Delmoral v. Garman

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ALEXI SANTO DELMORAL, No. 3:18-CV-00018

Petitioner, (Judge Brann)

v.

JOHN WETZEL, et al.,

Respondents.

MEMORANDUM OPINION1

APRIL 3, 2020

Petitioner Alexi Santo Delmoral (“Petitioner” or “Delmoral”) files the

instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,

accompanied by a memorandum, seeking relief from his judgment of sentence

entered in Court of Common Pleas of Dauphin County, Pennsylvania, criminal

cases CP-22-CR-0001140-2011 and CP-22-CR-00001141-2011, following

convictions for aggravated assault, reckless endangerment, and persons not to

possess firearms.2

1 This matter has been reassigned to the undersigned upon the death of the Honorable James

M. Munley.

2

The petition is ripe for disposition.3 For the reasons set forth below, the

petition will be denied.

I. STATE COURT BACKGROUND

The incidents underlying Delmoral’s convictions occurred at approximately

8:30 p.m. on January 10, 2010, on Zarker Street in the City of Harrisburg,

Pennsylvania, outside the shared home of Delmoral and Trina Bowman

(“Bowman”). The truncated version of events is that, following a verbal

altercation that began in their home and spilled out to the street, Delmoral violently

threw Bowman to the ground. He briefly left the scene and reentered the home.

Almost immediately, he returned to the scene with a gun and shot Bowman in the

leg. Bowman’s daughter, Scottisha Allen witnessed the events.4

The procedural history of the state court proceedings set forth below is

extracted from the Superior Court of Pennsylvania’s Opinion affirming the denial

of Delmoral’s second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 PA.C.S.A. §§ 9541-9546:

On or about January 11, 2011, Defendant Alexi Delmoral was arrested

and charged with aggravated assault, two counts of recklessly

endangering another person, possession of a small amount of

marijuana, possession of drug paraphernalia, attempted homicide, and

firearms not to be carried without a license. These offenses were

3 The Court initially directed the parties to address the timeliness of the petition. ECF Nos.

5, 7, 14. The Court entered a Memorandum and Order deeming the petition timely. ECF

Nos. 15, 16. Thereafter, Respondents filed a response and Petitioner filed his traverse. ECF

Nos. 18, 23, 24. Recently, the Court ordered supplemental briefing and expansion of the

record. ECF Nos. 27, 28, 31.

4 ECF No. 28-2; Commonwealth v. Delmoral, 53 A.3d 926 (Pa. Super. Ct. 2012).

docketed at 1140–CR–2011. On or about February 8, 2011, Defendant

was arrested and charged with two counts of illegal possession of a

firearm. This offense was docketed at 1141–CR–2011.

A jury trial was held on June 20th through 22nd, 2011. Defendant was

represented by Brian Platt, Esq., of the Dauphin County Public

Defender’s Office. Following a guilty verdict on aggravated assault and

recklessly endangering another person, Defendant was sentenced on

June 22, 2011. He was ordered to serve a sentence of imprisonment of

fourteen (14) to twenty-eight (28) years. [state court opinion footnote 1

citing 42 PA. C.S.A. §§ 9541-9546].

Attorney Platt filed a post-sentence motion for modification of

sentence/motion for new trial, which was denied by this Court.

Defendant appealed and his judgment of sentence was affirmed by the

Superior Court on July 17, 2012.5 [Defendant raised the following

issues on appeal: “The trial court erred in denying [his] motion to

prevent the district attorney from referring to Trina Bowman and her

daughter Scottisha [Allen] as victims, as such reference was overly

prejudicial to [him]”; “The trial court erred in denying the motions to

suppress [his] statement to an independent witness on the street

immediately after the complaining witness was shot where [his]

statement not to ask him any ‘f----ing questions’ was irrelevant and

where the prejudicial value of the evidence outweighed any probative

value”; “The trial court erred in allowing the district attorney to play

the entire jail recording to the jury as prejudicial value of the recording

in its entirety outweighed the probative value”; “The trial court erred in

denying [his] pretrial motion to bifurcate the trial, specifically the

charge of persons not to possess a firearm, where bifurcation would

have allowed the jury to decide its verdict without hearing otherwise

inadmissible testimony of [his] prior convictions”; “The trial court

erred in considering [his] offense as a second strike where [he] had a

juvenile adjudication in Florida for armed robbery, but where Florida

was more liberal in moving juvenile cases to the adult system”; and,

“The trial court erred when it denied [his] motion to modify the

sentence where the sentence was excessive and unreasonable.”]6 On

September 14, 2012, Defendant filed a PCRA petition. This Court

appointed Christopher Wilson, Esq., to represent Defendant in his

5 Id.

6 ECF No. 18, pp. 23-27.

PCRA claims. Attorney Wilson filed an amended PCRA petition

alleging that trial counsel was ineffective for failing to file a petition for

allowance of appeal to the Supreme Court. This Court granted

Defendant’s amended petition and granted him leave to file an appeal

to the Supreme Court. On June 12, 2013, the Supreme Court denied

Defendant’s petition for allowance of appeal.

On September 19, 2013, Defendant filed another PCRA petition, which

this Court denied because it was determined that Defendant’s claims

had been litigated or waived. A notice of appeal was filed, and this

Court appointed Shane Cope, Esq. to represent Defendant in his appeal.

On December 29, 2014, the Superior Court vacated this Court’s denial

of his second PCRA petition. Attorney Cope was appointed to represent

Defendant in his PCRA claim. An amended PCRA petition was filed

on July 23, 2015, and on August 11, 2015, Attorney Cope filed a second

amended PCRA petition. The amended petition alleged that trial

counsel was ineffective for; (1) failing to raise a sentencing issue

pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013) and (2)

failing to request a pre-sentence investigation (PSI).

