McKenzie v. Tice

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PAUL McKENZIE, :

Petitioner :

: No. 1:18-cv-2210

v. :

: (Judge Rambo)

ERIC W. TICE, :

Respondent :

MEMORANDUM

On November 16, 2018, pro se Petitioner Paul McKenzie (“Petitioner”), who

is currently incarcerated at the State Correctional Institution in Somerset,

Pennsylvania (“SCI Somerset”), initiated the above-captioned action by filing a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)

After receiving three (3) extensions of time, Respondent filed a response to the

petition on October 4, 2019. (Doc. No. 17.) On October 7, 2019, Petitioner filed a

motion requesting that the Court conduct an evidentiary hearing and a fact-

developing procedure. (Doc. No. 18.) After receiving three (3) extensions of time,

Petitioner filed his traverse on March 16, 2020. (Doc. No. 27.) Petitioner’s § 2254

petition is, therefore, ripe for resolution. For the following reasons, the Court will

deny his § 2254 petition (Doc. No. 1) and his motion requesting that the Court

conduct an evidentiary hearing and a fact-developing procedure (Doc. No. 18).

I. BACKGROUND

A. Procedural History

On January 12, 2012, the District Attorney for York County, Pennsylvania,

charged Petitioner with criminal attempt—criminal homicide, aggravated assault,

two (2) counts of rape, sexual assault, aggravated indecent assault without consent,

aggravated indecent assault—forcible compulsion, aggravated indecent assault—

threat of forcible compulsion, unlawful restraint with serious bodily injury, and false

imprisonment. (Doc. No. 17-1 at 18-19.)1 All of these charges stemmed from an

incident that occurred on November 5, 2011. (Id. at 18.) The Superior Court of

Pennsylvania set forth the background of the case as follows:

In this case, [K.N.] testified that [Appellant] strangled her

multiple times to the point of losing consciousness. The first time he

strangled her was with his hands, the second time was with his [t]-[s]hirt

that he had taken off and twisted into a straight line and then wrapped

it around her neck, and the third time was with a shoelace he had

removed from one of his sneakers. While [Appellant] was strangling

[K.N.] with the shoelace, she tried to get her fingertips underneath the

shoelace so she could get some air. [K.N.] also testified that

[Appellant] punched her in the head—behind the ears, on top of the

head, and around her forehead. [K.N.] tried to block the blows by

putting her hands over her head. [Appellant] also punched her in the

back to get her to release her hands so he could continue punching her

in the head. [K.N.] also testified that [Appellant] shoved his fingers up

inside her [vagina] so hard that it pushed her back against the wall.

[K.N.] also testified that [Appellant] raped her twice during this ordeal.

1 For ease of reference, the Court utilizes the pagination assigned to all documents filed in the

above-captioned case by the CM/ECF electronic filing system.

When [K.N.] tried to get away, [Appellant] caught up with her[,]

grabbed her by her hair and around the neck[,] and dragged her back to

the room. The next thing [K.N.] remembered was [Appellant] standing

over her and taking his shoelace out of his shoe, telling her that “now

you really f[***]ed up.” Furthermore, throughout the whole ordeal,

[Appellant] kept telling [K.N.] that “it was time to die,” that he was

going to kill her, and that she was going to die.

[K.N.]’s account of what occurred on November 4, 2011 into

November 5, 2011 was corroborated by the injuries that were

documented by Geneva Keirn, the SAFE Nurse at York Hospital. Ms.

Keirn prepared body maps of those injuries and also took photos of the

injuries sustained by [K.N.]. . . .

In addition, Dr. Wayne Ross, a forensic pathologist, examined

the medical records of [K.N.], the SAFE [n]urse’s notes and

documentation of injuries, the photos of the scene, photos of [K.N.]

taken by the SAFE [n]urse and by her family members and police,

reviewed the police report and preliminary statements by [K.N.], and

performed an analysis. His conclusions were consistent with [K.N.]’s

account of what happened. Dr. Ross concluded that her various injuries

were consistent with: [h]air being pulled[,] [b]lunt force trauma[,]

[r]epeated strangulation[,] and [d]efensive wounds. Dr. Ross also

concluded that [K.N.]’s injuries were inconsistent with consensual

intercourse as there were multiple tears, and the injuries indicate a

severe amount of force was used and penetration was significant and

severe. In addition, Dr. Ross also testified that his findings are

inconsistent with rough sex . . . .

(Doc. No. 17-2 at 349-52.)

On September 14, 2012, court-appointed counsel Thomas W. Gregory, Jr.

filed a motion for appointment of an expert and fees “to have a Doctor (Expert)

examine the medical records and the report received from the District Attorney’s

Office.” (Doc. No. 17-1 at 21.) The Court of Common Pleas for York County

granted that motion on September 21, 2012. (Id. at 23.) Subsequently, Petitioner

filed a pro se motion for substitution of counsel. (Id. at 24-31.) On November 19,

2012, the trial court granted Petitioner’s motion and appointed attorney Joshua

Neiderhiser to represent him. (Id. at 32.) On March 23, 2013, attorney Heather

Reiner replaced attorney Neiderhiser. (Id. at 33.) The trial court held a jury trial on

September 3, 4, and 5, 2013. On September 5, 2013, the jury found Petitioner guilty

of aggravated assault, one (1) count of rape by forcible compulsion, aggravated

indecent assault—forcible compulsion, and unlawful restraint. (Doc. No. 17-2 at 5.)

On December 16, 2013, the trial court sentenced Petitioner to an aggregate sentence

of 26 ½ to 53 years of incarceration. (Id. at 205.) Petitioner subsequently filed a

timely post-sentence motion for a new trial and modification of sentence, which the

trial court denied. (Id. at 207-25.)

