Williams v. Delbalso

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TYRONE WILLIAMS, :

CIVIL ACTION NO. 3:18-1004

Petitioner :

(JUDGE MANNION)

v. :

SUPT. DELBALSO, :

Respondent :

MEMORANDUM1

Petitioner Tyrone Williams (“Williams”), files the instant amended

petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 (Doc.13),

seeking relief from the Judgment of Sentence entered on January 27, 2012,

in Court of Common Pleas of Dauphin County criminal case CP-22-CR-

4623, following convictions for first degree murder, criminal conspiracy, and

recklessly endangering another person (“REAP”). (Id. at 20).

For the reasons set forth below, the petition for writ of habeas corpus,

will be denied.

1 This matter has been reassigned due to the death of the Honorable

James M. Munley.

I. State Court Factual and Procedural Background

During Williams’ direct appeal proceedings, the Superior Court of

Pennsylvania adopted the trial court opinion “which fully and correctly set

forth the relevant facts of this case as follows”:

Brandon Granthon [(“Victim”)] was shot in the chest and killed on

May 5, 2009 at approximately 1:10 a.m. Officer Garrett Miller

(“Officer Miller”) of the Harrisburg Bureau of Police (“HBP”) was

dispatched to the corner of Mulberry and Crescent Streets in

Harrisburg City to investigate a report of shots fired. The area is

known for high crime and drug traffic. Officer Miller found [Victim]

lying on the sidewalk in front of the McFarland Building

apartments, on his back, with a gunshot wound to the chest.

[Officer] Miller stated that [Victim] was dressed in all black

including black gloves, and a .40 caliber handgun was on the

ground to the left of him. Officer Miller described the scene as

initially chaotic as several individuals were in the immediate area.

[Victim] was loaded into an ambulance for purposes of transport

to the hospital for treatment along with Officer Jeffery Cook

(“Officer Cook”) of the HBP.

While in the ambulance, the EMS personnel had to cut off

[Victim's] pants to administer medical treatment which caused a

bag to fall out of the pants to the floor. Officer Cook suspected

that the bag contained crack cocaine, so he gave it to Officer

Miller who subsequently provided it to the forensic officer. After

arriving at the hospital emergency room, the ER physician

pronounced [Victim] dead at 1:35 a.m.

The substance in the baggy found on [Victim's] body was tested

at the [Pennsylvania State Police (“PSP”) ] Crime Lab by forensic

scientist Nicole Blascovich (“Ms. Blascovich”). Ms. Blascovich

determined that the substance contained in the baggy found on

[Victim's] body was 8.2 grams of crack cocaine. She also tested

a substance suspected to be cocaine which had been obtained

by Officer Mark McNaughton (“Officer McNaughton”) of the HBP

- 2 -

when he conducted a search of [Victim's] apartment pursuant to

a warrant. Ms. Blascovich determined that the substance in the

second baggie was crack cocaine weighing 65/100ths of a gram.

Dr. Wayne Ross, a forensic pathologist for the Dauphin County

Coroner's Office performed an autopsy on the body of [Victim].

Upon examination of the body, he discovered [a] hole in [Victim's]

chest consistent with a gunshot wound. Upon further

examination, Dr. Ross determined that a gunshot went into

[Victim's] chest entering the 5th rib on the left side, broke the rib,

and went through the liver, heart and lungs. Dr. Ross stated that

he found a bullet in blood that was in the lung. Dr. Ross

concluded that, as there was no soot or residue on the outside

of [Victim's] hoodie, the wound was a “distant gunshot wound”

and the “path relative to his body was going front to back, left to

right, and upward.” Dr. Ross concluded within a reasonable

degree of medical certainty that the cause of [Victim's] death was

a gunshot wound to the chest and the manner of death was

homicide. Upon evaluation of the position in which [Victim] was

found and the path of the bullet within the body, it was Dr. Ross'

opinion that when [Victim] was shot he was pulling his body

backwards in some manner, lying on the ground or the shooter

was pulling backward and running.

On May 4, 2009, [Victim] called Preston Burgess (“Mr. Burgess”),

who is also known as “Pepsi,” and asked him [to] set up a deal

to purchase an ounce of crack cocaine. Mr. Burgess had known

[Victim] for several months as he had been [Mr.] Burgess' drug

dealer. [Mr.] Burgess contacted another drug dealer he knew, an

individual nicknamed “Duke,” to set up the sale for [Victim]. Duke

later arrived [at][Mr.] Burgess' house, parked outside in his truck

and [Victim] went out to consummate the drug deal. When

[Victim] reentered [Mr.] Burgess' house, he stated that he thought

that the drugs were “light,” meaning less than the ounce he had

agreed upon. To remedy the situation, [Mr.] Burgess called Duke

who agreed to come back to [Mr.] Burgess' house, later in the

evening, to return [Victim's] money in exchange for the drugs.

At the meeting time, [Victim] returned to [Mr.] Burgess' house.

- 3 -

Mr. Burgess described him as being dressed in all black including

his pants, shirt and gloves, and acting uncomfortable or skittish.