The day before the November 5, 2015 PCRA hearing, counsel

withdrew the Alleyne sentencing issue, acknowledging that subsequent

case law had rendered such issue meritless. Therefore, all testimony

focused on the issue of Attorney Brian Platt’s alleged ineffectiveness

for opting to not pursue a PSI.7

The Superior Court affirmed the PCRA court’s denial of collateral relief on

January 27, 2017.8 Delmoral did not pursue relief in the Pennsylvania Supreme

Court.

On January 3, 2018, he filed the instant petition pursuant to 28 U.S.C. §

2254.

7 Commonwealth v. Delmoral, No. 969 MDA 2016, 2017 WL 384750, at *2–3 (Pa. Super.

Ct. Jan. 27, 2017).

8 Id

II. ISSUES PRESENTED FOR FEDERAL REVIEW

Delmoral presents the following issues for review:

I. Petitioner’s rights were violated by the court’s failure to provide

complete trial transcripts of a reasonable alternative.9

II. The evidence was insufficient to sustain one count of persons not

to possess a firearm.10

III. Trial counsel was ineffective in “(1) failing to challenge the

veracity of the facts contained in the affidavit of probable cause;

(2) failing to object to irrelevant evidence elicited by the

Commonwealth; (3) stipulating that Delmoral was subject to the

mandatory sentence for a second violent offense; and (4) failing

to request a presentence investigation report.”11

IV. Ineffective assistance of appellate counsel.12

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.13

Petitioner’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

9 ECF No. 1, p. 5; ECF No. 4, p. 4.

10 ECF No. 1, p. 7; ECF No. 4, p. 5.

11 ECF No. 1, p. 8; ECF No. 4, pp.8-19.

12 ECF No. 1, p. 10; ECF No. 4, p. 20.

13 Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973).

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

or treaties of the United States.

...

(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) 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....14

Section 2254 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.15 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.”16

This limitation places a high threshold on the courts. Typically, habeas relief will

only be granted to state prisoners in those instances where the conduct of state

proceedings resulted in a “fundamental defect which inherently results in a

complete miscarriage of justice” or was completely inconsistent with rudimentary

demands of fair procedure.17

14 28 U.S.C. § 2254.

15 Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d

Cir. 2014).

16 28 U.S.C. § 2254(a).

17 See, e.g., Reed v. Farley, 512 U.S. 339, 354 (1994).

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.”18 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.19 The habeas statute codifies this principle by requiring that a

petitioner exhaust the remedies available in the courts of the State, 28 U.S.C. §

2254(b)(1)(A), 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.20 This requires that the claim brought in federal

court be the substantial equivalent of that presented to the state courts.21 Mere

reliance of state and federal claims on the same constitutional provision does not

render the two claims substantially equivalent.22 Both the legal theory and the

18 28 U.S.C. § 2254(b)(1)(A); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

19 See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000); Picard v. Connor, 404 U.S. 270,

275–76 (1971).

20 O’Sullivan, 526 U.S. at 845 (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, 404 U.S. at 275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d

Cir. 1997).

21 Picard, 404 U.S. at 278; see also McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)

(holding that petitioner must present both “factual and legal substance” of claim to state

courts).

22 See Brown v. Cuyler, 669 F.2d 155 (3d Cir. 1982); Zicarelli v. Gray, 543 F.2d 466 (3d Cir.

1976).

facts on which a federal claim rests must have been presented to the state courts.23

Respondents argue that Delmoral’s claims, with the exception of his claim

that trial counsel was ineffective in failing to request a presentence investigative

report, are unexhausted in that he failed to raise them in either his direct appeal or

post-conviction proceedings. Delmoral counters that the claims are exhausted

because they are time barred and he does not have the right to raise them by any

available state procedure.24

“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.’ 28 U.S.C. § 2254(b). In such cases,

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

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).”25

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

23 See Picard, 404 U.S. at 277; Brown, 669 F.2d at 158–61.

24 ECF No. 23, pp. 2-5.

25 McCandless, 172 F.3d at 260.

procedural rule.26 “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.27 Alternatively, if a petitioner demonstrates

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

is actually innocent,”28 then a federal court can excuse the procedural default and

review the claim in order to prevent a fundamental miscarriage of justice.29 The

miscarriage of justice exception applies only in extraordinary cases, and actual

innocence means factual innocence, not legal insufficiency.30 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 reasonable

juror would have voted to find the petitioner guilty beyond a reasonable doubt.31

Delmoral 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

26 See Murray v. Carrier, 477 U.S. 478, 488 (1986).

27 See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

28 Murray, 477 U.S. at 496.

29 Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d

Cir. 2001).

30 Bousley v. United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496.

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

is actually innocent,”32 It therefore appears that Delmoral’s claims are

procedurally defaulted and federal review of all his claims, except the claim that

trial counsel was ineffective in failing to request a presentence investigative report,

is barred. However, our analysis does not end here. In an effort to overcome this

hurdle, Delmoral argues that the procedural default of these claims is excused

based on the exception carved out in Martinez v. Ryan, 566 U.S. 1 (2010).