Petitioner appealed to the Superior Court of Pennsylvania, arguing that: (1)

there was insufficient evidence to support his convictions; (2) the jury’s verdict was

against the weight of the evidence; and (3) the sentence imposed by the trial court

was unreasonable because it did not adequately address his rehabilitative needs. (Id.

at 254-55.) On April 6, 2015, the Superior Court affirmed Petitioner’s judgment of

sentence. (Id. at 349-67.)

On March 29, 2016, Petitioner filed a pro se Post Conviction Relief Act

(“PCRA”) petition in the Court of Common Pleas for York County. (Doc. No. 17-

3 at 5-16.) On March 31, 2016, the PCRA court granted Petitioner leave to proceed

in forma pauperis and appointed attorney Scott McCabe to represent him. (Id. at

17.) Attorney McCabe was directed to either file an amended PCRA petition or a

no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), within forty-five (45)

days. (Id.) Despite receiving an extension of time until July 13, 2016, attorney

McCabe filed neither an amended petition nor a no-merit letter.

On November 15, 2016, Petitioner filed a pro se motion to remove attorney

McCabe and requesting the appointment of new counsel. (Id. at 20-21.) The PCRA

court did not rule on Petitioner’s motion. On December 12, 2016, attorney McCabe

filed a petition to withdraw as counsel and a no-merit letter. (Id. at 23-43.) The

Commonwealth filed its response to the no-merit letter on February 14, 2017. (Id.

at 54-55.)

On February 16, 2017, the PCRA Court issued a notice that it intended to

dismiss Petitioner’s PCRA petition without holding a hearing. (Id. at 59-66.) The

PCRA Court also granted attorney McCabe’s petition to withdraw. (Id. at 67.) After

receiving an extension of time, Petitioner filed a response to the PCRA Court’s

notice on April 4, 2017. (Id. at 73-81.) On April 24, 2017, attorney Todd Mosser,

appearing on Petitioner’s behalf, filed a motion for an extension of time to file an

amended response. (Id. at 85-87.) The PCRA Court did not rule on attorney

Mosser’s petition. On April 28, 2017, the PCRA Court entered an Order denying

Petitioner’s PCRA petition. (Id. at 89-93.)

On May 17, 2017, Petitioner, through attorney Mosser, filed a notice of appeal

to the Superior Court. (Id. at 96.) On appeal, Petitioner raised the following claims:

(1) the PCRA Court erred in determining that attorney Reiner was not ineffective for

failing to secure an expert witness “to testify to the fact that the alleged victim’s

injuries pre-dated the alleged incident in this case and supported the proposition that

she sustained them in a prior altercation”; (2) the PCRA Court erred in determining

that attorney Reiner was not ineffective for failing to introduce police records

indicating that Petitioner and the victim had been in an altercation within one (1) day

of the attack; (3) the PCRA Court erred in determining that attorney Reiner was not

ineffective for failing to obtain prison phone call recordings between Petitioner and

the victim; and (4) the PCRA court erred in determining that attorney Reiner was

not ineffective for failing to secure the victim’s medical records indicating that the

injuries to her genitalia were the result of a pre-existing disease. (Id. at 101-02.) On

February 14, 2018, the Superior Court affirmed the denial of Petitioner’s PCRA

petition. (Id. at 263-73.) On August 7, 2018, the Supreme Court of Pennsylvania

denied Petitioner’s petition for allowance of appeal. (Id. at 274.) This Court

received Petitioner’s § 2254 petition on November 16, 2018. (Doc. No. 1.)

B. Habeas Claims Presented

Petitioner raises the following claims for relief in his § 2254 petition:

1. Attorney Reiner was ineffective for failing to secure an expert

witness’s testimony despite the fact that funds had been allocated

for the defense to locate an expert;

2. The PCRA Court erred by failing to rule upon Petitioner’s motion

for new counsel, causing Petitioner to be unable to exhaust his

claims for relief;

3. Attorney Reiner was ineffective for failing to challenge the trial

court’s jurisdiction over Petitioner’s criminal proceedings; and

4. Attorney Reiner was ineffective for failing to request jury

instructions on the defense of consent as well as the lesser-included

offense of reckless endangerment.

(Doc. No. 1 at 5-10.)2

II. STANDARD OF REVIEW

Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who

were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran, 247

F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414, 146

(1998)). The exercise of restraint by a federal court in reviewing and granting habeas

2 In his traverse, Petitioner asserts that Respondent has not addressed a sufficiency of the evidence

claim raised in his § 2254 petition. (Doc. No. 27 at 13.) A review of Petitioner’s § 2254 petition,

however, leads the Court to conclude that he never set forth such a claim. In an administrative

Order dated January 2, 2019, the Court advised Petitioner of the limitations regarding the filing of

future § 2254 petitions and directed him to complete and return the enclosed Notice of Election

within forty-five (45) days. (Doc. No. 5.) Petitioner was given the opportunity to withdraw his

§ 2254 petition to file an all-inclusive petition raising all grounds for relief. (Id.) Petitioner was

advised that failure to complete and return the Notice of Election would result in the Court ruling

on his current § 2254 petition as filed. (Id.) A review of the docket reveals that Petitioner never

returned the Notice of Election, and there is no indication before the Court that he never received

the administrative Order. Accordingly, Petitioner’s purported sufficiency of the evidence claim is

not properly before the Court. See Harper v. Kerestes, No. 11-832, 2013 WL 5514285, at *8

(W.D. Pa. Oct. 4, 2013) (noting that “[i]ssues raised for the first time in a traverse are waived”).

relief is appropriate due to considerations of comity and federalism. See Engle v.

