S. at 496. Ground 4 is therefore

procedurally defaulted and federal review is barred.

3. Ground 6

In Ground 6, Mailtand alleges that trial counsel ignored evidence relevant to the

impeachment of witnesses Valentin and Johnson. (Doc. 1, p. 20). He raised the issue in

16

his initial PCRA proceedings and the PCRA court adjudicated the claim on the merits.

(Doc. 13-8, pp. 34, 35). However, he failed to pursue the claim in his PCRA appeal.

Maitland concedes that this claim is unexhausted and procedurally defaulted. (Doc. 1, p.

21).

In his Traverse, he indicates that he is relying on the Martinez v. Ryan, 566 U.S. 1

(2010) exception to excuse the procedural default of his claim. (Doc. 19, p. 13)

Martinez recognized a “narrow exception” to the general rule that attorney errors in

collateral proceedings do not establish cause to excuse a procedural default. Specifically,

Martinez holds that “[i]nadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural default of a claim of

ineffective assistance at trial.” 566 U.S. at 9. To successfully invoke the Martinez

exception, a petitioner must satisfy two factors: that the underlying, otherwise defaulted,

claim of ineffective assistance of trial counsel is “substantial,” meaning that it has “some

merit,” id. at 14; and that petitioner had “no counsel” or “ineffective” counsel during the

initial phase of the state collateral review proceeding. Id. at 17, 132 S.Ct. 1309; see also

Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014).

A petitioner demonstrates the underlying ineffective assistance of trial counsel

claim has “some” merit by “show[ing] that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

17

Workman, 915 F.3d at 937-38; see also Martinez, 566 U.S. at 13-14. A petitioner

demonstrates that post-conviction counsel’s ineffectiveness caused the procedural default

by showing that post-conviction counsel’s performance was deficient under the first

prong of the Strickland v. Washington, 466 U.S. 668 (1984) standard. See Preston v.

Sup’t Graterford, SCI, 902 F.3d 365, 376 (3d Cir. 2018); see also Workman v.

Superintendent Albion SCI, 915 F.3d 928, 937–38 (3d Cir. 2019). Satisfaction of the

first Strickland prong requires a petitioner to demonstrate that “counsel’s representation

fell below an objective standard of reasonableness,” with reasonableness being judged

under professional norms prevailing at the time counsel rendered assistance. Strickland,

466 U.S. at 688.

He first argues that that the procedural default should be excused based on PCRA

counsel’s failure to include the claim in the appeal to the Superior Court. However,

because Martinez applies only to defaulted claims of ineffective assistance of trial

counsel, Maitland’s argument that exhaustion should be excused because PCRA counsel

failed to pursue the claim beyond the initial collateral proceedings fails. See Davila v.

Davis, ––– U.S. ––––, 137 S.Ct. 2058, 2065 (2017) (declining to extend Martinez to

defaulted claims of ineffective assistance of appellate counsel); Murray v. Diguglielmo,

No. 09-4960, 2016 WL 3476255, at *4 (E.D. Pa. June 27, 2016) (“These claims do not

involve ineffective assistance of [trial] counsel. Martinez does not apply.”).

18

Maitland also argues that the procedural default should be excused based on

PCRA counsel’s failure to submit additional evidence relevant to the impeachment of

witnesses Valentin and Johnson to the PCRA court following the hearing.

Trial counsel testified at the PCRA hearing as follows:

Q. And do you recall what your strategy was in regards to cross-examining

[Valentin]?

A. Yeah, mainly -- if you first look at his direct testimony, there wasn’t a lot

of – what’s the word I’m looking for? There wasn’t a lot of hurtful testimony

on his direct.

You know, our whole defense here all along was that my client did

shoot and it was in self- defense and my client was extremely remorseful

when someone got hit when he was just trying to defend his own life and get

out of there.

So based on the testimony that was given on direct, it really kind of

added up to what -- to the argument we were making. So, you know, when

you do that and you want to try to cross- examine, you want to make sure

you don’t ask too many questions because you could open up something that

you don’t want to open up on redirect or have them say something you don’t

want them to say based off his direct, and we did some cross- examining, and

we got out of him what we needed.

Q. And do you recall the testimony of an individual named Mariah Johnson-

Skibber?

A. I actually remember her. I can’t remember -- I remember -- I don’t

remember the exact testimony 100 percent. You have to ask me more specific

questions.

Q. Do you remember her testifying specifically on page 234 during your

cross examination that the person, that the shooter wore a white T- shirt and

dark jeans, and a fitted hat?

A. I do remember her. That’s fine, yes.

19

Q. And how did that affect your strategy for this case?

A. I’m trying to think back. I know there was an issue with the color of the

shirt that he did have on. Without having that testimony in front of me, the

transcripts in front of me to review that, which obviously I don’t, I don’t

remember her testimony and how we addressed that specifically enough to

answer that question intelligently. I would have to refer to the transcript.

Q. Now, referring to your closing argument, specifically pages 753 and 754,

is it fair to say that you used the fact that Ms. Skibber identified the shooter

in a white T-shirt, fitted jeans, and a hat as being –

A. Is that what you’re asking me?

Q. -- Skyler Handy?

A. I recall that. I mean, I’m not sure what you’re asking me.

Q. Did you use her testimony regarding what the shooter was wearing to

benefit or to the detriment of Mr. Maitland?