1. Martinez v. Ryan Exception

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, it 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.”33 The claims contained in

grounds one, two and four do not concern trial counsel ineffectiveness. Hence,

Martinez is not available to alleviate the procedural default of those claims.34

Conversely, Delmoral’s contentions that the procedural default of his claims

that trial counsel failed to challenge the veracity of the facts contained in the

affidavit of probable cause, failed to object to irrelevant evidence, and erroneously

32 Murray, 477 U.S. at 496.

33 Id. at 9.

34 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) (stating

“[t]hese claims do not involve ineffective assistance of [trial] counsel. Martinez does not

apply.”).

stipulated that Delmoral was subject to a mandatory sentence for a second violent

offense, is directly attributable to PCRA counsel’s failure to include them in his

Amended PCRA petition, necessitate a Martinez analysis.35

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,” and that petitioner

had “no counsel” or “ineffective” counsel during the initial phase of the state

collateral review proceeding.36 Whether a claim is “substantial” under Martinez is

“analogous to the substantiality requirement for a certificate of appealability.”37

“Thus, the question for Martinez purposes, is merely whether ‘reasonable jurists

could debate’ that [a petitioner’s claim] has merit, or whether the claim is

‘adequate to deserve encouragement to proceed further.’”38 Significantly, a

substantial claim alone is not sufficient to excuse a petitioner’s procedural default.

A petitioner must also demonstrate 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 standard.39

35 ECF No. 4, pp. 10, 12, 14; ECF No. 31, pp. 5, 6, 8.

36 Martinez, 566 U.S. at 14; Workman v. Superintendent Albion SCI, 915 F.3d 928, 938 (3d

Cir. 2019).

37 Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014) (citing Martinez, 566 U.S. at 14).

38 Preston v. Sup’t Graterford, SCI, 902 F.3d 365, 377 (3d Cir. 2018) (quoting Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 483

(2000))).

39 See Workman, 915 F.3d at 937–38 (referencing Strickland v. Washington, 466 U.S. 668

(1984)); see also Preston, 902 F.3d at 376.

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.40 A lawyer’s performance falls below an objective

standard of reasonableness when “there is simply no rational basis to believe that

counsel’s failure to argue the ... issue on appeal was a strategic choice.”41

Each of Delmoral’s claims will be addressed seriatim.

a. Failure to Challenge the Affidavit of Probable Cause

Delmoral asserts trial counsel was ineffective in failing to challenge the

veracity of the facts contained in the affidavit of probable cause in support of the

warrant to search the property shared by Delmoral, Bowman, and Allen at 2041

Zarker Street. Delmoral correctly asserts that he is entitled to attack the averments

in the affidavit of probable cause and, if a search warrant is based upon an affidavit

containing deliberate or material misstatements, the search warrant is invalid.42 It

is his position that Detective O’Conner’s statement that the “[s]everity of this

ongoing investigation and the potention [sic] for evidence tampering,” was a

“deliberate or material, misstatement of facts upon which the search warrant was

40 Strickland, 466 U.S. at 688.

41 United States v. Mannino, 212 F.3d 835, 844 (3d Cir. 2000); Bey v. Superintendent Greene

SCI, 856 F.3d 230, 244 (3d Cir. 2017) (finding PCRA counsel ineffective where no

obvious strategic basis for failing to assert trial counsel’s ineffectiveness related to

defective jury instruction).

42 Id.; Commonwealth v. Miller, 513 Pa. 118, 518 A.2d 1187 (1986); Commonwealth v. Clark,

412 Pa. Super. 92, 602 A.2d 1323, 1325 (1992).

based” because by the time Detective O’Conner swore out the affidavit, Delmoral

had been arrested and Bowman had been hospitalized, leaving only Allen,

Bowman’s daughter, with access to the property.43 He believes that trial counsel’s

failure to challenge the affidavit squandered his opportunity to have the search

warrant deemed invalid in accordance with Commonwealth v. Brown, 836 A.2d.

989, 992 (Pa. Super. 2003).44

Delmoral fails to demonstrate that reasonable jurists would debate whether

trial counsel was ineffective by failing to challenge the veracity of the statement

made by Detective O’Conner. Initially, Brown is inapposite as it primarily

concerns the production of the identity of a confidential informant. Although it

contains the seminal caselaw governing the accuracy of material set forth in

affidavits of probable cause, it does not advance Delmoral’s argument. Further,

despite Delmoral’s contentions to the contrary, the record demonstrates that, when

Detective O’Conner authored the affidavit of probable cause, there existed

circumstances of severity attendant to an ongoing investigation and valid concerns

of evidence tampering.

Scottisha Allen (“Allen”), the victim’s daughter, testified at trial that she was

present at the scene and was questioned by a Harrisburg City Police Department

43 ECF No 4., pp. 8, 9; ECF No. pp. 6, 7.

44 ECF No. 4, p. 9.

police officer immediately following the incident.45 She testified that Delmoral

and Bowman began arguing inside the 2041 Zarker Street property. She and

Bowman left the house and attempted to get into Delmoral’s truck, which was

parked on the street. Delmoral approached the truck and violently slammed

Bowman to the ground, causing her head to twice hit the ground. Bowman

instructed Allen to call 911. Delmoral then left the immediate area and reentered

the 2041 Zarker Street property.46 Within seconds, he exited the property,

approached Bowman, said something to her, and then shot her with a gun.47 Allen

testified that she saw Delmoral holding the gun and that she recognized it because

he “never leaves the house without it.”48 Takiya Stripling, another witness to the

altercation, testified that Delmoral retrieved a handgun from the residence and shot