Duke did not show up when expected, so [Victim] left. Later,

when Duke arrived at [Mr.] Burgess' house, they arranged for

[Victim] and Duke to meet at Kiwi's Bar on 13th and Derry Streets

to make the exchange and [Mr.] Burgess gave [Victim's]

cellphone number to Duke so the two of them could handle the

situation themselves. When Duke was at Mr. Burgess' house the

second time that day, Appellant, [whom] [Mr.] Burgess, and later

police, knew to be called “Slim,” unexpectedly arrived first, a

minute or two before Duke. The police first learned that Appellant

was at [Mr.] Burgess' house on the night of the murder during Mr.

Burgess' testimony at the preliminary hearing for charges filed

against [Appellant's co-defendant,] Ronald Burton, who is also

known as “Duke.” Mr. Burgess had known Appellant from

previously buying drugs from him and, when [Appellant] would

sell to [Mr.] Burgess, he would come to [Mr.] Burgess' house in a

black SUV. Of note is that Appellant had been stopped by police

for a traffic violation, in a black Ford Expedition SUV, in May

2010.

Duke and [Appellant] left [Mr.] Burgess' house, on foot, and

walked toward the corner of Sylvan Terrace. Mr. Burgess

testified that after they left, his girlfriend returned home and they

immediately went to a store called the “All Nighter” for cigarettes.

While at the All Nighter, within approximately ten (10) minutes of

Appellant and Duke leaving, they heard several gunshots fired,

one after another. From a police photo array, Mr. Burgess

identified Ronald Burton as the person he knew as Duke.

On the night of the murder, two individuals, Greta McAllister (“Ms.

McAllister”) and Jeffery Lynch (“Mr. Lynch”), were in an alley

smoking crack cocaine between Hummel Avenue and Mulberry

Street. Both of them testified that they saw two individuals

dressed in black with hoods on[,] get out of a dark colored SUV

and walk quickly through the alley towards Mulberry Street. Mr.

Lynch did not see them carrying guns, but Ms. McAllister did. Mr.

Lynch stated he recognized one of the men as an individual

nicknamed “Philly” from whom he had previously bought

- 4 -

cocaine. Mr. Lynch testified that he heard the man he knew as

“Philly” say “hurry up” as the men crouched by a parked car and

a light pole at the end of the alley. [Mr.] Lynch then heard one of

the men say “there he go” at the same time he saw another man

walking on the opposite side of Mulberry Street. Mr. Lynch said

that once the man on the opposite side of Mulberry [Street] was

out of his sight, the two men in the alley where he was located

ran toward the man across the street. Both Ms. McAllister and

Mr. Lynch were headed in the other direction, still in the alley,

toward Hummel [Avenue], when shots rang out. Mr. Lynch stated

that at least 10 shots, of two different caliber bullets, were fired.

Ms. McAllister and Mr. Lynch testified that, after the shots were

fired, the men ran back down the alley, toward Hummel Avenue

and got back into the dark colored SUV. Later, while being

interviewed by Detective Christopher Krokos (“Det. Krokos”) of

the HBP, Mr. Lynch was able to identify “Philly” from police

photos as Ronald Burton.

At the murder scene, HBP forensic investigator Karen Lyda

(“Officer Lyda”) recovered four (4) spent .45 caliber shell casings

on the south side of Mulberry Street, grouped together near the

location where [Victim's] body was found. An additional grouping

of five (5) spent .45 caliber shell casings was found at the same

intersection, across Crescent Street. Officer Lyda also recovered

a live .40 caliber bullet and a .40 caliber shell casing. Other

evidence obtained at the scene included a mutilated bullet jacket,

a cellphone and a left sneaker. Officer Lyda later learned from

other investigating officers that a casing was jammed in the

recovered .40 caliber hand gun and there were 3 unfired

cartridges in the magazine.

During the trial, Corporal Mark Garrett (“Cpl. Garrett”) of the

[PSP], Bureau of Forensic Sciences processed the firearms

evidence submitted by the HBP and presented expert testimony

on firearm and tool mark examination. The HBP provided Cpl.

Garret with a Beretta semiautomatic .40 caliber pistol, a

magazine with three (3) undischarged Remington .40 caliber

cartridges, one (1) discharged mutilated bullet jacket, one (1)

discharged Remington .40 caliber Smith and Wesson cartridge

- 5 -

and five (5) discharged Winchester .45 automatic cartridge

cases. After examination and forensic testing of these items, Cpl.

Garrett concluded that the five (5) discharged .45 cartridges were

all discharged from the same gun, but were definitely not

discharged from the .40 caliber Beretta handgun found by

[Victim] at the crime scene.

On August 10, 2009, a 2000 gold Cadillac Deville was stopped

by police while Appellant was operating the vehicle. In

furtherance of the investigation, on August 13, 2009, Detective

Rodney Shoeman (“Det. Shoeman”) of the HBP was asked to

obtain and execute a search warrant for the vehicle operated by

Appellant. Det. Shoeman had been informed that Ronald Burton

had been seen in that particular vehicle. Lead investigator

Detective Ryan Neal (“Det. Neal”) had determined that Ronald

Burton was also known in the drug community as “Duke” and

“Philly” based on photo identification by [Mr.] Lynch and [Mr.]

Burgess.

During the search, plastic bags of clothing and toiletry items were

found in the trunk of the car along with a green plastic storage

tote. In the green storage tote, Detective Shoeman found

documents belonging to Ronald Burton. The documents which

were recovered were a 2008 W–2 income reporting form, a letter

and a PPL electric utility bill all in the name of Ronald Burton.