A. Obviously, it was the benefit.

Q. And did you feel any need to impeach her testimony regarding what the

shooter was wearing?

A. No.

(Doc. 13-6, pp. 13-15).

On cross examination, counsel further testified to the following:

Q. Let me just ask you this: Do you recall that [Valentin] gave more than one

statement to the police?

A. Off the top of my head, what they exactly were that would have helped or

hurt my client, no. As with any Defendant, are they more one time they’re

going to help the cops and then they get scared and then they back off and

help themselves and they’re constantly back and forth? Yeah, if there’s

20

something that was a huge red flag that I knew I should have brought in and

I didn’t. The testimony on direct was actually helpful to my client. You have

to be very careful how much you want to ask when you already got helpful

stuff that isn’t hurting your case so he doesn’t slip up and say something. It’s

a balance. You got to be careful. It’s not like, you know, we didn’t have a

chance to speak with him personally. Obviously, he’s represented. So we had

to go with what we had. It’s almost like gambling at Vegas. You got to know

kind of when to put enough in and when to get out.

(Id. at 21, 22). Following the hearing, the PCRA court reserved decision on this issue.

Specifically, in its July 16, 2014, decision, the court stated that “[w]ith regard to issue

four, counsel never used impeachment evidence against two witnesses, we will grant

counsel for the Defendant time to review the discovery and submit as exhibits any

discovery that counsel believes might have impacted the testimony of the two witnesses,

Mariah and Valentin[], who testified, and we will further permit within that time period

any additional or supplemental argument to be submitted by counsel, if counsel desires to

do that. We will give counsel until close of business Friday, August 8th. In the meantime,

the Court will, in light of the arguments raised by Mr. Maitland, today once again review

the testimony of those two witnesses.” (Doc. 13-7, pp. 3, 4).

In its November 3, 2014 decision, after noting that “[c]ounsel has informed us that

she has chosen not to submit any additional information,” the court opined that “[w]e

have reviewed the testimony of the witnesses in question in light of the arguments made

by Mr. Maitland. In view of the fact that Mr. Maitland has not provided any material that

he believes would be suitable for impeachment of these witnesses, we cannot conclude

that trial counsel was ineffective for failing to confront the witnesses with such material.

21

Our review of the witnesses discloses no shortcomings by trial counsel. Accordingly, we

deny Mr. Maitland’s request for post-conviction relief.” (Doc. 1, p. 34).

Maitland argues that PCRA counsel’s failure to submit to the PCRA court

impeachment evidence constituted deficient performance. He identifies the impeachment

evidence as “Vaelntin’s five inconsistent statements leading up to trial,” Valentin’s failed

polygraph test, and Johnson’s incorrect description of his clothing and inconsistent

statements made to police detectives. (Doc. 1, p. 20). However, he fails to submit any of

this evidence. Our inability to review the impeachment evidence prevents us from

concluding that PCRA counsel’s failure to submit the evidence constituted deficient

performance for purposes of Martinez. It also places us in the identical position as the

PCRA court with regard to review of the merits of the underlying claim. As such, we

echo the PCRA court’s conclusion that the claim lacks merit. Because Maitland has not

provided any material that he believes would be suitable for impeachment of these

witnesses, we cannot conclude that the underlying claim, that trial counsel was

ineffective for failing to confront the witnesses with such material, has some merit.

Maitland has failed to meet his burden under Martinez such that he can excuse his

procedural default. Consequently, federal review of this claim is barred.

4. Ground 7

In Ground 7, Maitland alleges he was “denied his right to due process and to

effective assistance of counsel under the Sixth and Fourteenth Amendments…when trial

22

counsel stipulated to the video recording/footage at trial without a proper investigation

before trial of video recording.” (Doc. 1, p. 25). He concedes that the claim is

procedurally defaulted and again relies on Martinez to excuse the procedural default.

Specifically, he seeks to excuse the default because “Apellant [sic] counsel for petitioner

chose not to raise this issue in her apellant [sic] brief to superior court without

Petitioner’s consent.” (Doc. 1, p. 26; Doc. 19, p. 13).

Because Martinez applies only to defaulted claims of ineffective assistance of trial

counsel, Maitland’s argument that exhaustion should be excused because PCRA counsel

failed to pursue the ineffective assistance of trial counsel claim beyond the initial

collateral proceedings fails. See Davila v. Davis, ––– U.S. ––––, 137 S.Ct. 2058, 2065

(2017) (declining to extend Martinez to defaulted claims of ineffective assistance of

appellate counsel). Additionally, to the extent he attempts to raise a due process claim,

he cannot rely on Martinez to excuse a procedural default as the exception only apples to

ineffective assistance of trial counsel claims. Murray v. Diguglielmo, No. 09-4960, 2016

WL 3476255, at *4 (E.D. Pa. June 27, 2016) (“These claims do not involve ineffective

assistance of [trial] counsel. Martinez does not apply.”). Review of this claim is barred.

5. Ground 8

In Ground 8, Maitland contends that trial counsel was ineffective for failing “to

investigate and prepare to litigate critical issues of ballistic evidence including his failure

to secure independent ballistic expert, forensic pathologist expert and or to seek any

23

D.N.A. testing on any available evidence.” (Doc. 1, p. 30). Maitland did not present this

claim in the state courts and it is now procedurally defaulted. He concedes that the claim

is procedurally defaulted but, in an effort to excuse the default, relies on Martinez.