Bowman in the leg.49 When police arrived, neither Delmoral nor Bowman were at

the scene.50 Approximately thirty to forty-five minutes after police arrived,

Delmoral returned to the area and was immediately arrested.51 The gun was not

retrieved.52

45 ECF No. 28-1, pp. 56-61.

46 Id. at 58.

47 Id. at 58, 59.

48 Id. at 59.

49 Id. at 53.

50 Id. at 15.

51 Id. at 15-18.

52 Id. at 20-22.

Detective O’Conner, a Harrisburg City Police Department detective with the

investigations unit who was tapped to investigate the matter on the night of the

shooting, also testified at trial.53 Detective O’Conner learned through interviews

that Delmoral lived at 2041 Zarker Street with Bowman and Allen. Based on this

information he determined that he had sufficient probable cause to search the

Zarker Street property for, inter alia, “any and all ammunition, holsters, the gun,

firearms equipment, and paperwork showing ownership.”54 He directed officers to

secure the scene . Detective O’Conner then prepared an affidavit of probable cause

and warrant and presented it to a judicial office. The judicial officer determined

that that the warrant was supported by probable cause and approved the warrant.

During the course of the search, Detective O’Conner found the .32 caliber pistol

used in the shooting in a pink backpack in a closet of the second-floor bedroom of

the property.55

Given the above testimony, we cannot conclude that Detective O’Conner’s

statements in the affidavit of probable cause, concerning the severity of the

ongoing investigation and the preservation of evidence, constitute material

misstatements. As such, the underlying, otherwise defaulted claim, that counsel

was ineffective for challenging the veracity of that statement, is not substantial and

53 Id. at 26-32.

54 Id. at 27.

55 Id. at 27, 28.

does not warrant encouragement to proceed further. Martinez is therefore

unavailable to excuse the procedural default of this claim.

b. Failure to Object to Irrelevant Evidence

Delmoral also asserts that trial counsel was ineffective in failing to object to

a portion of the prosecutor’s direct examination of Bowman.56 Specifically, he

takes issue with Bowman’s testimony concerning her inability to work due to the

injuries she sustained to her leg.57 Bowman testified that, prior to the shooting, she

worked as a nursing assistant for over twenty years in the Harrisburg area.58 While

recovering, her employer placed her on Family and Medical Leave Act disability

for a ninety-day period. However, at the expiration of that time, her employer

terminated her because she was unable to resume her duties.59 Delmoral asserts

that the evidence elicited during this exchange was irrelevant in that it did not

establish any material facts. “This line of questioning was not about establishing

serious bodily injury, as an element of aggravated assault. Its only purpose was to

appeal to the jury’s sympathy and emotions, depriving Delmoral of a fair and

impartial determination of guilt, based on admissible evidence…. Considering the

totality of the evidence before the jury, allowing the prosecutor to appeal to their

sympathy and emotions would have affected all their factual findings. Trial

56 Id. at 10.

57 Id. at 10, 11.

58 ECF No. 28-1, p. 34.

59 Id.

counsel’s error would have had a pervasive effect on the inferences to be drawn

from the evidence, altering the entire evidentiary picture.”60 Delmoral argues that

there is a reasonable probability that but for counsel’s failure to object to this line

of questioning, the result of the proceeding would have been different.

This claim lacks “some merit.” The line of questioning is succinct and

benign. And, based upon the manner in which the state courts addressed similar

content, it is relevant. On direct appeal Delmoral argued that the trial court erred

in allowing the prosecution to play the full tape recording of a telephone

conversation between him and Bowman that occurred during his pretrial

detention.61 The recording includes Bowman describing the extent of her injuries

and spoke about of the economic and other effects thereof. The Superior Court

concluded that the trial court did not abuse its discretion in allowing the entirety of

the conversation because “the full context of the conversation was relevant to a

consequential fact—namely, [Delmoral’s] consciousness of guilt or lack thereof.”62

The court further opined that “while the emotional nature of Bowman’s comments

may have been harmful to [Delmoral] he has not demonstrated bias, ill will,

partiality, prejudice, manifest unreasonableness, or misapplication of the law in the

60 Id. at 11, 12.(citations omitted).

61 ECF No. 28-2, p. 5.

62 Id. at 6.

court’s assessment that the recording did involve a danger of unfair prejudice

outweighing its probative value.”63

Because the underlying claim of which Delmoral complains does not meet

the “some merit” threshold, Martinez is unavailable to excuse the procedural

default.

c. Stipulation Concerning Mandatory Sentence

Delmoral next asserts that “[t]rial counsel was ineffective for effectively

stipulating that Delmoral was subject to a mandatory sentence pursuant to 42

PA.C.S. § 9714(a)” for a second violent offense.64 He concedes that “trial counsel,

who represented [him] on appeal, did raise the claim as he said he would. [citation

omitted]. However, trial counsel did not investigate this matter before trial, which

may have prevented the need to ever appeal this issue. The relevant question is, if

trial counsel believed this was a meritorious issue to raise on appeal, because he

believed the juvenile conviction was not an ‘equivalent crime,” why didn’t he

require the Commonwealth to present evidence to support its trial position at trial.

This was clearly not part of a ‘sound trial strategy.’ Strickland v. Washington, at

2065.” 65 He argues that had trial counsel required the Commonwealth to meet its

burden of establishing that the Florida conviction met the “equivalent crime”

63 Id.

64 ECF No. 4, p. 12; ECF No. 31, pp. 8,9.

65 Id. at 13.

requirement, there is a reasonable probability that he would not have been

sentenced to the mandatory minimum of 10 to 20 years in prison.66

The issue initially arose during Delmoral’s sentencing hearing on June 22,

2011. At that time, the following exchange that took place:

THE COURT: All right, Mr. Baer?