Isaac, 456 U.S. 107, 128 (1982). “The States possess primary authority for defining

and enforcing the criminal law. In criminal trials they also hold the initial

responsibility for vindicating constitutional rights. Federal intrusions into state

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

attempts to honor constitutional law.” Id. States also have a recognized interest in

the finality of convictions that have survived direct review within the state court

system. See Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).

A district court may entertain an application for a writ of habeas corpus filed

by a person in state custody “only on the ground that he is in custody in violation of

the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). If a claim

presented in a § 2254 petition has been adjudicated on the merits in state court

proceedings, habeas relief cannot be granted unless:

the adjudication of the claim – (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established [f]ederal 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.

Id. § 2254(d).

III. DISCUSSION

A. Claim Two: Non-Cognizable on Habeas Review

As his second claim for relief, Petitioner contends that the PCRA Court erred

by failing to rule upon his motion for new counsel. (Doc. No. 1 at 7.) Petitioner

maintains that this failure by the PCRA Court denied him his ability to exhaust his

claims for relief in post-conviction proceedings. (Id.) Federal “habeas proceedings[,

however,] are not the appropriate forum for [Petitioner] to pursue claims of error at

the PCRA proceeding.” Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004);

see also Holland v. Folino, No. CIV.A. 13-6623, 2015 WL 1400660, at *1 (E.D. Pa.

Mar. 26, 2015) (noting that “[e]rrors alleged during state collateral review are non-

cognizable on federal review”). As the United States Court of Appeals for the Third

Circuit has explained:

The federal courts are authorized to provide collateral review where a

petitioner is in state custody or under a federal sentence imposed in

violation of the [C]onstitution or the laws or treaties of the United

States. 28 U.S.C. §§ 2254, 2255. Thus, the federal role in reviewing

an application for habeas corpus is limited to evaluating what occurred

in the state or federal proceedings that actually led to the petitioner’s

conviction; what occurred in the petitioner’s collateral proceeding does

not enter into the habeas calculation.

Hassine v. Zimmerman, 160 F.3d 941, 954-55 (3d Cir. 1998). Thus, because

Petitioner’s second claim for relief is based on alleged error that occurred during his

PCRA proceedings, it is not cognizable here. Accordingly, the Court must dismiss

this claim.

B. Claims One, Three, and Four—Ineffective Assistance of Counsel

In his remaining three claims, Petitioner asserts that attorney Reiner rendered

ineffective assistance during his criminal proceedings. First, Petitioner contends that

attorney Reiner failed to “secure the testimony of an expert witness, for which court-

appointed funds had been allow[ed].” (Doc. No. 1 at 5.) Second, Petitioner

maintains that attorney Reiner failed to challenge the trial court’s jurisdiction over

Petitioner’s criminal proceedings. (Id. at 8.) Finally, Petitioner argues that attorney

Reiner failed to request jury instructions on the defense of consent as well as the

lesser-included offense of reckless endangerment. (Id. at 10.) Respondent asserts

that Petitioner’s claims are procedurally defaulted and lack merit. (Doc. No. 17 at

17-19.)

1. Exhaustion and Procedural Default

Absent unusual circumstances, a federal court should not entertain a petition

for writ of habeas corpus unless the petitioner has satisfied the exhaustion

requirement articulated in 28 U.S.C. § 2254(b). Under § 2254(c), a petitioner will

not be deemed to have exhausted his available state remedies if he had the right

under the law of the state to raise, by any available procedure, the question presented.

See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). A petitioner may exhaust a federal

claim either by raising it on direct appeal or presenting it in post-conviction PCRA

proceedings. See id. at 845. In addition, a claim is exhausted when it has been

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

To that end, the federal habeas claim “must be the substantial equivalent of that

presented to the state courts.” See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.

1997). The petition must do so “in a manner that puts [the respondents] on notice

that a federal claim is being asserted.” See Bronshtein v. Horn, 404 F.3d 700, 725

(3d Cir. 2005). “The Supreme Court has instructed that a claim is not ‘fairly

presented’ if the state court ‘must read beyond a petition or brief . . . in order to find

material’ that indicates the presence of a federal claim.” Collins v. Sec’y of Pa. Dep’t

of Corr., 742 F.3d 528, 542 (3d Cir. 2014) (quoting Baldwin v. Reese, 541 U.S. 27,

32 (2004)). Moreover, a habeas corpus petitioner has the burden of proving the

exhaustion of all available state remedies. See 28 U.S.C. § 2254. Overall, the

exhaustion requirement advances the goals of comity and federalism while reducing

“piecemeal litigation.” See Duncan v. Walker, 533 U.S. 167, 180 (2001).

“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, the exhaustion requirement is satisfied because there is an

absence of available State corrective process.” McCandless v. Vaughn, 172 F.3d

255, 261 (3d Cir. 1999). Claims deemed exhausted because of a state procedural bar

are considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d

153, 159 (3d Cir. 2000). The district court then analyzes the claims under the

procedural default doctrine. See id. The purpose of this rule is to prevent habeas

petitioners from avoiding the exhaustion doctrine by defaulting their claims in state

court. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). In Cone v. Bell, 556

U.S. 449 (2009), the United States Supreme Court explained:

It is well established that federal courts will not review questions of

federal law presented in a habeas petition when the state court’s

decision rests upon a statelaw ground that is independent of the federal

question and adequate to support the judgment. In the context of federal

habeas proceedings, the independent and adequate state ground

doctrine is designed to ensure that the State’s interest in correcting their

own mistakes is respected in all federal habeas cases. When a petitioner

fails to properly raise his federal claims in state court, he deprives the

State of an opportunity to address those claims in the first instance and

frustrates the State’s ability to honor his constitutional rights.