Specifically, he argues that “PCRA counsel was also ineffective for not raising this

record based meritorious issue/claim of trial counsel’s ineffective assistance.” (Id. at 31).

Maitland’s “supporting facts” are as follows:

Petitioner avers trial counsel rendered ineffective assistance due to his failure

to properly prepare to litigate and challenge all ballistic evidence due to the

Commonwealth’s theory that petitioner fired fatal shot and due to it being

more than one firearm involved. Trial counsel’s dependency upon the

prosecution’s files is per-se ineffective of counsel. Counsel’s duty is to seek

and understand any and all evidence. Such a duty necessarily involves an

independent investigation of the physical evidence and the employment of

necessary expert witness. Trial counsel’s reliance on the prosecution’s files

is not substitution for an independent investigation by defense counsel.

(Doc. 1, p. 30). These “facts” are wholly conclusory, lack specificity, are devoid of

citation to the record, and without any supporting evidence. We therefore conclude that

the underlying claim lacks some merit. And, as such, PCRA counsel’s failure to raise the

claim in the PCRA proceedings cannot be considered deficient performance. Because

Maitland fails to satisfy the Martinez requirements, he is unable to excuse the procedural

default of this claim.

24

B. Non-Cognizable Claim

1. Ground Five

In Ground five, Maitland contends that PCRA counsel was ineffective for failing

to include in his PCRA appeal to the Superior Court the issue of trial counsel’s

ineffectiveness in failing to use impeachment evidence against two Commonwealth

witnesses. (Doc. 1, pp. 15-19). Freestanding claims of ineffective assistance of PCRA

counsel are not cognizable on federal habeas review. 28 U.S.C. § 2254(i) (“The

ineffectiveness or incompetence of counsel during Federal or State collateral post-

conviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.”); see also Coleman v. Thompson, 501 U.S. 722, 752–53 (1991);

Pennsylvania v. Finley, 481 U.S. 551, 555–56 (1987). Accordingly, this claim is non-

cognizable.

C. Constitutional Claims Adjudicated on the Merits by the State Courts

Remaining for consideration are the ineffective assistance of trial counsel claims

set forth in Grounds 1 and 3. The state courts adjudicated each of these claims on the

merits. As set forth supra, under the AEDPA, federal courts reviewing a state prisoner’s

application for a writ of habeas corpus may not grant relief “with respect to any claim

that was adjudicated on the merits in State court proceedings” unless the claim (1)

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

clearly established Federal law, as determined by the Supreme Court of the United

25

States” or (2) “resulted in a decision that 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).

“[B]ecause the purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems, and not as a

means of error correction,” Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotations

and citations omitted), “[t]his is a difficult to meet and highly deferential standard . . .

which demands that state-court decisions be given the benefit of the doubt.” Cullen, 563

U.S. at 181(internal quotation marks and citation omitted). The burden is on Maitland to

prove entitlement to the writ. Id.

A decision is “contrary to” federal law if “the state court applies a rule that

contradicts the governing law set forth in [Supreme Court] cases” or “if the state court

confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result different from [Supreme Court]

precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). “[A] state court decision

reflects an ‘unreasonable application of such law’ only ‘where there is no possibility

fairminded jurists could disagree that the state court’s decision conflicts with [the

Supreme] Court’s precedents,’ a standard the Supreme Court has advised is ‘difficult to

meet’ because it was ‘meant to be.’ [Harrison v.] Richter, 562 U.S. 86, [ ] 102, 131 S.Ct.

770. As the Supreme Court has cautioned, an ‘unreasonable application of federal law is

26

different from an incorrect application of federal law,’ Richter, 562 U.S. at 101, 131 S.Ct.

770 (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495), and whether we ‘conclude[ ] in

[our] independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly’ is irrelevant, as AEDPA sets a higher

bar. Williams, 529 U.S. at 411, 120 S.Ct. 1495.” Mathias, 876 F.3d at 476. A decision is

based on an “unreasonable determination of the facts” if the state court’s factual findings

are objectively unreasonable in light of the evidence presented to the state court. Miller-

El v. Cockrell, 537 U.S. 322, 340 (2003).

Finally, Section 2254(e) provides that “[i]n a proceeding instituted by an

application for a writ of habeas corpus by a person in custody pursuant to the judgment of

a State court, a determination of a factual issue shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1).

The Superior Court applied the following standard of review to its analysis of

Maitland’s ineffective assistance of trial counsel claims:

To prove ineffective assistance of counsel, an appellant must show ( 1) that

the underlying claim is of arguable merit; (2) that counsel had no reasonable

basis designed to effectuate the appellant’s interests for the act or omission

in question; and 3) that counsel’s ineffectiveness actually prejudiced the

appellant. Commonwealth v, Moser, 921 A. 2d 526, 531 ( Pa. Super. 2007).

The failure to meet any prong of this test requires that the claim be dismissed.

Id.

(Doc. 13-4, p. 4).