Det. Neal reviewed [Victim's] cellphone that had been recovered

at the scene of the murder and, in the address book, found a

number that he confirmed had belonged to Ronald Burton/Duke.

By way of search warrant, Det. Neal was able to obtain and

review the records for Duke's phone number for May 4 and May

5, 2009. From the records, Det. Neal reviewed the particular

cellphone numbers and call history that belonged to Duke/[Mr.]

Burton and [Mr.] Burgess/Pepsi. Upon review of the records for

the interactions between [Mr.] Burton, [Mr.] Burgess and [Victim]

on the night of the murder, Det. Neal determined that multiple

calls were made from [Mr.] Burgess' phone to Duke/[Mr.] Burton's

phone that evening, but they eventually ceased as [Mr.] Burgess

gave Duke/[Mr.] Burton [Victim's] phone number. During the

- 6 -

remainder of the night, all of the calls placed were between

[Victim] and Duke. The last phone call on Duke/[Mr.] Burton's

cellphone was at 1:09 a.m. on May 5th, when call activity ceased

until approximately 7:00 a.m.

Det. Neal also interviewed Appellant in connection with the

shooting of [Victim]. Between the first interview, which was

recorded by audio and second interview, which was not

recorded, he changed his story. Appellant initially said that he left

[Mr.] Burgess' house with [Mr.] Burton, dropped him off and

picked him up then spent several hours at the Hollywood casino.

His second version of events had him dropping off [Mr.] Burton

with another man named Roni, going back to his own house to

shower and smoke marijuana before picking up [Mr.] Burton and

going to the casino.

Detective Donald Heffner of the HBP assisted Det. Neal by

reviewing [Mr.] Burton/Duke's cellular phone historical data

records for May 4 and May 5, 2009. More particularly, he

reviewed the cell tower data to determine which cell towers were

utilized by Duke's cellphone within a 13.8 mile radius, during the

timeframe surrounding the murder. Det. Heffner analyzed the

data and mapped the cell tower utilization locations and

determined that all of the calls made from his phone, around 1:00

a.m. on May 5, 2009, hit cell towers within .5 miles to 2 miles of

the crime scene. Additionally, Trooper Greg Kohl (“Trooper

Kohl”) of the PSP reviewed the records of Appellant's “action

card,” a type of rewards card one may get for use at the

Hollywood Casino. The purpose of the card is to track an

individual's gaming history for reporting and promotional

purposes. The record which Trooper Kohl analyzed was dated

May 12, 2010. Trooper Kohl testified that upon review of

Appellant's records, unless he did not use his card during a

particular visit, the last three uses of Appellant's actions card took

place on May 23, 2009, April 18, 2009[,] and April 16, 2009.

(Trial Court Opinion, filed May 19, 2014, at 2–10) (internal

citations and footnotes omitted).

- 7 -

Commonwealth v. Williams, No. 1682 MDA 2012, 2014 WL 10803011, at

*1–4 (Pa. Super. Ct. Aug. 12, 2014).

Procedurally, on January 27, 2012, the jury convicted Williams of first-

degree murder, criminal conspiracy, and REAP. The trial court sentenced

him on April 23, 2012, to concurrent sentences of life imprisonment for his

first-degree murder conviction, twenty to forty years' imprisonment for his

criminal conspiracy conviction, and twelve to twenty-four months'

imprisonment for his REAP conviction. He filed timely post-sentence

motions, which the court denied on August 27, 2012. On September 24,

2012, he filed a notice of appeal raising the following issues:

Did the Commonwealth present sufficient evidence to find [him]

guilty of first degree murder, criminal conspiracy, and [REAP]

beyond a reasonable doubt?

Was the evidence sufficient to find [Williams] guilty of First

Degree Murder, criminal conspiracy, and REAP on the basis that

he and Ronald Burton, his codefendant, were accomplices?

Did the Court err, in rulings both pretrial and at trial, by failing to

suppress [Williams’] inculpatory recorded statement to the police

on the basis that the statement was taken at a time when [he]

was under the influence of a controlled substance and, therefore,

was unable to give a knowing and intelligent waiver of his right

to counsel under Miranda and/or give a knowing, voluntary, and

free statement to the police?

Did the Court err by refusing to suppress and/or exclude portions

of [Williams’] recorded statement which permitted the jury to hear

evidence of other crimes, wrongs, or acts when those portions of

- 8 -

his statement should have been excluded from the trial under Pa

Rules of evidence 403 and 404(b)…?

Id. at *5. The Superior Court affirmed the judgment of sentence on August

12, 2014.

On March 10, 2015, he filed a timely pro se PCRA petition. The PCRA

court appointed counsel and counsel filed a supplemental petition. Following

a hearing, the PCRA court dismissed the petition. Williams appealed to the

Superior Court raising the issue of whether trial counsel was ineffective as a

matter of law for his failure to call an alibi witness, Quanisha Williams.

Commonwealth v. Williams, No. 249 MDA 2016, 2016 WL 6901354, at *1, 2

(Pa. Super. Ct. Nov. 23, 2016). The Superior Court affirmed the PCRA court

on November 23, 2016. Id. On January 17, 2018, the Supreme Court of

Pennsylvania denied his petition for allowance of appeal. Commonwealth v.