Therefore, consistent with the longstanding requirement that habeas

petitioners must exhaust available state remedies before seeking relief

in federal court, we have held that when a petitioner fails to raise his

federal claims in compliance with relevant state procedural rules, the

state court’s refusal to adjudicate the claim ordinarily qualifies as an

independent and adequate state ground for denying federal review.

Id. at 465 (internal quotations and citations omitted).

However, habeas corpus review is not barred in every instance in which a state

court invokes a procedural rule to preclude its review of the federal claims asserted

by a state prisoner. A state procedural rule can preclude federal habeas corpus

review “only when the state rule is ‘independent of the federal question [presented]

and adequate to support the judgment.’” See Leyva v. Williams, 504 F.3d 357, 365

(3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)). The

requirements of independence and adequacy are distinct. See id. A rule is

“independent” if it is not dependent on any federal constitutional question, but “[a]

state procedural ground will not bar federal habeas relief if the state law ground is

‘so interwoven with federal law’ that it cannot be said to be independent of the merits

of a petitioner’s federal claims.” See Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir.

2004). A rule is “adequate” if it was “firmly established, readily ascertainable, and

regularly followed at the time of the purported default.” See Levya, 504 F.3d at 366

(quoting Szuchon v. Lehman, 273 F.3d 299, 372 (3d Cir. 2001)).

A petitioner whose constitutional claims have not been addressed on the

merits due to procedural default can overcome the default, thereby allowing federal

court review, if the petitioner can demonstrate either: (1) “cause” for the default and

“actual prejudice” as a result of the alleged violation of federal law; or (2) that the

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

See Coleman, 501 U.S. at 750. In order to show “cause and prejudice” sufficient to

overcome a state court default, a petitioner must demonstrate the “cause” for his

default and “prejudice” attributable thereto. See Werts v. Vaughn, 228 F.3d 178, 192

(3d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255 (1989)). “[T]he existence of

cause for a procedural default must ordinarily turn on whether the prisoner can show

that some objective factor external to the defense impeded counsel’s efforts to

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488

(1986). Under the “prejudice prong,” a petitioner has the burden of showing “not

merely that the errors at his trial created a possibility of prejudice, but that they

worked to his actual and substantial disadvantage, infecting his entire trial with error

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

see also Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008).

To show a “fundamental miscarriage of justice,” a petitioner must establish

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

actually innocent.” See Schlup v. Delo, 513 U.S. 298, 326 (1995). Demonstrating

actual innocence requires a stronger showing than that needed to establish prejudice.

See id. In Goldblum v. Klem, 510 F.3d 204 (3d Cir. 2007), the Third Circuit

explained the applicable two-step inquiry as follows. First, a “court must decide

‘whether the petitioner has presented new reliable evidence . . . not presented at

trial,’” and second, if a petitioner “puts forth new evidence not considered by the

jury, a court asks ‘whether it is more likely than not that no reasonable juror would

have convicted him in light of the new evidence.’” See id. at 225 (citing Hummard

v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004)). If a petitioner can meet this standard

by establishing “cause and prejudice” or a “fundamental miscarriage of justice,” his

default will be excused, and the Court may review the merits of the claim presented.

See id.

During PCRA proceedings, Petitioner raised Grounds One, Three, and Four

in his pro se PCRA petition. Appointed PCRA counsel filed a “no merit” letter. The

PCRA court addressed Petitioner’s claims for relief in its Notice indicating that

Petitioner’s PCRA petition would be dismissed as well as its Order denying his

PCRA petition. (Doc. No. 17-3 at 59-66, 89-93.) In his Rule 1925(b) statement,

Petitioner indicated that he would be raising Ground One in his appeal of the

dismissal of his PCRA petition. (Id. at 101.) As noted above, the Superior Court

affirmed the dismissal of his PCRA petition. (Id. at 273.) With respect to

Petitioner’s claim regarding attorney Reiner’s failure to hire an expert witness, the

Superior Court, in a footnote, stated:

Arguably, Petitioner raised before the PCRA court in the first

instance his claim that the court erred in permitting PCRA counsel to

withdraw due to counsel’s failure to comply with Turner/Finley.

Although Appellant did not state his claim in clear, plain terms in his

pro se response to the PCRA court’s Pa.R.Crim.P. 907 notice, he does

refer generally to the failure to hire an expert and deficiencies in PCRA

counsel’s compliance with his Turner/Finley duties.

It is more debatable as to whether Appellant stated this issue in

sufficient detail in his counseled concise statement pursuant to

Pa.R.A.P. 1925(b). The concise statement does not refer to the

deficiencies in PCRA counsel’s Turner/Finley response in precise,

clear terms, despite this being the crux of the claim he sets forth in his

brief. Instead, in his concise statement, Appellant focuses on the PCRA

court’s dismissal of his petition notwithstanding the alleged existence

of meritorious claims. With respect to an expert, Appellant specifically

contends trial counsel was ineffective by not hiring an expert to

demonstrate that K.N.’s injuries were from an altercation with another

actor that pre-dated the incident at issue. Yet nowhere in his brief does

Appellant mention the need for an expert to prove K.N. sustained the

injuries in a previous altercation. Instead, Appellant suggests an expert

was necessary to prove that the injuries were the result of K.N.’s

unspecified medical condition involving the vaginal area or rough-but-

consensual sex between K.N. and Appellant.

Rather than finding waiver due to his concise statement, we

determine that the issue Appellant presents on appeal fails on the merits

because his PCRA counsel complied with Turner/Finley as discussed

supra. Additionally, Appellant has waived any argument regarding the

PCRA court’s dismissal of his petition based upon the merit of his

underlying claim of trial counsel ineffectiveness due to Appellant’s

failure to develop this argument in his brief. Appellant did not attempt

to offer analysis or law demonstrating that the PCRA court was

incorrect in concluding that his underlying claim lacked merit.

(Id. at 268 (internal citations omitted).) The Superior Court further noted that

“[n]owhere in Appellant’s PCRA petition, nor his response to the Pa.R.Crim.P. 907

notice, nor his brief, does Appellant specify the name of a specific expert willing to

support his defense theories whom trial counsel knew or should have known about

and utilized, let alone the specialty of said expert beyond the generic category of

‘medical expert.’” (Id. at 272-73.)

Respondent asserts that Petitioner has procedurally defaulted Ground One

because it “could have been raised on collateral appeal” and Petitioner “fail[ed] to

fairly present the state appellate court with the opportunity to address this claim.”

(Doc. No. 17 at 23.) The Court agrees. Pennsylvania Rule of Appellate Procedure

2119(a) requires that all arguments presented on appeal be “followed by such

discussion and citation of authorities as are deemed pertinent.” Pa. R. App. P.

2119(a). Failure to cite legal authorities or to develop argument results in waiver.

See, e.g., Maitland v. Gilmore, No. 3:16-cv-2044, 2019 WL 4194201, at *6 (M.D.

Pa. Sept. 4, 2019) (citing cases). Courts within the Third Circuit have concluded

that this “waiver rule” is an independent and adequate state court ground precluding

federal habeas review. See id.; see also Rodriguez v. Giroux, No. CV 15-6182, 2017

WL 10821396, at *17 (E.D. Pa. Feb. 17, 2017), Report and Recommendation

adopted, 2019 WL 587314 (E.D. Pa. Feb. 12, 2019). Thus, Ground One is

procedurally defaulted.

Moreover, Respondent is correct that Petitioner did not raise Grounds Three

and Four in his appeal of the denial of his PCRA petition. Thus, these claims are

unexhausted. Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004) (explaining

that, for habeas claims in Pennsylvania to be exhausted, the claims must have been

presented to both the PCRA court and the Superior Court). Petitioner can no longer

appeal the dismissal of these claims to the Superior Court of Pennsylvania because

appeals must “be filed within 30 days after the entry of the order from which the

appeal is taken.” Pa. R. App. P. 903(a). “Rule 903(a), codified as a state court

appellate rule, fulfills the adequate and independent state ground doctrine because it

is implemented regularly by the state courts as a prerequisite to obtaining appellate

review.” Novasak v. Mazurkiewicz, No. 93-2168, 1995 WL 430603, at *5 n.12 (E.D.

Pa. July 20, 1995); see also McDonald v. Lamas, No. 13-2957, 2016 WL 8710465,

at *4 (M.D. Pa. Nov. 18, 2016) (finding procedural default where petitioner failed

to file a timely appeal pursuant to Rule 903(a)). Thus, while Petitioner’s failure to

exhaust Grounds Three and Four is excused because he can no longer pursue a timely

appeal, see Slutzker v. Johnson, 393 F.3d 373, 381 (3d Cir. 2004), these claims are

procedurally defaulted.

Consequently, because Grounds One, Three, and Four are procedurally

defaulted, the Court can entertain the merits of Petitioner’s § 2254 petition only if

he demonstrates cause and prejudice or a fundamental miscarriage of justice.

Petitioner advances no compelling argument to establish that a fundamental

miscarriage of justice will occur if this Court does not consider his claims. See

Schlup, 513 U.S. at 326. Rather, Petitioner asserts that cause exists to overcome his

procedural default because attorney Mosser, who represented him on appeal from

the dismissal of his PCRA petition, rendered ineffective assistance by failing either

to raise these issues or fully develop them on appeal. (Doc. No. 1 at 6, 9.) The

Supreme Court has held that

[w]here, under state law, claims of ineffective assistance of trial counsel

must be raised in an initial-review collateral proceeding, a procedural

default will not bar a federal habeas court from hearing a substantial

claim of ineffective assistance at trial if, in the initial-review collateral

proceeding, there was no counsel or counsel in that proceeding was

ineffective.

Martinez v. Ryan, 566 U.S. 1, 18 (2012); see also Cox v. Horn, 757 F.3d 113, 119

(3d Cir. 2014). Here, however, because Petitioner alleges that appellate PCRA

counsel rendered ineffective assistance, his procedural default is not excusable under

the Martinez exception. See Norris v. Brooks, 794 F.3d 401, 404 (3d Cir. 2015)

(“[T]he Court stated that the [Martinez] exception applies only to attorney error in

initial-review collateral proceedings, not appeals from those proceedings.”); Cox,

757 F.3d at 119 (requiring a prisoner to show “the default was caused by ineffective

assistance of post-conviction counsel or the absence of counsel [] in the initial-

review collateral proceeding”); Garcia v. Pennsylvania, No. 3:14-CV-2214, 2018

WL 5981678, at *5 (M.D. Pa. Nov. 14, 2018) (citing Martinez, Norris, and Cox to

conclude same).

In his traverse, Petitioner asserts that PCRA counsel’s ineffectiveness

establishes cause and prejudice to overcome his procedural default of Grounds One,

Three, and Four. (Doc. No. 27.) For Martinez to apply, Petitioner must show that

his ineffective assistance of trial counsel claims have “some merit,” and that he had

ineffective counsel or no counsel at the initial-review stage of the state collateral

proceeding. See Workman v. Sup’t Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019).