27

The clearly established Federal law governing ineffective assistance of

counsel claims, as determined by the Supreme Court of the United States is as

follows:

Ineffective assistance of counsel claims are “governed by the

familiar two-prong test set forth in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Shelton v. Carroll, 464

F.3d 423, 438 (3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510,

521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). For AEDPA purposes,

the Strickland test qualifies as “clearly established Federal law, as

determined by the Supreme Court.” Williams, 529 U.S. at 391, 120

S.Ct. 1495. Under Strickland, a habeas petitioner must demonstrate

that: (1) counsel’s representation fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that, but for

counsel’s error, the result would have been different. 466 U.S. at 687,

104 S.Ct. 2052. For the deficient performance prong, “[t]he proper

measure of attorney performance remains simply reasonableness under

prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. This review

is deferential:

A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged conduct,

and to evaluate the conduct from counsel's perspective at the time.

Because of the difficulties inherent in making the evaluation, a

court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance....

Id. at 689, 104 S.Ct. 2052

Not every “error by counsel, even if professionally unreasonable,

... warrant[s] setting aside the judgment of a criminal proceeding.” Id.

at 691, 104 S.Ct. 2052. “Even if a defendant shows that particular errors

of counsel were unreasonable, ... the defendant must show that they

actually had an adverse effect on the defense”; in other words, the

habeas petitioner must show that he was prejudiced by counsel's

28

deficient performance. Id. at 693, 104 S.Ct. 2052. To establish

prejudice, “[t]he defendant must show that there is a reasonable

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

the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id. at

694, 104 S.Ct. 2052.

In assessing an ineffective assistance of counsel claim, “the

ultimate focus of inquiry must be on the fundamental fairness of the

proceeding.... In every case the court should be concerned with whether

... the result of the particular proceeding is unreliable because of a

breakdown in the adversarial process that our system counts on to

produce just results.” Id. at 696, 104 S.Ct. 2052.

Rainey v. Varner, 603 F.3d 189, 197–98 (3d Cir. 2010). The Third Circuit has

specifically held that the ineffectiveness assistance of counsel test relied upon by

the Superior Court in this matter is not contrary to the Supreme Court’s Strickland

standard. See Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Maitland does

not argue otherwise.

When the state court has decided the claim on the merits, “[t]he question ‘is

not whether a federal court believes the state court’s determination’ under the

Strickland standard ‘was incorrect but whether that determination was

unreasonable—a substantially higher threshold.’ ” Knowles v. Mirzayance, 556

U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).

“And, because the Strickland standard is a general standard, a state court has even

29

more latitude to reasonably determine that a defendant has not satisfied that

standard.” Id.

1. Ground 1

Maitland alleges that trial counsel’s failure to preserve and prepare to litigate his

right to a speedy trial constituted ineffective assistance of counsel. He states that “both

trial counsel [Attorney Blocher and Attorney Spadafora] withdrew [his] 600(e)

motion/speedy trial in violation of [his] constitutional rights to a fair trial and to due

process due to the lack of due diligence in bringing [him] to trial within the constitutional

time frame aloted [sic] under the Pennsylvania Constitution and the corresponding

federal constitution.” (Doc. 1, p. 5). He contends that “[h]ad trial counsel proceeded

forth in pretrial motions/hearing on this meritorious issue the outcome of these

proceedings would have been different.” (Id.). The issue was raised and fully

adjudicated during the Maitland’s PCRA proceedings.

At the PCRA hearing, Maitland testified to the following during his direct

examination:

A. My issue with the Rule 600 motion would be that my Counsel was

ineffective for waiving Rule 600 in exchange for to drop the death penalty

and schedule it for a Bench Trial, being that the Rule 600 outweighs any

death penalty or anything, because the only cure for it is to discharge the

indictment. That’s why I guess there was a misconsumption (sic) of the law.

That’s why I’m raising ineffectiveness on him because he forced me.

Basically he was coming to see me saying, “Look, man, you’re on trial for

murder, they’re not going to grant you Rule 600. Your best bet is to get the

30

Commonwealth to drop the death penalty and do a Bench Trial.” Me not

knowing nothing, I agreed to do it, but now that I read the law and can see

the case law for it, that it was a misconsumption (sic) of the law, my Counsel

should have fought to argue Rule 600, which was in my best interests because

it was a violation of my 14th Amendment.

Q. Okay. And so you’re saying it wasn’t your -- you weren’t informed

enough to make a decision at that time about what you wanted to do?

A. I’m saying that my lawyer scared me into doing it, because I didn’t know

anything. All I knew was that the Commonwealth was wrong for not taking

me to trial in 365 days . I didn’t know that in detail, the case law, and like the

federal case law out on a speedy trial issue, but my lawyer was saying I

wasn’t going to get it anyway because I was on trial for murder, and they’re

not going to give somebody on trial for murder, they just not going to let you

go, so your best bet is to waive your Rule 600 right, the Commonwealth will

drop the death penalty, and you’ll proceed, you’ll waive your right to a Jury

Trial and proceed to a Bench Trial. That’s why I’m raising ineffective

assistance of Counsel, because like I said, that’s a misconsumption (sic) of

the law, that Rule 600 outweighs that.

Q. When you hired Attorney Spadafora, did you discuss that issue and the

Rule 600 motion with him?

A. He -- he -- Attorney Spadafora didn’t follow suit. He just waived the

motion. He told me, though, he said eventually you’ll probably be able to

bring it up, but he said for right now, just waive it. That’s what he said.