Williams, 645 Pa. 178, 179 A.3d 7, 8 (2018).

II. Habeas Claim Presented for Review

Williams presents the following general claim for review: “Trial counsel

was ineffective for not presenting witnesses, arguments, and instructions in

support of a coherent and cogent strategy where self-defense, defense of

others, and imperfect self-defense represented Mr. Williams’s primary

- 9 -

defense at trial.” (Doc. 13, p. 22). In the subsection “Tyrone Williams’s trial”

more specific ineffectiveness claims are identified. “Trial counsel did not file

a notice of alibi, did not present an alibi witness at trial, did not have Mr.

Williams testify in his own defense, did not present Georgio Rochon, and he

requested a voluntary manslaughter instruction – which necessarily implied

either Burton or Mr. Williams had shot and killed Granthon based on sudden

provocation or imperfect self-defense. 18 PA.C.S. §2503. The voluntary

manslaughter request, moreover, undercut any sort of indirect alibi argument

trial counsel may have made at trial. The trial court denied the voluntary

manslaughter request.” (Doc. 13, p. 18).

III. Legal Standards of Review

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

mechanism for a prisoner to challenge the “fact or duration” of his

confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). 28 U.S.C.

§2254, provides, in pertinent part:

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

district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment

of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United

States.

...

- 10 -

(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....

28 U.S.C. §2254. 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.

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

402, 406 (3d Cir. 2014). A federal court may consider a habeas petition filed

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

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

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] an omission inconsistent with

- 11 -

the rudimentary demands of fair procedure.” Reed v. Farley, 512 U.S. 339,

348 (1994) (citations omitted).

IV. Discussion

A. Exhaustion and Procedural Default

Before considering the merits of Williams’ claims, the Court must

address Respondent’s contention that the claims are procedurally defaulted.

Absent unusual circumstances, a federal court should not entertain a

petition for writ of habeas corpus, unless the petitioner has first satisfied the

exhaustion requirement articulated in 28 U.S.C. §2254(b). Specifically,

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

has exhausted the remedies available in the courts of the State.” 28 U.S.C.

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

The exhaustion requirement is grounded on principles of comity to ensure

that state courts have the initial opportunity to review federal constitutional

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

Cir. 2000); Picard v. Connor, 404 U.S. 270, 275–76 (1971). 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

- 12 -

round of the state’s established appellate review process,” before bringing

them in federal court. 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). This requires that

the claim brought in federal court be the substantial equivalent of that

presented to the state courts. 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). Mere

reliance of state and federal claims on the same constitutional provision does

not render the two claims substantially equivalent. See Brown v. Cuyler, 669

F.2d 155 (3d Cir. 1982); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976). Both

the legal theory and the facts on which a federal claim rests must have been

presented to the state courts. See Picard, 404 U.S. at 277; Brown, 669 F.2d

at 158–61.

- 13 -

“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).” McCandless, 172 F.3d at 260.

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

point to some objective external factor which impeded his efforts to comply

with the state’s procedural rule. See Murray v. Carrier, 477 U.S. 478, 488

(1986). “Prejudice” will be satisfied only if he can demonstrate that the

outcome of the state proceeding was “unreliable or fundamentally unfair” as

a result of a violation of federal law. See Lockhart v. Fretwell, 506 U.S. 364,

366 (1993).

Alternatively, if a petitioner demonstrates that a “constitutional violation

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

Murray, 477 U.S. at 496, then a federal court can excuse the procedural

- 14 -

default and review the claim in order to prevent a fundamental miscarriage

of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank,

266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception

applies only in extraordinary cases, and actual innocence means factual

innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614,

623 (1998); Murray, 477 U.S. at 496. A petitioner establishes actual

innocence by asserting “new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial,” showing that no reasonable juror

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

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

Williams concedes that his ineffective assistance of counsel claims

were not presented to the state courts and that they are procedurally

defaulted. (Doc. 13, p. 11). However, he seeks to excuse the default based

on Martinez v. Ryan, 566 U.S. 1 (2010), arguing that ”[i]nitial review PCRA

counsel’s failure to raise these substantial trial counsel ineffectiveness

claims was objectively unreasonable under Strickland…” (Doc. 13, p. 19).

B. Martinez Procedural Default Exception

Martinez recognized a narrow exception to the general rule that attorney

errors in collateral proceedings do not establish cause to excuse a

- 15 -

procedural default. Specifically, Martinez holds that “[i]nadequate assistance

of counsel at initial-review collateral proceedings may establish cause for a

prisoner’s procedural default of a claim of ineffective assistance at trial.” Id.

at 9. To successfully invoke the Martinez exception, a petitioner must satisfy

two factors: that the underlying, otherwise defaulted, claim of ineffective

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

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

the initial phase of the state collateral review proceeding. Id. at 17; see also

Glenn, 743 F.3d at 410.

A petitioner demonstrates that the underlying ineffective assistance of

trial counsel claim has “some” merit by “show[ing] that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Workman v.

Superintendent Albion SCI, 915 F.3d 928, 937-38 (3d Cir. 2019); see also

Martinez, 566 U.S. at 13-14. A petitioner demonstrates that post-conviction

counsel’s ineffectiveness caused the procedural default by showing that

post-conviction counsel’s performance was deficient under the first prong of

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

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

- 16 -

915 F.3d at 937–38. Satisfaction of the first Strickland prong requires a

petitioner to demonstrate that “counsel’s representation fell below an

objective standard of reasonableness,” with reasonableness being judged

under professional norms prevailing at the time counsel rendered

assistance. Strickland, 466 U.S. at 688.