MR. BAER: Yes, Your Honor, it sounds like the defendant is

requesting to be sentenced today.

THE COURT: All right.

MR. PLATT: That’s correct, Your Honor.

THE COURT: If you would like to come to the bar.

MR. PLATT: We would have to ask him a couple questions before we

do that.

THE COURT: Bring him to the bar and do that.

MR. BAER: Your Honor, this may take a moment for the following

reasons: In anticipation of sentencing, I was certain that

there was going to be a presentence investigation. We had

given notice previously to the defense that we were

looking to proceed under the mandatory sentencing

provisions of Title 42 Section 9714(a), and that it [is a]

second or subsequent offense.

We’re alleging that the defendant was convicted

previously in the state of Florida of a crime of violence.

We had actually previously disclosed to the defense – and

I have a copy with me now that I can provide – according

to the statute requires that I provide it to the defendant and

to defense counsel.

66 Id. at 14.

And what I have is from the Circuit Court of the Ninth

Judicial Circuit in – perhaps someone could assist me

with the pronunciation – Osceola –

THE COURT: That’s correct.

MR. BAER: -- County in the state of Florida. And it’s a 1993

conviction for robbery with a firearm. We have

maintained that it would qualify as a second or

subsequent offense for sentencing purposes.

THE COURT: Do you believe it’s not?

MR. BAER: I believe it is.

THE COURT: But I mean is that the reason you thought there would be a

presentence to confirm that or –

MR. BAER: Well, Mr. Platt has never outright disputed the authenticity

of that conviction. But at least we’ve had discussions

about whether that it was, in fact – whether, in fact, he had

this prior conviction in Florida or not.

THE COURT: Wouldn’t we rather be safe than sorry?

MR. BAER: I would leave it up to the defendant. I mean, really I think

it’s his call at this point. We have the certified copy of

the conviction. He obviously knows what he has been

previously convicted of.

The fact that he has now presented himself for sentencing

says to me that he is acknowledging that this is in fact a

true and accurate assertion that we’re making.

With this prior conviction and the conviction for which he

stands now, there is a 10-year mandatory sentence. I

believe this is – this constitutes the extent of his criminal

history at least as far as convictions go. I’m just leafing

through his –

THE COURT: While you’re doing that, Mr. Platt, that’s your

understanding of your client’s belief?

MR. PLATT: Well, actually he is disputing whether or not this is

conviction for purposes of second strike 10–year

mandatory—

THE COURT: Wouldn’t that necessitate a presentence investigation?

MR. PLATT: Well, I believe at this point he can waive his right to a

presentence investigation. It’s the Commonwealth’s

burden to prove that this is, in fact—that there is a 10 year

mandatory that applies in this case, That’s something they

have to prove to the Court. And he’s ready to proceed to

do that today. We’re just asking Your Honor to go forward

with it.

MR. BAER: Well, if that’s the case, what we’re presenting is a certified

copy of a conviction for robbery with a firearm. I’m not

sure how or what argument that can be made that that is

not a prior crime of violence. It’s a document under seal,

therefore self-authenticated.

If you Honor would need more before making this

decision to impose that mandatory sentence, the way that

I read 9714 is that if the defendant disputes the prior

conviction that the Court then schedules a hearing at which

time both sides would have the opportunity to present—

THE COURT: Wasn’t that my initial question to you? He’s disputing this

at this point. Is he – saying that’s not --

MR. PLATT: I believe so Your Honor. And you can reaffirm this if you

want, Mr. Delmoral, Are you disputing that this conviction

from Florida would be considered a second strike? If so,

the Court may—is probably going to schedule a second

hearing on the matter.

Or would you prefer to proceed with sentencing today? If

we do that—if we proceed with sentencing today, then you

would have to waive your right to a presentence

investigation and also waive your right to any objections

to this issue in the future.

THE DEFENDANT: I would like to proceed, sir,

THE COURT: Does that mean that you agree that that is ....

THE DEFENDANT: Yes.

THE COURT: ... you and that’s a prior crime of violence and there’s no

mistake about that?

THE DEFENDANT: Yes.

THE COURT: And you want to proceed today knowing that the minimum

sentence you’re going to receive is 10 years?

THE DEFENDANT: Yes, I understand.

THE COURT: Are you satisfied with that, Mr. Platt?

MR. PLATT: I am, Your Honor.

THE COURT: Are you satisfied, Mr. Baer?

MR. BAER: I am….67

The matter proceeded to immediate sentencing.

The issue of “[w]hether the trial court erred in considering [Delmoral’s]

offense as a second strike where [he] had a juvenile adjudication in Florida for

armed robbery but where Florida was more liberal in moving juvenile cases to the

67 ECF No. 18, pp. 50, 51.

adult system” was revisited during his direct appeal.68 As set forth below, the trial

court thoroughly addressed the issue in an October 3, 2011 Rule 1925 opinion:

Finally, Appellant claims that this Honorable Court erred in fashioning

the instant sentence based on an improper application of the Second

Strike rule, 42 PA.C.S.A. Section 9714(a), which required imposition

of a mandatory minimum sentence of ten (10) years in this case based

on his previous conviction of robbery when he was a juvenile in the

state of Florida some nineteen (19) years ago. We proceed to the merits

of Appellant’s argument as legality of sentence is an [sic] non-waivable

issue. Commonwealth v. Northrip, 945 A.2d 198 (Pa. Super. 2008).