Q. Waive it, meaning what, don’t re-raise it?

A. Don’t go -- have a hearing for it. Basically just leave it waived.

Q. Okay. So it was something you discussed with Attorney Spadafora?

A. Yes.

Q. And he never refiled the Rule 600 motions?

A. No.

Q. Did you tell him that’s what you wanted him to do?

A. I wanted to do it from when I had Bruce Blocher, and then when I had

Vincent Spadafora we went to the actual hearing, because when I had Bruce

31

Blocher, he waived it on record, but it wasn’t a colloquy given. He just said

yeah. You know, Your Honor, I didn’t even speak at this hearing. He did all

the talking. It’s in the transcript. I didn’t say one word at the hearing. He did

all the talking. “Yeah, Your Honor, that’s what my client’s going to do,” you

know, this, that, and the third, and then waived it orally, but the Judge wanted

a specific colloquy of me waiving it. And then by then I had Vincent

Spadafora, and when I got colloquied, he just waived it, too.

Q. The hearing you’re referring to where you didn’t say anything, was that

on August 9, 2010?

A. Yes .

Q. Okay.

ATTORNEY REINER: Those are all my questions, Your

Honor. Cross.

THE COURT: You’re saying the Rule 600 waiver was on

August 9th, is that correct?

THE DEFENDANT: The oral one was. The official colloquy --

THE COURT: Again, I 'm talking to your attorney.

ATTORNEY REINER: It was addressed on the record at that

time, and then it was scheduled for another pre-trial conference. It was

Attorney Dubbs for the Commonwealth and Attorney Blocher, and then

they requested it to be scheduled for a Bench Trial, and the motion was

withdrawn on the record.

THE COURT: On August 9th?

ATTORNEY REINER: Correct, August 9th, 2010, but Mr.

Maitland’s correct, that he wasn’t – he didn’t speak at that time.

THE COURT: All right .

(Doc. 13-5, pp. 22-25). No questions on this issue were posed to Maitland on cross

examination.

Attorney Blocher also testified on the issue:

32

Q. Can you state your name for the record.

A. Bruce Blocher.

Q. And how are you currently employed?

A. With the County of York, the Public Defender’s Office.-

Q. And how long have you been practicing as an attorney?

A. Twenty-nine years plus .

Q. And are you familiar with Nigel Maitland?

A. Yes, I am.

Q. And how did you become familiar with him?

A. I assigned myself to his case in May of 2009.

Q. And during the course of your involvement with him, at some point did

you come to file a Rule 600 claim?

A. Yes, I did.

Q. And when did you file that claim?

A. When did I file it? It was August 2nd, 2010 .

Q. And was a hearing held on that claim?

A. On that motion? No.

Q. What happened in regards to that motion?

A. What happened is, there was discussions -- a series of District Attorneys

were involved in this case, Chuck Patterson who became Judge Patterson,

then Scott McCabe, and then Seamus Dubbs, and there was a discussion with

Seamus Dubbs concerning the fact that, first of all, I didn’t include in there

the time frames after each of the motions I filed that would have taken it to

the next trial term, and also there were discussions with the Commonwealth

about resolving this case, and according to Seamus Dubbs, I remember the

conversation -- there were conversations with Scott McCabe that we were

not prepared to go to trial. Richard Robinson was involved in the mitigation

side of this, the death penalty side of this case, and I’m not sure the status of

his progress in the case at that time. So that -- so we had these discussions

33

and I took that back to Mr. Maitland. At some point there was an offer to

withdraw the death penalty.

THE COURT: I’m sorry. Excuse me, are you saying in your motion

you did not include time after previous motions were filed?

THE WITNESS: Simply the time between the motion filed and the

resolution of the motion, but not anything after that, like to the next trial term.

That was not included in my time table. In addition, there were these

discussions I did have with the Commonwealth trying to -- beginning

December, actually, of 2009, of bringing this case to a resolution and trying

to, again, trying to avoid the death penalty in the case.

BY ATTORNEY ZAMKOTOWICZ :

Q. And did you believe that at that time you were going to win the 600 motion

before Judge Kelley?

A. I couldn’t guarantee a victory. I mean I would have. If Mr. Maitland

wanted me to continue to pursue it, I would have. I told him I was unaware

of a death penalty case being dismissed under Rule 600. I’m fairly certain I

did tell him that. Did I scare him or did I force him or did I threaten him?

Did I mislead him in any way? No, that did not happen. What I did is, I

brought to him the offer by Attorney Dubbs that they would withdraw the

death penalty and that we would go to a non-Jury Trial. Obviously it didn’t

go to a non- Jury Trial, and they still kept their word on the death penalty.

ATTORNEY ZAMKOTOWICZ: No additional questions, Your

Honor.

CROSS EXAMINATION

BY ATTORNEY REINER:

Q. Attorney Blocher, so you filed the Rule 600 motion thinking that it was at

least of arguable merit?

A. Obviously because the 365 days had gone by, and the time between my -

- and the reason I filed it then, I believe Attorney Dubbs was going to call it

in for a status hearing. I think that’s what happened there. I think that’s what

motivated filing the petition, because we had not been before the Court for

some time on this case.

34

Q. And was the Commonwealth’s offer to withdraw the death penalty, was

that a result of you filing the Rule 600 motion?