1. Failure to Call Witnesses

Williams argues that PCRA counsel was ineffective in failing to

present the claim that trial counsel was ineffective for failing to pursue

an alibi defense based on Williams’ statement to Detective Neal that

he was with Burton and another man named “Roni” at the time of the

shooting. Detective Neal testified at trial that Williams made two

statements concerning the shooting of Granthon:

Det. Neal…interviewed [Williams] in connection with the

shooting of Granthon. Between the first interview, which was

recorded by audio and second interview, which was not

recorded, he changed his story. [Williams] initially said that he

left Burgess' house with Burton, dropped him off and picked him

up then spent several hours at the Hollywood casino. His second

version of events had him dropping off Burton with another man

named Roni, going back to his own house to shower and smoke

marijuana before picking up Burton and going to the casino. (N.T.

at 278–281).

Commonwealth v. Williams, 2014 WL 10803011, at *13.

- 17 -

He also argues that counsel was ineffective in failing to present

Georgio Rochon in support of his theory that Granthon presumably fired first.

(Doc 13, p. 4). He asserts that “trial counsel knew about Georgio Rochon

because he gave a statement hours after the shooting on May 5, 2009 – and

the Commonwealth disclosed this statement to trial counsel. His statement

mimicked his trial testimony at Burton’s testimony, i.e., he heard two

gunshots from a smaller caliber firearm and then saw a gunman fleeing who

fired four gunshots from a larger caliber firearm. More importantly, based on

the physical evidence, Rochon’s sequencing of events strongly suggests

Granthon fired one or two shots before Burton or Mr. Williams returned fire.”

(Id.) (emphasis in original).

In the Superior Court’s PCRA opinion addressing Williams’ claim that

trial counsel was ineffective in failing to call another witness, Quanisha

Williams, it was noted that “[t]o prove counsel had been ineffective for failing

to call a witness, the PCRA petitioner must show that: (1) the witness existed;

(2) the witness was available; (3) counsel knew of, or should have known of

the existence of the witness; (4) the witness was willing to testify for the

defense; and (5) the absence of the testimony was so prejudicial to petitioner

to have denied him or her a fair trial. Com. v. Clark, 961 A.2d 80, 90 (Pa.

2008) (citation omitted).” Com. v. Williams, 2016 WL 6901354, at *2. In

- 18 -

applying Pennsylvania’s failure to call a witness standard to Williams’ claims,

it is clear that he fails to meet his burden. He fails to demonstrate that Roni

existed, that he was available, and that he was willing to testify. He further

fails to demonstrate that the absence of Roni’s testimony was so prejudicial

that it denied him a fair trial.

With regard to Rochon, assuming trial counsel was aware that Rochon

existed and had knowledge of his statement, there is no evidence that

Rochon was available or willing to testify at the time of Williams’ trial.

Although Rochon testified at the Burton trial, that trial took place in January

2011. Williams’ trial commenced a full year later in January 2012. There

simply is no evidence that Rochon was available or willing to testify at

Williams’ trial. Because the underlying failure to call witnesses claims lack

“some” merit, he fails to satisfy his burden under Martinez. Federal review of

whether trial counsel was ineffective in failing to call either witness Roni or

witness Rochon is barred.

2. Failure to Call Williams to Testify

Williams contends that trial counsel was ineffective for failing to call

him to testify that he was somewhere else when the shooting occurred. (Doc.

13, pp. 4, 18, 30, 53).

- 19 -

It is well-established that “the accused has the ultimate authority to

make certain fundamental decisions regarding the case, [including] as to

whether to ... testify in his or her own behalf.” Jones v. Barnes, 463 U.S. 745,

751 (1983); see also Rock v. Arkansas, 483 U.S. 44, 49-56 (1987). In

Commonwealth v. Miller, 987 A.2d 638 (Pa. 2009), the Pennsylvania

Supreme Court opined: “Claims alleging ineffectiveness of counsel premised

on allegations that trial counsel’s actions interfered with an accused’s right

to testify require a defendant to prove either that counsel interfered with his

right to testify, or that counsel gave specific advice so unreasonable as to

vitiate a knowing and intelligent decision to testify on his own behalf. Id. at

660 (citations and quotation marks omitted). “The decision of whether or not

to testify on one’s own behalf is ultimately to be made by the defendant after

full consultation with counsel. In order to sustain a claim that counsel was

ineffective for failing to call the defendant to the stand, he must demonstrate

either that counsel interfered with his right to testify, or that counsel gave

specific advice so unreasonable as to vitiate a knowing and intelligent

decision to testify on his own behalf.” Commonwealth v. Uderra, 706 A.2d

334, 340 (Pa. 1998).

Williams states, on several occasions, that trial counsel was ineffective

for failing to call him to testify that he was somewhere else when the shooting

- 20 -

occurred. However, these statements are conclusory and unsupported by

any facts setting forth exchanges between Williams and trial counsel. He fails

to provide evidence of interactions or incidents during which trial counsel

interfered with his right to testify or identify specific unreasonable advice

given by trial counsel. Because Williams fails to prove either that trial counsel

interfered with his right to testify, or gave specific advice so unreasonable as

to vitiate a knowing and intelligent decision to testify on his own behalf, we

are compelled to conclude that the underlying claim lacks some merit. As

such, Williams cannot avail himself of the Martinez exception to overcome

the procedural bar of this claim.