Appellant’s argument goes that, had he committed that crime as a

juvenile here in Pennsylvania, as opposed to Florida, he may not have

been transferred to the adult system based on our jurisdiction’s more

stringent transfer requirements. If that had been the case, Appellant

argues, he would not now be subject to the Second Strike mandatory

minimum in this matter, such that our imposition of same would be

excessive and unreasonable. We must reject Appellant’s argument in

this regard because it is entirely based on supposition. We must

sentence on what was, rather than on what could have been.

The recidivist statute at issue provides, in pertinent part, as follows:

(a) Mandatory sentence

(1) Any person who is convicted in any court of this

Commonwealth of a crime of violence, shall, if at the time of the

commission of the current offense, the person had previously

been convicted of a crime of violence, be sentenced to a

minimum sentence of at least ten years of total confinement,

notwithstanding any other provision of this title or other statute

to the contrary.

(g) Definition. As used in this section, the term “crime of

violence” means.... robbery as defined in 18 PA.C.S.

3701(a)(l)(i),(ii),or (iii)....or an equivalent crime under the

laws of this Commonwealth in effect at the time of the

68 Id. at 20.

commission of that offense or an equivalent crime in

another jurisdiction.

42 PA.C.S.A. Section 9714 (emphasis added).

Further, “[t]he test to determine whether an out-of-state offense is an

equivalent of a Pennsylvania offense requires the sentencing court to

compare the elements of the crimes, the conduct prohibited by the

offenses, and the underlying public policy behind the two criminal

statutes.” Commonwealth v. Northrip, 945 A.2d 198, 208-09 (Pa.

Super. 2008), quoting Commonwealth v. Ward, 856 A.2d 1273, 1277

(Pa. Super. 2004). It should be noted that offenses do not have to be

“mirror” images of one another to be considered “substantially

equivalent” for purposes of implementation of the recidivist statute. Id.

The sentencing court should “look to the subject matter sought to be

protected by the statute” in making this determination. Id. quoting

Commonwealth v. Bolden, 532 A.2d 1172, 1176 (Pa. Super. 1987). “If

the sentencing court determines that the prior offense is equivalent to a

violent crime enumerated under a Pennsylvania statute, the defendant

will be subject to the mandatory minimum sentence of total

confinement.” Commonwealth v. Northrip, supra. at 209.

Further, as noted very recently by the Superior Court en banc, “[a]

court, in determining whether a foreign state’s statute is equivalent to a

Pennsylvania crime under the Pennsylvania Recidivist Statute, 42

PA.C.S. Section 9714, may want to discern whether the crime is malum

in se or malum prohibitum, or whether the crime is inchoate or specific.

If it is a specific crime, the court may look to the subject matter sought

to be protected by statute, for example, the protection of the person or

the protection of the property.” Commonwealth v. Greene, 25 A.3d 359

(Pa. Super. 2011), quoting Commonwealth v. Shaw, 744 A.2d 739, 743

(Pa. 2000).

Appellant was convicted of robbery in Florida when he was fourteen

(14) years of age. Robbery is considered a crime of violence in this

Commonwealth under 42 PA.C.S. Section 9714(g). Therefore, quite

simply, the question before us is whether the offense of robbery in

Florida is an “equivalent offense” to that of robbery in Pennsylvania. If

so, the mandatory ten-year minimum is applicable to this case under

our recidivist statute, and Appellant's contention to the contrary must

necessarily fail.

In this Commonwealth, “[a] person is guilty of robbery if, in the course

of committing a theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of

immediate serious bodily injury;

(iii) commits or threatens immediately to commit any felony of

the first or second degree;

(iv) inflicts bodily injury upon another or threatens another with

or intentionally puts him in fear of immediate bodily injury;

(v) physically takes or removes property from the person of

another by force however slight;

(vi) or takes or removes the money of a financial institution

without the permission of the financial institution by making a

demand of an employee of the financial institution orally or in

writing with the intent to deprive the financial institution thereof.

18 PA.C.S. Section 3701(a)(1).

In Florida, “[r]obbery means the taking of money or other property

which may be the subject of larceny from the person or custody of

another, with intent to permanently or temporarily deprive the person

or the owner of the money or other property, when in the court of the

taking there is the use of force, violence, assault or putting in fear.” Fla.

Stat.ch. 812.13(1). The essence of both crimes is a theft which is

achieved through violence, or the threat thereof, and the subject matter

sought to be protected by both is protection of the person and his

property. We cannot conceive of how these two offenses could be

considered anything other than “equivalent,” and thus, we did not err in

fashioning Appellant’s sentence.69

69 Com. of Pennsylvania v Delmoral, No. 1140 CR 2011, 2011 WL 10135869 (Pa.Com. Pl.

Oct. 03, 2011)

The Superior Court affirmed in an unpublished memorandum finding that

Delmoral’s argument failed for two related reasons.70 The Superior Court first

pointed out that his bald statement “that Florida ‘was much more liberal in moving

juvenile cases to the adult system…than Pennsylvania,’ at or near the time of his

Florida case,” had “no developed analysis demonstrating that his perfunctory

assessment of Florida’s policy, as compared to that of Pennsylvania, is correct.”71

And his second argument, that he “would likely not have been convicted as an

adult” in Pennsylvania was rejected as speculative and undeveloped in that he

failed to analyze the Florida facts and/or apply those facts to the Pennsylvania law

prevailing at the relevant time.72

It is evident from the above that the underlying, otherwise defaulted, claim

of ineffective assistance of trial counsel lacks some merit. As such, Martinez does

not excuse the procedural default. Federal review of the claim is barred.