A. I believe so, I mean because they’re always adamant about the death

penalty. Attorney Patterson certainly was during his time involved in the

case. And we were in negotiations about getting the death penalty to a plea,

but that was always an issue. They were not just going to withdraw the death

penalty. That was part -- part of the deal was that the Rule 600 had to go, and

Mr. Maitland made that decision.

Q. Okay. So you felt that -- sorry, go ahead.

A. No, just that, that he made the decision. I didn’t force that on him. I mean

if he had said I want you to pursue this motion, you know, I don’t care if the

death penalty stays in, I would have moved forward with it .

Q. Okay. But you -- I guess you would have felt that at least -- that the

Commonwealth was at least nervous about your motion and possibly losing

it, and that’s why they were offering to take the death penalty off?

A. I don’t know if they were nervous or not, but they did make the offer, so

you can draw whatever conclusions you want from that.

Q. Okay. And then?

A. I mean obviously the motion is jurisdictional, so it could be raised at any

time.

Q. And on August 9th when this was dealt with and the motion was

withdrawn, Mr. Maitland had indicated that there wasn’t any colloquy done

with him.

A. You know, I’ll defer to whatever the record says . I have no recollection

of that hearing.

Q. Okay. And do you recall if there ever was anything done with him on the

record about withdrawing the 600 motion?

A. With me as his Counsel? No, I don’t recall.

ATTORNEY REINER: Court’s indulgence. Al1 right. No further

questions .

REDIRECT EXAMINATION

35

BY ATTORNEY ZAMKOTOWICZ :

Q. The issue at the Rule 600 hearing, would that have involved the question

of due diligence of the Commonwealth?

A. Correct. Well, I raised both the 600 and the 6th Amendment; although

I’ve read cases where they’ve gone on for years and they didn’t find that, at

least from Supreme Court decisions, that it wasn’t a violation of the speedy

trial rule, so -- but we’ve always been taught as Defense Counsel to include

both state and federal issues, and in fact I think it’s an error not to do so.

Q. And earlier you said it had originally been Attorney Patterson. Was he

elected during the course of while this case was pending?

A. Yes .

Q. And of course once he was elected judge, he could no longer continue the

case, correct?

A. Correct. And for a period of time I think I dealt with Attorney Rebert in

December of 2009, and I think it was in the years when Scott McCabe, who

was still in the District Attorney’s Office, became involved in the case.

Q. And do you recall why Attorney McCabe’s involvement ended?

A. Why he became involved? I mean he became involved because Judge

Patterson took the bench, and then there were long-term negotiations that

really went on from probably, like I said, December through March, when I

presented an offer to Mr. Maitland.

THE COURT: Was there a deadline connected to that offer?

THE WITNESS: Your Honor, to be honest, I don’t recall. It took a

while -- I think that was what the Commonwealth was saying to me, as, you

know we gave you all this time to present this to your client, so, you know,

we didn’t call this in thinking this might be resolved. I think that’s going to

be one of their arguments, and that’s why I told Mr. Maitland, I don’t

remember a specific date. I remember I presented it to him in March, because

I actually typed up when it occurred between myself and Mr. Maitland and

what the offer was.

ATTORNEY ZAMKOTOWICZ : I have no additional questions for

Attorney Blocher, Your Honor.

36

RECROSS EXAMINATION

BY ATTORNEY REINER:

Q. Other than Attorney Patterson, District Attorney Rebert, Attorney

McCabe, Attorney Eyster, were there any other attorneys that -- I know you

didn’t deal with Attorney Eyster, but was there any other one, any other

attorneys from the Commonwealth that were?

A. Yes, Attorney Dubbs . He’s the one that was involved in the, I think the

death penalty being withdrawn.

(Doc. 13-5, pp. 31-39).

Attorney Spadafora testified as follows on the issue:

Q. You had indicated that when you first took over the case, there was still

an issue. I don’t know if it was pending before the Court or if it was

something you discussed with your client regarding the 600 motion. Can you

just state what your understanding was of Mr. Maitland’s intentions with that

motion?

A. Yeah. This was right at the time, and if I recall it correctly in the first

hearing or the first time in front of the Judge on this case was to address this

motion when I entered my representation. Bruce Blocher filed the motion

based off of Rule 600. At that time the charges against him were first-degree

murder, and they were going to seek the death penalty. The Commonwealth

-- and most of this agreement was already reached before I jumped in

between Bruce and myself. I just kind of argued it or agreed to it, that the

Commonwealth would take the first -- or, the death penalty off if they would

withdraw the motion.

Q. Okay. And you indicated that you had discussed that with Mr. Maitland?

A. That’s correct.

Q. Do you recall where you had that conversation?

A. We had it both in prison and both in the courthouse.

37

Q. Okay. So if he indicated to the Court here in the process of this PCRA

hearing that he didn’t wish to withdraw the 600 motion, you' re disagreeing

with that now; is that correct?

A. I remember specifically when they came up with the deal to take off the

death penalty, he was extremely happy. There was no question in his mind.

He was, like, yeah, do it.

(Doc. 13-6, pp. 16-17).