3. Jury Instructions

Williams next contends that trial counsel was ineffective in failing to

request, or advocate for, certain jury instructions and that PCRA counsel was

ineffective for failing to pursue the jury instructions claims in the initial

collateral proceedings. This argument heavily relies on evidence and

testimony elicited at the trial of codefendant Burton and the Superior Court’s

opinion vacating Burton’s murder conviction.

By way of background, Burton’s trial resulted in a January 28, 2011,

judgment of sentence in which the trial court imposed a sentence of life in

prison without the possibility of parole for first-degree murder, and attendant

- 21 -

concurrent sentences for conspiracy, REAP, and weapons convictions.

(Doc. 13-2, p. 1). In an unpublished Non-Precedential Superior Court of

Pennsylvania decision entered on January 20, 2012 (the “Burton Opinion”),

in considering Burton’s direct appeal, the Superior Court vacated his

judgment of sentence and remanded for resentencing and a new trial. See

also, Commonwealth v. Burton, 43 A.3d 524 (Pa. Super. Ct. 2012) (Table).

Williams attaches the unpublished opinion to his amended petition. (Doc. 13-

2, pp. 1-26).

On remand, the Commonwealth elected not to proceed on the

homicide charge. Commonwealth v. Burton, No. 1873 MDA 2016, 2017 WL

3172598, at *1 (Pa. Super. Ct. July 26, 2017). On September 29, 2016, after

a number of procedural missteps, the trial court resentenced Burton to an

aggregate term of incarceration of not less than twenty-two and one-half nor

more than forty-five years on the conspiracy, REAP and weapons

convictions. Id. at *2.

Williams argues as follows:

The witnesses and evidence in Burton’s and Mr. Williams’s trials

were virtually identical, outside of the evidence in Mr. Williams’s

trial regarding his custodial statements, his August 10, 2009

arrest in an SUV linked to Burton, and his casino card. Likewise,

neither Burton nor Mr. Williams testified. Thus, if the Superior

Court said Burton was entitled to self-defense, defense of others,

and voluntary manslaughter instructions, this holding should

- 22 -

have prompted trial counsel and PCRA counsel to litigate these

issues either at trial or during Mr. Williams’s initial-review PCRA

proceedings. Remarkably, though, both attorneys spectacularly

failed to even mention the Superior Court’s Burton opinion and

why the reasoning in that opinion applied to the facts, witnesses,

and evidence in Mr. Williams’s case. PCRA counsel either did

not read the Burton opinion or read the opinion and simply did

not make the connection between the two cases. Regardless if it

is the former or later [sic], PCRA counsel’s decision not to rely

on the facts, reasoning, and law articulated in the Burton opinion

constitutes deficient performance under Strickland.

(Doc. 13, p. 52).

With regard to the self-defense instruction, the Superior Court

considered Burton’s argument at trial that “the killing was justified in

that he acted in self-defense” in the context of whether there was

sufficient evidence to support the first-degree murder conviction.2

(Doc. 13-2, p. 7). The Superior Court opined as follows:

When the defendant raises a justification defense, the

Commonwealth must disprove the defendant’s claim beyond a

reasonable doubt. Commonwealth v. Rivera, 603 Pa. 340, 355-

56, 983 A.2d 1211, 1221 (2009), cert. denied, 130 S.Ct. 3282

(2010). In general, use of force is justified where the actor

believes it is immediately necessary to protect himself under the

unlawful use of force by another person. 18 Pa.C.S.A. §505(a).

2 Williams’ representation that the Superior Court concluded that

Burton was entitled to a self-defense instruction misconstrues the court’s

decision. The Superior Court did not find that Burton was entitled to a self-

defense instruction. Rather, the court considered the defense in the context

of whether there existed sufficient evidence to support the first-degree

murder conviction.

- 23 -

An actor is not justified in using deadly force unless he believes

it is necessary to protect himself from death, serious bodily injury,

kidnapping or sexual assault. 18 Pa.C.S.A. §505(b)(2). An actor

may not use deadly force if he provoked the assailant’s use of

force against him. 18 Pa.C.S.A. §505(b)(2)(i). Further, an actor

is not justified in using deadly force where he knows he can

safely retreat. 18 Pa.C.S.A. §505(b)(2)(ii).

Burton argues that the Commonwealth failed to prove beyond a

reasonable doubt that Burton might have provoked Granthon’s

use of force or that Burton could have safely retreated. As

described by the trial court, the record reflects that Burton and

Granthon engaged in a drug transaction, after which Granthon

accused Burton of shorting him on the amount of crack he

received. Burton told Burgess, who arranged the transaction,

that he would give Granthon his money back. Before leaving

Burgess’ house to meet Granthon, ostensibly to give him his

money back, Burton was visibly angry. N.T., 1/24-27/11, at 48.