Here, Petitioner’s state-appointed attorney withdrew pursuant to Finley and filed a

letter of no-merit. The Third Circuit has concluded that a Martinez inquiry “focuses

on whether counsel, not the prisoner, raised the ineffective assistance of counsel

claim at the initial review collateral proceeding.” Mack v. Sup’t Mahanoy SCI, 714

F. App’x 151, 153 (3d Cir. 2017). In Mack, the court also held that where a petitioner

fails to raise an ineffective assistance of counsel claim in responding to a letter of

no-merit, the claim may still be excused by Martinez if “PCRA counsel was

ineffective for filing a no-merit letter and not raising [the petitioner’s] ineffective

assistance claim.” Id. at 154. Therefore, if Petitioner’s PCRA counsel was

ineffective for not raising these claims of ineffective assistance of trial counsel in his

no-merit letter, and if Petitioner’s ineffective assistance of trial counsel claims are

“substantial,” or have “some merit,” then Martinez would apply to excuse

Petitioner’s default. See Workman, 915 F.3d at 937.

Upon review of the record, the Court concludes that PCRA counsel did raise

Petitioner’s claims of trial counsel’s ineffectiveness in his no-merit letter. (Doc. No.

17-3 at 26-43.) The PCRA court addressed them in its Notice of intent to dismiss

Petitioner’s PCRA petition as well as its Order denying his petition. (Id. at 59-66,

89-93.) Thus, Petitioner cannot rely upon the purported ineffectiveness of initial-

review PCRA counsel to excuse his procedural default. Rather, Petitioner

procedurally defaulted Grounds One, Three, and Four by failing to raise them on

appeal from the denial of his PCRA petition and, as noted above, he cannot reply

upon appellate PCRA counsel’s failure to raise such claims to overcome his default.

Although Grounds One, Three, and Four are procedurally defaulted,

Respondent also argues that they lack merit. (Doc. No. 17 at 17-19.) Accordingly,

the Court will address the merits of these grounds below.

2. Merits

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court

explained that there are two components to demonstrating a violation of the right to

effective assistance of counsel. First, the petitioner must show that counsel’s

performance was deficient. This requires showing that “counsel’s representation fell

below an objective standard of reasonableness.” See id. at 688; see also Williams v.

Taylor, 529 U.S. 362, 390-91 (2000). Second, under Strickland, the petitioner must

show that he was prejudiced by the deficient performance. “This requires showing

that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland, 466 U.S. at 687. To establish prejudice, the

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.” See id. at 694. The Strickland test is conjunctive and a habeas petitioner

must establish both the deficiency in the performance prong and the prejudice

prong. See Strickland, 466 U.S. at 687; Dooley v. Petsock, 816 F.2d 885, 889 (3d

Cir. 1987). As a result, if a petitioner fails on either prong, he loses. See Holladay

v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must

be satisfied in order to show a violation of the Sixth Amendment, the court need not

address the performance prong if the defendant cannot meet the prejudice prong, or

vice versa.”) (citation omitted); Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir.

1999) (“This court may address the performance and prejudice components in any

order, but need not address both if Mr. Foster fails to make a sufficient showing of

one.”).

The two-pronged test established in Strickland “qualifies as ‘clearly

established Federal law’” for purposes of the AEDPA. See Rainey v. Varner, 603

F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 391

(2000)). 3 Therefore, under § 2254(d)(1), the relevant inquiry in assessing

ineffectiveness claims that have been adjudicated on the merits is whether the state

court’s decision involved an unreasonable application of Strickland or are based on

an unreasonable determination of the facts. See Jacobs v. Horn, 395 F.3d 92, 107

n.9 (3d Cir. 2005). Moreover, Pennsylvania’s three-pronged test for ineffective

assistance claims, see Commonwealth v Pierce, 515 Pa. 153, 527 A.2d 973, 975-77

(Pa. 1987), is not contrary to Strickland, see Jacobs, 395 F.3d at 107 n.9.

a. Claim One—Failure to Retain Expert Witness

In his first ground for relief, Petitioner faults attorney Reiner for not procuring

an expert witness to testify “to the fact that the alleged victim’s injuries predated the

alleged incident in this case and supported the proposition that she sustained them

in [a] prior unrelated altercation.” (Doc. No. 1 at 5.) The PCRA court rejected this

claim in its Notice indicating its intent to dismiss Petitioner’s PCRA petition, stating:

3 The standard under Pennsylvania law for ineffective assistance of counsel is consistent with the

two-prong Strickland analysis. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000).

Defendant contends that all counsel were ineffective because

Attorney Gregory was granted permission from the Court to hire an

expert witness, but none of the attorneys hired one. The mere fact that

an expert witness was not obtained by Trial Counsel after receiving

permission from the Court to do so is not sufficient to establish Trial

Counsel’s ineffectiveness. Moreover, shortly after Attorney Gregory

received Court permission, he was removed as counsel of record at

Defendant’s request and new counsel was appointed. Defendant’s

defense at trial was that while he and the Victim had sex on the night in

question, it was consensual and just got out of hand or a bit rough.

Defendant does not indicate what kind of expert defense counsel should

have employed on his behalf, nor does he indicate how doing so would

have changed the outcome of his trial. Therefore, this claim fails to

meet the first and third prongs of the ineffectiveness standard.

(Doc. No. 17-3 at 61-62.) The Superior Court of Pennsylvania affirmed the

dismissal of Petitioner’s PCRA petition, noting, in a footnote, that Petitioner “did

not attempt to offer analysis or law demonstrating that the PCRA court was incorrect

in concluding that his underlying claim [regarding the failure to retain an expert]

lacked merit.” (Id. at 268.)

“There is a strong presumption that counsel’s attention to certain issues to the

exclusion of others reflects trial tactics rather than sheer neglect.” Harrington v.

Richter, 562 U.S. 86, 109 (2011). With respect to a claim that counsel failed to call

a certain witness, a petitioner “cannot meet his burden to show that counsel made

errors so serious that his representation fell below an objective standard of

reasonableness based on vague and conclusory allegations that some unspecified and

speculative testimony might have established his defense. Rather, he must set forth

facts to support his contention.” Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d

Cir. 1991). Here, Petitioner only speculates that an expert witness would have

testified that the victim sustained the injuries in a prior altercation. Thus, counsel’s

choice to forego calling an expert witness on this subject “is an appropriate tactical

decision that does not entitle [Petitioner] to habeas corpus relief.” Moyer v.