B. Merits Analysis

Delmoral’s claim that counsel was ineffective for failing to request a

presentence investigative report was adjudicated on the merits during his post-

conviction proceedings. Under the AEDPA, federal courts reviewing a state

prisoner’s application for a writ of habeas corpus may not grant relief “with respect

70 ECF No. 28-2.

71 Id. at p. 9.

72 Id. at 9, 10.

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 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.”73

“[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,”74 “[t]his is a difficult to meet and

highly deferential standard . . . which demands that state-court decisions be given

the benefit of the doubt.”75 The burden is on Delmoral to prove entitlement to the

writ.76

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.”77 “[A] state court decision reflects an ‘unreasonable application

73 28 U.S.C. § 2254(d).

74 Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotations and citations omitted),

75 Cullen, 563 U.S. at 181(internal quotation marks and citation omitted).

76 Id.

77 Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

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 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.”78 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.79

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).

Delmoral argues that the state court opinion resulted in a decision that was

contrary to clearly established federal law in that “[t]he Pennsylvania Courts have

78 Mathias v. Superintendent Frackville, SCI, 876 F.3d 462, 476 (3d Cir. 2017).

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

added a prong to the two-part test set forth by the Supreme Court” by requiring that

an underlying claim have arguable merit.80

The PCRA court set forth the following standards of review in considering

the ineffective assistance of counsel claim:

The law presumes that counsel was effective. Commonwealth v.

Montalvo, 114 A.3d 401, 410 (Pa. 2015). Thus, it is the petitioner’s

burden to prove the contrary. Commonwealth v. Koehler, 614 Pa. 159,

36 A.3d 121, 132 (2012). To prove an ineffective assistance of counsel

claim, Defendant must show that (1) the claims have arguable merit;

(2) there was no reasonable basis for counsel’s action or inaction; and

(3) actual prejudice resulted from counsel’s deficient performance,

Commonwealth v. Baumhammers, 92 A.3d 708, 719 (Pa, 2014) (citing

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)). Because all three

factors must be demonstrated, the claim fails if any one of them is not

proved. Baumhammers, supra. Finally, the PCRA court’s credibility

determinations, when supported by the record, are binding on this

Court. Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259 (2011).81

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

80 ECF No. 4, pp. 17, 18.

81 Commonwealth v. Delmoral, No. 969 MDA 2016, 2017 WL 384750, at *4 (Pa. Super. Ct.

Jan. 27, 2017); ECF No. 18, p. 30.

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

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. 2052.82

82 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 state court in this matter, which includes an

assessment of the merits of the underlying claim, is not contrary to the Supreme

Court’s Strickland standard.83

Delmoral also argues that “the Pennsylvania courts have interpreted

Strickland as requiring a defendant [to] demonstrate that an underlying ‘claim ha[s]

arguable merit’ before ‘show[ing] that counsel’s performance was deficient.’

Strickland v. Washington, at 2064. Such an interpretation is an unreasonable

application of Strickland.”84 This argument is without merit. A petitioner

asserting ineffective assistance must identify the acts or omissions that are alleged

not to have been the result of reasoned professional judgment.85 The reviewing

court then must determine whether, in light of all the circumstances, the identified

acts or omissions were outside “the wide range of professionally competent

assistance.”86 It therefore follows that counsel cannot be ineffective for declining

to raise a meritless issue.87

Delmoral next argues that “the record establishes a contradiction between

counsel’s performance and his stated strategy” and given the testimony at the

83 See Werts v. Vaughn, 228 F.3d 178, 203, 204 (3d Cir. 2000).

84 ECF No. 4, p 18.

85 Strickland, 466 U.S. at 690.

86 Id.

87 Premo v. Moore, 562 U.S. 115, 124 (2011), citing Kimmelman v. Morrison, 477 U.S. 365,

382 (1986) and Richter, 562 U.S., at 109-110 (2011).

sentencing and PCRA hearing, “the State court decisions were also ‘based on an

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

State court proceeding.”88 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.’”89 “And,

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

latitude to reasonably determine that a defendant has not satisfied that standard.”90

The PCRA court summarized the PCRA hearing testimony as follows:

Attorney Platt testified that Defendant was sentenced pursuant to the

Second–Strike Law (42 PA.C.S. § 9714), and as a result was facing a

ten-year mandatory minimum, which was ultimately held up on appeal.

[Notes of Testimony, PCRA Hearing, November 5, 2015, pp. 10–11].

When asked if he informed Defendant whether Defendant had a right

to a presentence investigation, Attorney Platt answered yes. Attorney

Platt testified that it is his practice to inform his clients that a PSI is an

option, particularly where the sentence follows a conviction where a

significant state prison time could be a possibility. [N.T., 11–5–15, p.

13]. Specifically, Attorney Platt stated, “In this case, there wasn’t a

whole lot of discussion. [Defendant] made it pretty clear that he just

wanted to proceed to sentencing and get it over with.” [NT., 11–5–15,

pp. 13–14].

Attorney Platt acknowledged that he discussed with Defendant the

sentencing range that could have been imposed. “[T]he 10 to 20 year

sentence was the maximum sentence on that aggravated assault charge.

So on that charge. . .. he couldn’t have received more than 10 to 20

88 ECF No. 4, pp. 18. 19.

89 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.

465, 473 (2007)).