Likewise, Granthon was angry because he believed Burton

shorted him. Id. at 46. Shortly after he left Burgess’ house, Lynch

saw Burton with one other individual walking quickly down an

alley. Id. at 141-42, 149. Burton and his companion ducked, one

behind a car and the other behind a telephone pole, and one of

them said “there he goes.” Id. at 142. Lynch saw a third man

walking by, and Burton and his companion eventually emerged

from their hiding places and ran after the third man. Id. at 142-

43. Another witness testified that both men were armed. Id. at

227-28. Approximately twenty seconds later, shots rang out. Id.

at 143. Shortly after the shooting stopped, Lynch saw Burton and

his companion running. Id. at 147. They got into a car and drove

away. Id.

Lynch, an ex-Marine familiar with firearms, believed he heard two

different caliber weapons fired. Id. at 155, 161, 171. Lynch

believed he heard more than five shots and that at least three or

four were from a heavier caliber weapon than the others. Id. at

161. Another witness who heard the shooting from his home

testified that he heard two shots that were “just like a pop-pop”

followed by four louder shots that “were more of a bang-bang.”

- 24 -

Id. at 341. An investigating officer testified that a semi-automatic

.40 caliber handgun and one spent .40 caliber casing were found

near Granthon’s body. Id. at 104, 114, 116. A second casing was

jammed in the gun. Id. at 117. Police also found five spent .45

caliber casings. Id. at 111. Granthon was killed by a .45 caliber

round. Id. at 113.

The record, read in a light most favorable to the Commonwealth,

reflects that Burton was angry at Granthon and the Burton and

his companion armed themselves and were stealthy in their

pursuit of Granthon prior to the shooting. We recognize, as

Burton argues in his brief, that Granthon apparently had the

smaller caliber weapon and that a witness heard a smaller caliber

weapon fire first. Nonetheless, the law of justification does not

necessarily hinge upon who fired first. A defendant is not justified

in using force in self-defense if he was at fault in provoking the

force used against him. 18 Pa.C.S.A. §505(b)(2)(i). The instant

record, read in a light most favorable to the Commonwealth as

verdict winner, contains evidence from which the jury could find

that Burton and his companion, openly carrying firearms and

running after Granthon from behind, provoked Granthon’s

gunfire. Moreover, the witness who heard the gunfire from home

testified that he heard two shots, put down his Play Station

controller, went to his window, and heard four louder shots. Id. at

340. Given the apparent lapse in time between the two volleys of

shots, the jury could reasonably find that Burton had an

opportunity to retreat but did not. Police found the expended .45

caliber casings approximately 20 feet away from Granthon’s

body, and from that the jury could infer that Burton was close

enough to see that Granthon’s gun was jammed. Id. at 120.

Viewing the record in a light most favorable to the

Commonwealth, we conclude that the Commonwealth produced

sufficient evidence to disprove Burton’s justification defense

beyond a reasonable doubt.

- 25 -

(Doc. 13-2, pp. 7-10). The witness who testified to the lapse in time between

the two separate volleys of shots was Georgio Rochon. Rochon’s testimony

is summarized by the Superior Court as follows:

Georgio Rochon [(‘Rochon’)] was called as a witness for the

defense. On the night of May 5, 2009, Rochon stated that he was

living at 1230 Mulberry Street, and was home playing video

games at one o’clock in the morning. Rochon heard two

gunshots, followed by four louder ones, and ran to the window to

see what was happening. He then moved over to look out a

screen door and saw a man carrying a silver handgun running

from the Mulberry Street Bridge towards an alley. Rochon state

that the man was about 5’7”, stocky, and was a light skinned

black male. Rochon testified that the man he saw was not

[Burton] who was too tall, heavy, and dark to be the person he

saw on the night of May 5, 2009. However, Rochon admitted that

he was shaken up during his questioning by police, and that he

had only been able to view the individual from across the street.

(Id. at 3).

As concerns the propriety of a defense of others instruction, the Burton

Court reasoned as follows:

Considered in a light most favorable to Burton, the record admits

of the possibility that Granthon fired a .40 caliber weapon at

Burton and/or his companion before the perpetrator returned fire

with a .45 caliber weapon.

Though there is no evidence of a dispute between Burton’s

companion (presumably Slim) and Granthon, as there was

between Burton and Granthon, it is quite possible that Granthon,

upon observing two armed men approaching him, opened fire on

one or both of them. No witness observed the gunfire exchange.

Viewing the record in a light most favorable to Burton, we can

discern no valid basis for charging the jury on self-defense but

- 26 -

not defense of others, as the trial court did. We conclude that the

lack of a defense of others instruction was error.

(Id. at 16).

Next, in finding that the record could support a voluntary manslaughter

conviction, the Superior Court relied on the following:

The .40 caliber gun found near Granthon’s body had jammed.

Burton, therefore could have subjectively believed his life was in

danger even though the objective facts established that

Granthon’s weapon was jammed and posed no immediate

danger to Burton. Further, one witness testified that a short

period of time passed between the opening shots from the

smaller weapon and the subsequent shots from the larger

weapon. The jury might have concluded that Burton’s belief in

the need to use deadly force in self-defense became

unreasonable during that period of time. [n. 7 Even viewing the

record in a light most favorable to Burton, we believe this issue

presents a very close question. Nonetheless, the jury was forced

to make findings of fact based on the varied testimony of

numerous witnesses, and we conclude that the trial court erred

in declining to charge the jury on voluntary manslaughter where

a guilty verdict on that offense was one of many possible

outcomes.] “Under Section 2503(b) a homicide is reduced from

murder to voluntary manslaughter if the defendant subjectively

believed circumstances justifying the killing existed, but objective

reality negates that existence. Logically, the defendant’s belief,

sincere though unreasonable, negates malice.” Commonwealth

v. Carter, 502 Pa. 433, 442, 466 A.2d 1328, 1332 (1983). The

trial court’s charge to the jury essentially permitted the jury to

equate unreasonable belief justification with the malice

necessary to sustain a murder conviction. The trial court

therefore provided the jury with an inaccurate statement of the

law.

***

The facts of the record and the trial court’s erroneous jury charge

leave open the possibility that the jury rejected Burton’s

- 27 -

justification defense because if found that Burton unreasonably

believed that he was justified in killing Granthon. If the jury so

found, Burton should have been convicted of voluntary

manslaughter rather than first-degree murder. This is a

significant error of law, and given the many possible

interpretations of the facts of record, we cannot conclude beyond

a reasonable doubt that the error did not contribute to the verdict.

This error requires a remand for a new trial.

(Id. at 20, 21).

Williams argues that “if the Superior Court said Burton was entitled to

self-defense, defense of others, and voluntary manslaughter instructions,

this holding should have prompted trial counsel and PCRA counsel to litigate

these issues either at trial or during Mr. Williams’s initial-review PCRA

proceedings. Remarkably though, both attorneys spectacularly failed to even

mention the Superior Court’s Burton opinion and why the reasoning in that

opinion applied to the facts witnesses, and evidence in Mr. Williams’s case.”

(Doc. 13, p. 52). This argument lacks merit.

As noted in the Burton Opinion, “[a] defendant is entitled to a jury

instruction when the evidence produced at trial, viewed in a light most

favorable to the defendant, would support the instruction. Commonwealth v.

Robinson, 554 Pa. 293, 310-11, 721 A.2d 344, 353 (1998), cert. denied 528

U.S. 1082 (2000). The Superior Court’s opinion leaves no doubt that

Rochon’s testimony concerning the sequential order of the caliber of

- 28 -

weapons fired constituted crucial evidence warranting jury instructions on

self-defense, imperfect self-defense, and defense of others. Rochon is the

only witness to testify to the order in which the shots were fired. While Lynch

testified at Burton’s trial that he heard two different caliber weapons fired,

and that at least three or four were fired from the heavier caliber weapon, his

testimony is devoid of facts concerning chronology. It is Rochon’s testimony,

coupled with testimony concerning the dispute between Burton and

Granthon, that supported inferences concerning the order of the discharge

of weapons, lapse of time between various caliber of shots fired, Burton’s

ability to retreat, whether Burton was returning fire, the subjective belief of

Burton, and the reasonableness or unreasonableness of that belief. (Doc.

13-2, pp. 9-11, 15, 16, 21, 20). Rochon, however, did not testify at Williams’

trial. Williams does not point to any testimony concerning the chronology of

the shots fired or any evidence presented during the trial that would have

supported instructions on self-defense or defense of others. And we can

discern none.

As concerns a voluntary manslaughter charge, counsel requested

such an instruction. The following exchange that took place at sidebar during

Williams’ trial:

- 29 -

THE COURT: We’re at sidebar and counsel has asked for a

charge on voluntary manslaughter. Both regular voluntary

manslaughter and mistaken belief voluntary manslaughter. The

Commonwealth is objecting.

During the trial of this case there was no evidence of any type of

provocation, no evidence of any type of killing in the heat of

passion, so there is no basis to charge voluntary manslaughter.

As far as mistaken belief, there’s no evidence of any judgment

call that was made whether or not to kill the victim in a mistaken

belief. So that’s not present in the facts either. So I’m not going

to charge on mistaken belief voluntary manslaughter. So I’m

going to charge on first, third, and nothing else at this point

unless you show me some authority.

MR. RENTSCHLER: Okay. Then I would lodge my objection to

the nonreading or non-instruction on that. Okay.

(Doc. 13, p. 43). He argues that counsel was ineffective in failing to offer the

Superior Court’s Burton opinion in response to the court’s request for

authority for such an instruction. However, it is clear from a reading of that

opinion that there was evidence in the Burton record, specifically, the Rochon

chronology testimony and the testimony of the dispute between Burton and

Granthon, that supported such an instruction. Conversely, Williams fails to

point to evidence adduced at his trial that would have supported a self-

defense instruction.

Based on the foregoing, we find that the underlying otherwise defaulted

claim of trial counsel’s failure to request and advocate for jury instructions on

- 30 -

self-defense, defense of others, and voluntary manslaughter, lacks some

merit. Williams therefore fails to meet his burden under Martinez. The claims

concerning jury instructions are therefore procedurally defaulted.

V. Conclusion

For the foregoing reasons, Williams’ petition for a writ of habeas corpus

pursuant to 28 U.S.C. §2241 is denied.

VI. Certificate of Merit

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). Williams fails to demonstrate that

a COA should issue.

- 31 -

The denial of a certificate of appealability does not prevent Williams

from appealing the Order denying his petition so long as he seeks, and

obtains, a certificate of appealability from the Third Circuit Court of Appeals.

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

A separate Order will issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATED: August 31, 2020

18-1004-01

- 32 -