Ferguson, No. 1:17-cv-1379, 2019 WL 1988400, at *12 (M.D. Pa. May 6, 2019)

(citing Alexander v. Shannon, 163 F. App’x 167, 175 (3d Cir. 2006)). In his traverse,

Petitioner claims that trial counsel should have hired a forensic pathologist to testify

about the victim’s injuries. (Doc. No. 27 at 18.) Petitioner, however, again fails to

explain how such testimony would have changed the outcome of his trial. The Court

agrees with Respondent that Petitioner has not demonstrated that the state court’s

disposition of this claim was contrary to, or was an unreasonable application of,

United States Supreme Court precedent. Moreover, Petitioner has not demonstrated

that the state court’s determination of the facts was unreasonable. Thus, Ground

One will be denied.

b. Claim Three—Failure to Challenge Jurisdiction

In his third ground for relief, Petitioner alleges that attorney Reiner rendered

ineffective assistance by failing to challenge the trial court’s jurisdiction over his

criminal proceedings. (Doc. No. 1 at 8.) Petitioner contends that the trial court

lacked jurisdiction because Magistrate Nixon, who was the victim’s mother and a

witness for the prosecution, was the authority who determined that probable cause

existed to arrest Petitioner for the offense. (Id.)

The PCRA court addressed this claim in its Notice announcing its intention to

dismiss Petitioner’s PCRA petition, stating:

Much of Defendant’s PCRA complaints pertain to the fact that

MDJ Barbara Nixon is the Victim’s mother and Defendant’s

contentions that there was a conflict of interest as a result of that

relationship.

Defendant contends that:

At the preliminary hearing, Barbara Nixon was there, was seen

talking to an ADA, is a witness in this case, is the mother of the

accuser, and spoke with MDJ Haskell before, during and after

the filing of a warrant for Defendant’s arrest;

There was concealment of ex parte communication between

MDJ Haskell and MDJ Nixon in determining probable cause for

the warrant;

There was no neutral detached determination;

There was misconduct by DA Office, MDJ Nixon, MDJ Haskell,

and all attorneys that represented Defendant at trial court.

These are nothing more than bald assertions. Moreover, the issue

of Barbara Nixon’s involvement in this case was addressed

immediately prior to trial on September 3, 2013.

MDJ Nixon was the presiding issuing authority in Magisterial

District Court 19-1-05 in York City, and the incident in this case was

within this jurisdiction. However, MDJ Nixon, who may have been

retired by the time this incident occurred, did not preside over the

preliminary hearing; Senior Magisterial District Judge Robert Davis

presided over Defendant’s preliminary hearing. The warrant for

Defendant’s arrest was signed by MDJ Ronald Haskell, and there is no

indication that MDJ Nixon had anything to do with the issuance of that

arrest warrant (a copy of the Arrest Warrant is attached). The Police

Criminal Complaint and the Affidavit of Probable Cause both bear the

signature of MDJ Ronald Haskell, not MDJ Nixon.

Barbara Nixon is the Victim’s mother and was a fact witness for

the prosecution. As a result, it would have been appropriate and

necessary for Barbara Nixon to be seen talking with the Assistant

District Attorney involved with the case. Despite Defendant’s

contention to the contrary, there is nothing to indicate that Barbara

Nixon had any involvement in this case in her capacity as an MDJ, or

that there was any inappropriate conduct by her. Therefore,

Defendant’s contentions in this regard are without merit.

(Doc. No. 17-3 at 60-61 (internal citation omitted).)

Upon review of the record, the Court concludes that Ground Two lacks merit.

There was simply no plausible basis upon which attorney Reiner could argue that

the trial court lacked jurisdiction simply because MDJ Nixon was the victim’s

mother. Counsel “cannot be deemed ineffective for failing to raise a meritless

claim.” Werts, 228 F.3d at 203. Petitioner has not demonstrated that the state court’s

disposition of this claim was contrary to, or was an unreasonable application of,

United States Supreme Court precedent. Moreover, Petitioner has not demonstrated

that the state court’s determination of the facts was unreasonable. Accordingly,

Ground Three will be denied.

3. Claim Four—Failure to Request Jury Instructions

In his fourth and final claim for relief, Petitioner faults attorney Reiner for not

requesting that the trial court instruct the jury on the lesser included offense of

reckless endangerment as well as the defense of consent. (Doc. No. 1 at 10.)

According to Petitioner, counsel should have requested these instructions because

the victim’s “testimony as evidence to justify consent and reckless endangerment

instruction[s].” (Id.) The PCRA court addressed this claim in its Order denying

Petitioner’s PCRA petition, stating:

Defendant further claims that he had requested that all prior

counsel request a jury instruction on the lesser included offense of

reckless endangerment to the aggravated assault charge, and a consent

instruction on the rape charge. Defendant acknowledges, however, that

Trial Counsel did request the lesser included jury charges in the Judge’s

chambers, but he was informed by Trial Counsel that counsel’s request

was denied. Furthermore, at the conclusion of the Court’s instructions

to the jury, the Court, on the record, asked if either counsel had any

objection to the Court’s instructions and Defense Counsel had no

objection.

Also, while recklessly endangering another person is a lesser

included offense to aggravated assault, “a trial court is not obliged to

grant a request for an instruction on a lesser-included offense unless

there is support for such an instruction in the evidence.”

Commonwealth v. White, 490 Pa. 179, 182-183, 415 A[.]2d 399, 400

(1980). In this case, there was no evidence presented (and Defendant

has not cited to any) which would support an instruction for recklessly

endangering or dispute the elements of aggravated assault. Defendant

did not testify on his own behalf, and there were no witnesses presented

in his defense.

In regard to a jury instruction on consent, for the Court to give

such an instruction, there would have to have been some evidence of

consent presented at trial which would have put that defense before the

jury. As there was no evidence of consent presented at trial (and

Defendant has not cited to any), the Court properly declined to give the

instruction.

(Doc. No. 17-3 at 89-90 (first and third internal citations omitted).)

Upon review of the record, the Court concludes that Petitioner has not

demonstrated that the state court’s disposition of this claim was contrary to, or was

an unreasonable application of, United States Supreme Court precedent. Moreover,

Petitioner has not demonstrated that the state court’s determination of the facts was

unreasonable. While Petitioner’s defense at trial was that he and the victim engaged

in consensual intercourse (Doc. No. 17-3 at 61-62), Petitioner has not demonstrated

prejudice from counsel’s failure to request an instruction regarding the defense of

consent. When assessing prejudice, “a court ‘must consider the totality of the

evidence before the judge or jury.’” Ross v. Dist. Att’y of the Cty. of Allegheny, 672

F.3d 190, 210 (3d Cir. 2012) (citing Strickland, 466 U.S. at 695). While the victim

testified that she and Petitioner went upstairs with the intention of having sex (Doc.

No. 17-1 at 87-88), she explicitly testified on redirect that she did not agree to what

occurred in her bedroom and did not verbally agree to have sex with Petitioner that

night (id. at 94). Ample evidence of Petitioner’s guilt was presented to the jury, and

he has not met his burden of demonstrating that, but for counsel’s failure to request

a jury instruction regarding consent, the result of his trial would have been different.

See Albrecht v. Horn, 485 F.3d 103, 128-29 (3d Cir. 2007) (concluding that

petitioner did not suffer prejudice from counsel’s failure to request a limiting

instruction because of “ample if not overwhelming evidence of [his] guilt”).

The record also reflects that counsel was not ineffective for failing to again

request, at the close of evidence, an instruction regarding the lesser included offense

of reckless endangerment. Under Pennsylvania law, a person is guilty of reckless

endangerment if he “recklessly engages in conduct which places or may place

another person in danger of death or serious bodily injury.” 18 Pa. Cons. Stat. Ann.

§ 2705. A person acts in a reckless manner when he consciously disregards a

substantial and unjustifiable risk. 18 Pa. Cons. Stat. Ann. § 302(b)(3). 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. Cons. Stat.

Ann. § 2702(a)(1). Thus, the Commonwealth must prove that the defendant

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

might cause death or serious bodily harm.” Commonwealth v. Fierst, 423 Pa. Super.

232, 245, 620 A.2d 1196, 1203 (1993). In other words, “the offensive act must be

performed under circumstances which almost assure that injury or death will ensue.”

Commonwealth v. O’Hanlon, 539 Pa. 478, 482, 653 A.2d 616, 618 (1995).

Moreover, as the Superior Court of Pennsylvania has noted,

[o]nce the prosecution has proved that an individual caused or

attempted to cause serious bodily injury under circumstances

manifesting an extreme indifference to human life, it also has

established that the same person recklessly engaged in conduct that

placed or may have placed another person in danger of death or serious

bodily injury. Every element of reckless endangerment is subsumed in

the elements of aggravated assault.

Commonwealth v. Dobbs, 452 Pa. Super. 488, 493, 682 A.2d 388, 391 (1996),

superseded on other grounds by 42 Pa. Cons. Stat. Ann. § 9765.

Here, Petitioner has not demonstrated prejudice from counsel’s failure, after

the presentation of evidence, to request an instruction regarding the lesser included

offense of reckless endangerment. The Commonwealth presented ample evidence

that Petitioner “consciously disregarded an unjustified and extremely high risk that

his actions might cause death or serious bodily harm.” Fierst, 423 Pa. Super. at 245,

620 A.2d at 1203. Petitioner he has not met his burden of demonstrating that, but

for counsel’s failure to request a jury instruction regarding reckless endangerment,

the result of his trial would have been different. For these reasons, Petitioner’s fourth

and final ground for relief must be dismissed.

IV. MOTION FOR AN EVIDENTIARY HEARING

As noted above, Petitioner has filed a motion requesting that this Court

conduct an evidentiary hearing and a fact-developing procedure. (Doc. No. 18.) He

maintains that he “was denied a full and fair fact hearing on the 4th, 5th, 6th, and

14th amendment rights of the U.S. Constitution raised in [his] state post conviction

motion.” (Id. at 2.) According to Petitioner, he “repeated[ly] attempt[ed]” to request

an evidentiary hearing before the PCRA Court, but those requests were denied.” (Id.

at 3.)

Section 2254(e)(2) states:

(2) If the applicant has failed to develop the factual basis of a claim in

State court proceedings, the court shall not hold an evidentiary hearing

on the claim unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error,

no reasonable factfinder would have found the applicant guilty

of the underlying offense.

28 U.S.C. § 2254(e)(2). Upon consideration of the record, the Court concludes that

Petitioner has not made the requisite showing. Accordingly, his motion requesting

that the Court conduct an evidentiary hearing and a fact-developing procedure (Doc.

No. 18) will be denied.

V. 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 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). In

the instant matter, jurists of reason would not find the disposition of Petitioner’s

petition debatable. As such, no COA will issue.

VI. CONCLUSION

For the foregoing reasons, Petitioner’s petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and his motion requesting that the Court

conduct an evidentiary hearing and a fact-developing procedure (Doc. No. 18) will

be denied and a COA will not issue. An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Dated: March 23, 2020