In considering the issue on appeal, the Superior Court Superior Court opined as

follows:

Maitland claims that his counsel threatened and bullied [him] into

withdrawing the motion despite the fact that it had merit. Maitland’s Brief

at 20. At the PCRA hearing, both Attorney Blocher and Attorney Spadafora

testified that when discussing this issue with Maitland, Maitland veritably

jumped at the chance to have the death penalty taken off the table and eagerly

agreed to withdraw the Rule 600 motion in exchange for the

Commonwealth’s agreement not to seek the death penalty. N. T.,6/ 25/ 14, at

33- 34; N. T., 7/ 14/ 14, at 6. Although Maitland testified to the contrary, see

N. T., 6/ 25/ 14, at 23, the PCRA court found Attorneys Blocher and

Spadafora credible and concluded that there was a reasonable basis for the

withdrawal of the Rule 600 motion. PCRA Court Opinion, 2/ 3/ 15, at 6.

Maitland disagrees with the PCRA court’s determination that

Attorneys Blocher and Spadafora were credible. Maitland’s Brief at 24 (The

PCRA court erred in assessing credibility in favor of [Maitland’s]

counsel[.]”). As an - appellate court, we may not disturb the lower court’s

credibility determinations. Commonwealth v. Paxton, 821 A. 2d 594, 597 (

Pa. Super. 2003) (“It is not the role of an appellate court ... to pass on the

credibility of witnesses or to act as the trier of fact, and an appellate court

will not substitute its judgment for that of the fact-finder.”). Based upon this

credibility determination, which we are bound to accept, we find no error in

the PCRA court’s conclusion that Maitland failed to prove that there was no

reasonable basis for trial counsel’s withdraw of the Rule 600 motion.

Accordingly, Maitland’s claim fails.

(Doc. 13-4, pp. 6, 7).

38

Maitland argues that the Commonwealth’s sole reliance on the testimony of

Attorney Spadafora is in error. (Doc. 19, p. 2). He argues that Attorney Spadafora did

not and could not participate in the conversations or attend a hearing withdrawing his

Rule 600 motion in exchange for taking the death penalty off the table because he did not

represent him at the time. He indicates that his Rule 600 motion was filed on August 2,

2010, and withdrawn on August 9, 2010, and that Attorney Spadafora was not hired until

August 27, 2010. He states that “[b]ecause Vincent Spadafora was coached to tell the

same story as Bruce P. Blocher so it can be believed by the trial court. And even though

he is an attorney he gave perjured testimony knowingly.” (Id.). Maitland’s PCRA

testimony indicates otherwise. He testified that he discussed the Rule 600 motion with

Attorney Spadafora. He also testified that Attorney Spadafora represented him during a

colloquy hearing on the subject and that he did not testify at the hearing. Rather,

Attorney Spadafora orally “waived” the Rule 600 motion. (Doc. 13-5, pp. 22-25).

“The federal habeas statute provides us ‘no license to redetermine credibility of

witnesses whose demeanor has been observed by the state trial court, but not by [us].’ ”

Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000) (quoting Marshall v. Lonberger, 459

U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)). Given counsels’ credited

testimony at the PCRA hearing concerning the discussions with Maitland about the

agreement to withdraw the Rule 600 motion in exchange for the Commonwealth not

seeking the death penalty, and the absence of any evidence to the contrary, the Superior

39

Court’s reliance on the PCRA court’s finding that Maitland failed to prove that there was

no reasonable basis for trial counsel’s withdrawal of the Rule 600 motion, was not “an

unreasonable determination of the facts in light of the evidence presented in the state

court proceeding.” See § 2254(d)(2). Nor was it contrary to, or an unreasonable

application of Strickland. Maitland is not entitled to relief on this claim.

2. Ground 3

In Ground 3, Maitland contends that he was denied ineffective assistance of

counsel when trial counsel failed to timely object during closing arguments to the

prosecutor’s misrepresentation of the testimony of the Commonwealth’s expert witness

on gangs, Mr. Keiser. (Doc. 1, p. 8; Doc. 19, p. 10). He argues the prosecutor indicated

that “Mr. Keiser testified that the defendant was in a gang. See T.T. pg. 788. When in

fact the only evidence permitted and testified to was that while the evidence points in that

direction Mr. Keiser could not conclude for a fact that the defendant was part of the

parkway gang.” (Doc. 19, p. 10). The record reveals that during closing argument, the

district attorney stated that the shooting was caused by “two rival gangs”; that other

people involved were members of the Parkway gang; that the event that precipitated the

shooting (a bar fight) “started because of gang rivalry”; and characterized the recipient of

a letter that Maitland wrote while in jail as “another Parkway member.” (Doc. 13-4, p. n

2 quoting N.T., 3/9/11 Vol. II, at 788-89). It is his position that trial counsel should have

“immediately objected to the closing argument so as to prevent the jury from being

40

further polluted by the prosecution’s misrepresentation of the testimony of the expert

witness. Instead, Mr. Spadafora waited until the conclusion of the closing argument to

object. See T.T. pg. 804-805. All though [sic] defense counsel did object, his objection

was untimely and allowed the jury to be polluted by the prosecution’s misrepresentation

of the facts.” (Doc. 19, p. 10).

The issue was addressed during the PCRA proceedings. Attorney Spadafora

offered the following testimony on this issue at the PCRA hearing:

Q. Now, the DA’s Office had questioned you about Dustin Keiser and

his testimony at trial regarding the gang affiliation, and what he was referring

to was the objection that came at the end of closing arguments. And you did,

in fact, make an objection to the prosecutor’s statement, but I guess you’re

indicating now you don’t recall that; correct?

A. I don’t, no.

Q. Okay. If I would read that portion of the transcript to you, would

that possibly refresh your recollection?

A. It could, yeah. I mean, we’re talking a couple years. It would be

helpful.

Q. Okay. And this is at the conclusion of closing arguments. You had

asked to approach sidebar, and the discussion was held. You had said, Your

Honor, as far as when the closings started, I didn’t object during closings.

She, referring to Attorney Eyster, stated, My expert said they were part of a

gang. And you said, My understanding of your order said they could be

linked to it, but not, in fact, a conclusion they were part of the gang, so I’m

objecting to that part of the testimony and ask the jury to be instructed

accordingly. Do you recall that?

A. Honestly, I still don’t recall it. If I did it at the end of closing and

not during the closing, if I sat here and heard that same testimony again, I

would not object during closing arguments because I think it is something

they can use based off the testimony that was given.

41

My guess is, and I have to guess because I don’t remember making

that argument, and the fact I made it at the end of closing is that my client

obviously wanted me to, and then I made the argument that I should have,

and at that time I approached and made the argument.

But if I heard that same testimony in closing, I don’t think it’s an

objectionable issue. If your client wants it done, they want it done.

Q. And just as a final question on that, on that issue, do you recall

whether the Court did, in fact, give any kind of curative instruction in closing

instructions regarding the prosecutor' s statement in her closing?

A. Again, I don’t recall that specific.

(Doc. 13-6, pp. 17-19).

The PCRA determined that the statements made by the prosecutor were not

objectionable and concluded that Maitland failed to establish that the first prong of the

ineffectiveness test, that the underlying claim had arguable merit. (Doc. 13-4, pp. 3, 4).

In agreeing with the PCRA court’s conclusion, the Superior Court found as follows:

“[A] prosecutor has considerable latitude during closing arguments and his

or her statements are fair if they are supported by the evidence or use

inferences that can reasonably be derived from the evidence.”

Commonwealth v. Noel, 53 A. 3d 848, 858 ( Pa. Super. 2012), aff’d, 104 A.

3d 1156 ( Pa. 2014). The Commonwealth’s expert in gangs and gang

violence was shown a picture of Maitland’s tattoo, which says “P- Way.” He

testified that based on his training and experience, it was “an indication that

th[e] individual is involved with the Parkway gang.” N. T:, 3/ 9/ 11 Vol II,

at 603- 04. The complained-of statements, that Maitland was in a gang or

affiliated with gang members, were therefore based on inferences that were

reasonably drawn from this evidence. The statements were not objectionable,

and therefore, Attorney Spadafora was not ineffective for failing to object to

them.

(Doc. 13-4, p. 5). Because “counsel cannot be deemed ineffective for failing to raise a

meritless claim,” the Superior Court’s determination that Maitland was not entitled to

42

relief on the ineffective assistance of counsel claim was neither contrary to, nor an

unreasonable application of Strickland. See Werts, 228 F.3d at 203.2 Nor was it an “an

unreasonable determination of the facts in light of the evidence presented in the state

court proceeding.” See § 2254(d)(2).

IV. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final order in a

2 Notably, as Mailtand concedes, at the conclusion of closing arguments, Attorney Spadafora sought a

side bar concerning the prosecutor’s remarks about gang affiliation. (Doc. 19, p. 10). The following

exchange took place:

ATTORNEY SPADAFORA: Your Honor, as far as when the closings started, I didn’t

object during closings. She stated my expert said they were part of a gang.

My understanding of your order said they could be linked to it, but not, in fact, a

conclusion they were part of the gang, so I am objecting to that accordingly.

THE COURT: It is for the jury to determine what the expert said, number one.

I’m not – I’m not as clear as to whether or not there was a direct indication in her

closing argument that they were part of a gang. I’m going to be giving a clear instruction

that being a part of a gang or in association is not proof of any guilt, so I will be covering

that.

ATTORNEY SPADAFORA: Understand.

(Doc. 13-11, pp. 139, 140). The trial court instructed the jury as follows:

Also, I have to note for you, that another important principle is one that is founded on our

United States Constitution. You may not base a decision predicated on guilt by association.

That kind of thinking would violate both the Fifth and the First Amendment to our

constitution. Determination of guilt must be personal and must be that which is tailored to

the charges that the individual is proven to be guilty beyond a reasonable doubt. To draw

an analogy, just because someone is – is or may be shown to have affiliation with X club,

X group, whatever the case may be, that is not the end product that leads to the conclusion

of guilt. It is for the Commonwealth to establish that personal guilt.

(Doc. 13-11, p. 149).

43

proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant has made a

substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322 (2003). Maitland fails to demonstrate that a COA

should issue.

The denial of a certificate of appealability does not prevent Maitland from

appealing the order denying his petition so long as he seeks, and obtains, a certificate of

appealability from the Third Circuit Court of Appeals. See FED. R. APP. P. 22(b)(1).

V. Conclusion

For the reasons set forth above, the petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254 will be denied.

A separate Order will enter.

BY THE COURT:

s/James M. Munley

JUDGE JAMES M. MUNLEY

United States District Court

Dated: September 4, 2019

44

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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