90 Id.

years. However, obviously, with the other counts he was charged with,

he was aware they could run consecutively to the 10 to 20,” [N.T., 11–

5–15, p. 14]. When asked if Defendant indicated if he were okay with

a possibility of consecutive sentences, Attorney Platt responded, “I

don't think he would ever be okay with time running consecutive, but

he didn't—I didn't have any indication that he didn't understand that that

was a possibility.” [N.T., 11–5–15, p, 14]. Attorney Platt further

testified that “[t]he possible maximum sentences weren't discussed

immediatety [sic] after his conviction. We had discussed that

throughout plea negotiations leading up to the trial what he could

possibly be facing.” [NT., 11–5–15, p. 19]. This Court asked Attorney

Piatt [sic], “[d]id you or did you not tell [Defendant] with a second

strike—I understand there is a legal concern as to whether it was a

strike, but was he aware of an interpretation of a second strike it was

mandatory for that one charge 10 to 20?” Attorney Platt responded

“yes.” [NT., 11–5–15, pp. 19–20].

Defendant also testified at the PCRA hearing. He indicated he would

not have moved forward had he known that he could have received a

sentence greater than 10 to 20 years, and that he would not have moved

forward without getting a PS1, [NT., 11–5–15, p, 18]. Defendant

claimed Attorney Platt did not discuss the possible range of sentences

with him. [N.T., 11–5–15, pp, 20–21].91

In footnote 2 of its opinion, the PCRA Court cited the exchange that took place at

the sentencing hearing, fully quoted supra.92 The PCRA court concluded that

“[t]he record reflects that Defendant waived his right to a PSI at sentencing and

understood that he would receive a minimum of 10 years of imprisonment. See n.

2, supra. At the PCRA hearing, Attorney Platt testified that Defendant was aware

that under a second strike there was a mandatory 10 to 20 years for aggravated

91 Commonwealth v. Delmoral, No. 969 MDA 2016, 2017 WL 384750, at *3–4 (Pa. Super.

Ct. Jan. 27, 2017).

92 Commonwealth v. Delmoral, 2017 WL 384750, at *3; ECF No. 18, pp. 50, 51.

assault; he had discussed this with Defendant leading up to trial, and testified that

Defendant was aware that the other counts could run consecutive to the 10 to 20

years. This Court, finding Attorney Platt’s testimony credible, concludes that he

was not ineffective in representing Defendant. Spotz, supra. The trial court

received all of the pertinent information prior to imposing sentence. Counsel was

not ineffective for failing to request a PSI, as counsel cannot be deemed ineffective

for failing to pursue a meritless claim, Commonwealth v. Loner, 836 A,2d 125, 132

(Pa. Super. 2003).”93

In reviewing the PCRA court’s disposition of this claim, the Superior Court

opined as follows:

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Scott

A. Evans, we conclude Appellant’s issue merits no relief. The PCRA

court opinions comprehensively discuss and properly dispose of the

question presented. (See PCRA Court Opinion, filed September 1,

2016, at 1; Opinion in Support of Denial of PCRA Relief, filed May 31,

2016, at 2–5) (finding: trial counsel testified Appellant was aware he

faced 10–year mandatory minimum sentence for aggravated assault

conviction as second strike offense under 42 PA.C.S.A. § 9714; counsel

and Appellant discussed potential mandatory minimum sentence prior

to trial; counsel stated Appellant was aware court could impose

consecutive sentences for Appellant’s other convictions; counsel

testified his practice is to inform clients about option of requesting pre-

sentence investigation (“PSI”), particularly where significant prison

time is possible; counsel said he informed Appellant that he could

request PSI, but Appellant “made it pretty clear that he just wanted to

proceed to sentencing and get it over with”; trial counsel’s testimony

was credible; sentencing transcript confirms Appellant’s waiver of PSI

was voluntary; sentencing transcript also makes clear Appellant

93 Commonwealth v. Delmoral, 2017 WL 384750, at *4.

understood he would receive mandatory minimum sentence of 10

years’ imprisonment; trial court had all pertinent information prior to

imposing sentence; Appellant’s ineffective assistance of counsel claim

lacks arguable merit). Accordingly, we affirm on the basis of the PCRA

court’s opinions.94

The above demonstrates that there is no merit to Delmoral’s argument that

the “the record establishes a contradiction between counsel’s performance and his

stated strategy.”95 Moreover, the state court found trial counsel’s testimony

concerning the manner in which he advised Delmoral throughout plea negotiations

and at the sentencing hearing to be credible. “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].’”96 In taking into consideration

counsel’s credited testimony at the PCRA hearing concerning his discussions

throughout plea negotiations and at the sentencing hearing, the sentencing hearing

exchange between the trial court judge, counsel and Delmoral, which exhibits a

clear waiver of the presentence investigation report, and the absence of any

evidence to the contrary, we conclude that the Superior Court’s reliance on the

PCRA court’s finding that Delmoral failed to demonstrate that counsel was

ineffective was not “an unreasonable determination of the facts in light of the

94 Commonwealth v. Delmoral, No. 969 MDA 2016, 2017 WL 384750, at *1 (Pa.

Super. Ct. Jan. 27, 2017).

95 ECF No. 4, p. 18.

96 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)).

evidence presented in the state court proceeding.”97 Nor, as discussed above, was

it contrary to, or an unreasonable application of Strickland.

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 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.98 “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.”99 Delmoral fails to demonstrate that a COA should issue. The

denial of a certificate of appealability does not prevent him from appealing the

order denying his petition so long as he seeks, and obtains, a certificate of

appealability from the Third Circuit.100

97 See § 2254(d)(2).

98 28 U.S.C. § 2253(c)(2).

99 Miller-El v. Cockrell, 537 U.S. 322 (2003).

100 See FED. R. APP. P. 22(b)(1).

V. CONCLUSION

For the reasons set forth above, the Court will deny the petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254.

A separate Order will issue.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge