# Weathers v. Kauffman

> District Court, M.D. Pennsylvania · January 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10409691

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409691

## How later opinions describe it (automated extraction)

- finding Foreman’s after- discovered evidence did not entitle him to relief when, inter alia, Foreman “failed to show any nexus between his case and Detective Simon’s alleged misconduct in an incident, which occurred more than two years after [Foreman’s] conviction”
- finding that “[e]ven if his impeachment would ‘destroy and obliterate’ a witness, it is still impeachment” and “a new trial could not be granted . . . on that basis alone”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RUSSELL WEATHERS, :
Petitioner :
: No. 1:20-cv-1098
v. :
: (Judge Rambo)
KEVIN KAUFFMAN, et al., :
Respondents :

MEMORANDUM

On June 30, 2020, pro se Petitioner Russell Weathers (“Petitioner”), who is
presently incarcerated at the State Correctional Institution in Huntingdon,
Pennsylvania (“SCI Huntingdon”), initiated the above-captioned action by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)
Petitioner filed a memorandum of law in support of his § 2254 petition on November
3, 2020. (Doc. No. 12.) Respondents filed their response on November 23, 2020.
(Doc. No. 14.) Petitioner filed a traverse on December 14, 2020. (Doc. No. 16.)
Accordingly, Petitioner’s § 2254 petition is ripe for disposition.
I. BACKGROUND
A. Procedural History
On February 11, 2015, following a jury trial in the Court of Common Pleas
for Dauphin County, Pennsylvania, Petitioner was found guilty of two counts of
aggravated assault and one count of simple assault. (Doc. No. 14-1 at 3.) The
Superior Court of Pennsylvania set forth the background of the case as follows:
We set forth the following pertinent factual and procedural history of
this case. In 2013, [Petitioner] was charged with two counts of
aggravated assault and one count of simple assault, arising from
[Petitioner’s] August 1, 2013 physical attack on his girlfriend, Abigail
Shaw.

Shaw and [Petitioner] had become involved in a romantic
relationship beginning in August 2012. As the relationship
progressed, around November 2012, the two moved in together
at [a] South 2nd Street apartment along with [] Shaw’s three
children.

Shaw testified at trial [as] to her version of the relationship with
[Petitioner] and the events of August 1, 2013. [] Shaw described
her relationship with [Petitioner] as initially good until the end
of November 2012, when she encountered her first bout of
violence with him.

Trial Court Opinion, 11/23/2015, at 3-4 (citations omitted). Shaw
testified that [Petitioner continued to abuse her regularly and, by April
2013, “the assaults became daily occurrences.” Id. at 5.

The incident that gave rise to the charges in this matter occurred in the
early morning hours of August 1, 2013. [] Shaw had returned from her
classes for the day where she found [Petitioner] listening to music on
his iPad. She stated that around 7:00 p.m. he had gotten emotional
while listening to music that he used to enjoy with his deceased mother
so, he stormed out of the house saying he was going to buy cigarettes.

Later, around 9:00 p.m., [] Shaw took her children to the grocery store
but when she returned, she realized that she had locked herself out of
the apartment. She placed a note on the front door stating [that] she
was locked out and attempted to find a place to stay in the meantime.
After being unsuccessful at finding a friend who was home, Shaw
returned to the apartment to wait in [her] car for [Petitioner] to return.
She later awoke to a cab pulling in behind her parked car with
[Petitioner] in the front passenger seat. Shaw explained that she knew
it was [Petitioner] because they used cabs regularly and, since
[Petitioner] and the cab driver were friends, he would ride in the
passenger seat. [] Shaw approached the passenger door saying she had
been locked out when [Petitioner’]s arm came out of the open window
and, as he said “bitch, you’re playing me,” he smacked her head off the
front hood of the vehicle. [Petitioner] then got out of the car, grabbed
Shaw by the neck and slammed her to the ground while her 8 year old
son was watching. As she was on her back, he smacked her head
against the street and punched her in the face while repeatedly calling
her a bitch. [] Shaw remembers [Petitioner] leaving in the cab and then
driving [herself] to Harrisburg Hospital.

On that same night, Mark Cicak [] was returning home from his
employment from UPS in Harrisburg. He had worked the night shift[,]
which usually ended between 2:00 a.m. and 4:00 a.m. While driving in
the far left lane on South 2nd Street around 3:00 a.m., [] Cicak saw a
couple on the sidewalk to his left against a parked car, who he thought
were in an intimate embrace until the man threw the woman to the
ground and began assaulting her. [] Cicak immediately called 911. He
then circled the nearby blocks so he could driver past on Second Street
again. He reported that the male was wearing a white T-shirt, jeans and
a black hat. When [] Cicak arrived back on Second Street, he saw the
same pair but now the assault was occurring in the street with the male
punching and kicking the female. At all times, Cicak was on the
telephone with 911 describing the events he was witnessing. He passed
them and looped around a third time when he saw the assault stop and
the male jump into the passenger side of a cab and leave. [] Cicak tried
to follow the cab straight on Second Street to obtain a license plate
number; however, he was unsuccessful. He then circled back a third
time to ascertain the condition of the female but, when he arrived at the
area where the assault took place, she was gone. After one more loop
to see if she was walking along Second Street, he encountered the police
at the scene of the assault. [] Cicak stopped to speak with the police to
relay what he had witnessed.

Id. at 6-7 (citation omitted).

Once Shaw arrived at the hospital, she received medical attention for
her injuries. It was determined that Shaw’s nose was fractured in three
places. Id. at 8. At the hospital, Shaw spoke to police and identified
[Petitioner] as her attacker. Id. at 9. However, in the months that
followed, Shaw, indecisive as to whether or not to continue or end the
relationship, stayed in contact with [Petitioner] and eventually recanted
her identification of [Petitioner] as her attacker. Id. at 12-13.
Subsequently, Shaw cut off contact with [Petitioner]. Id. at 13.

At trial, Shaw identified [Petitioner] as the man who attacked her.
Additionally, Cicak testified that shortly after the incident, police
contacted him to discuss the assault he had witnessed. Id. at 7-8. Cicak
met with police and identified [Petitioner] from a photo array as the
man he saw attacking a woman on Second Street. Id.

Appellant testified on his own behalf to present his version of
events. At the time of the August 1, 201[3] incident, [Petitioner]
was working for a painting contractor. He testified that on the
night beginning July 31, 201[3] and leading into the morning of
August 1, 201[3], he was working with an individual named
Mike to finish painting apartment units at hallways at the Camp
Hill Plaza Apartments. [Petitioner] said that they were up against
a deadline so the two decided to stay late and finish the painting.

[Petitioner] had seen [] Shaw earlier in the day when she came to
the job site asking to trade in the rental car they had been driving
for a different one. He left work for a time to travel with Shaw
to change rental vehicles. [Petitioner] stated that after the cars
were traded he called his co-worker[, Anthony Moore,] to pick
him up and bring him back to the work site. From work he went
back to Mike’s apartment in downtown Harrisburg for a break
then returned to the job site to finish painting until approximately
2:00 a.m. [Petitioner] then spent the night at Mike’s place.

(Doc. No. 14-11 at 1-2.) On March 20, 2015, the trial court sentenced Petitioner to
serve a minimum of 108 months and a maximum of 240 months’ incarceration.
(Doc. No. 14-1 at 3.) Petitioner filed a post-trial motion to exclude evidence of a
911 call from 2012 as well as other incidents of abuse Shaw allegedly suffered at the
hands of Petitioner. (Doc. No. 14-3 at 3.) That motion was denied by the trial court.
(Id.)
Petitioner subsequently appealed to the Superior Court of Pennsylvania,
arguing that: (1) the trial court erred in denying his post-trial motion and (2) the

evidence was insufficient to convict him of aggravated assault. (Id. at 3-4.) On
August 22, 2016, the Superior Court affirmed Petitioner’s judgment of sentence.
(Doc. No. 14-5 at 1.) On February 22, 2017, the Supreme Court of Pennsylvania

denied Petitioner’s petition for allowance of appeal. Commonwealth v. Weathers,
678 MAL 2016 (Pa.).
On February 28, 2018, Petitioner filed a pro se Post Conviction Relief Act
(“PCRA”) petition in the Court of Common Pleas for Dauphin County. (Doc. No.

14-6.) Petitioner noted that he did not want a lawyer to represent him. (Id. at 3.)
The PCRA court conducted a Grazier1 hearing and concluded that Petitioner had
made a knowing, intelligent, and voluntary waiver of his right to counsel during

PCRA proceedings. (Doc. No. 14-8 at 121.) Petitioner filed an amended PCRA
petition on June 13, 2018. (Id. at 122.) In his PCRA petition, Petitioner raised the
following claims for relief: (1) trial counsel was ineffective for failing to subpoena
alibi witnesses Gene the Harrisburg cab driver and Anthony Moore; (2) counsel was

ineffective and “failed to challenge the District Attorney of committing fraud on the
Court by allowing fabricated statements and testimonies of the Commonwealth
witnesses and contradicting statements”; (3) the District Attorney’s Office

1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
intimidated witnesses; and (4) trial counsel failed to “present the prison conversation
of Ms. Shaw being bullied by the District Attorney’s Office.” (Id.) In his Amended

PCRA petition, Petitioner asserted: (1) he was denied a fair trial because Shaw
declared that he had not caused her injury or damage to the apartment; (2) Shaw
repeated those statements in her testimony during Petitioner’s preliminary hearing;

(3) Petitioner “found ex parte hearings”; and (4) “inappropriate comments by the
Commonwealth.” (Id.) On August 29, 2018, the PCRA court issued a memorandum
order and a notice that it intended to dismiss Petitioner’s PCRA petition without a
hearing. (Doc. No. 14-11 at 3.) Petitioner responded to the notice, and the PCRA

court dismissed his petition on October 9, 2018. (Id.)
Petitioner timely appealed to the Superior Court, arguing that he was entitled
to relief based upon: (1) after-discovered evidence of Shaw’s 2017 conviction for

false reporting; (2) the discovery of ex parte communications between the
Commonwealth, magisterial district judge, trial court, and Shaw; (3) the PCRA
court’s two denials of his requests for discovery; and (4) ineffective assistance of
trial counsel for failing to call witnesses. (Id.) The Superior Court affirmed the

dismissal of Petitioner’s PCRA petition on July 19, 2019. (Doc. No. 14-11.) On
March 11, 2020, the Supreme Court of Pennsylvania denied Petitioner’s petition for
allowance of appeal. Commonwealth v. Weathers, 549 MAL 2019 (Pa.). This Court

received Petitioner’s § 2254 petition on June 30, 2020. (Doc. No. 1.)
B. Habeas Claims Presented
Petitioner raises the following claims for relief in his § 2254 petition:

1. Newly-discovered evidence;

2. After-discovered evidence;

3. Crimen falsi violation;

4. Ex parte communications and ex parte hearing violations;

5. Discovery rights violation;

6. Ineffective assistance of counsel;

7. Misapplication of law; and

8. Illegality of sentence.

(Doc. No. 1 at 5-14.)2

II. STANDARD OF REVIEW
Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who
were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran, 247
F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414, 146
(1998)). The exercise of restraint by a federal court in reviewing and granting habeas

2 In an Order dated August 4, 2020, the Court indicated that Petitioner’s § 2254 petition appeared
to be untimely. (Doc. No. 9.) In a show cause Order dated November 4, 2020, the Court directed
Respondents to file a response to Petitioner’s § 2254 petition and address, inter alia, Petitioner’s
assertion that he was entitled to equitable tolling of the statute of limitations. (Doc. No. 13.) In
their response, Respondents concede that Petitioner’s § 2254 petition is timely. (Doc. No. 14 at
2.) The Court, therefore, declines to address the timeliness of Petitioner’s § 2254 petition and will
instead consider whether his claims for relief are exhausted and, if so, whether he is entitled to
relief.
relief is appropriate due to considerations of comity and federalism. See Engle v.
Isaac, 456 U.S. 107, 128 (1982). “The States possess primary authority for defining

and enforcing the criminal law. In criminal trials they also hold the initial
responsibility for vindicating constitutional rights. Federal intrusions into state
criminal trials frustrate both the States’ sovereign power and their good-faith

attempts to honor constitutional law.” Id. States also have a recognized interest in
the finality of convictions that have survived direct review within the state court
system. See Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).
A district court may entertain an application for a writ of habeas corpus filed

by a person in state custody “only on the ground that he is in custody in violation of
the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). If a claim
presented in a § 2254 petition has been adjudicated on the merits in state court

proceedings, habeas relief cannot be granted unless:
the adjudication of the claim – (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established [f]ederal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.

Id. § 2254(d).

For claims of ineffective assistance of counsel raised in a habeas petition, the
Court must consider the two components to demonstrating a violation of the right to
effective assistance of counsel as set forth by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). First, the petitioner must show that counsel’s
performance was deficient. This requires showing that “counsel’s representation fell

below an objective standard of reasonableness.” See id. at 688; see also Williams v.
Taylor, 529 U.S. 362, 390-91 (2000). Second, under Strickland, the petitioner must
show that he was prejudiced by the deficient performance. “This requires showing

that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687. To establish prejudice, the
defendant “must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the
outcome.” See id. at 694. The Strickland test is conjunctive and a habeas petitioner
must establish both the deficiency in the performance prong and the prejudice

prong. See Strickland, 466 U.S. at 687; Dooley v. Petsock, 816 F.2d 885, 889 (3d
Cir. 1987). As a result, if a petitioner fails on either prong, he loses. See Holladay
v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must
be satisfied in order to show a violation of the Sixth Amendment, the court need not

address the performance prong if the defendant cannot meet the prejudice prong, or
vice versa.”) (citation omitted); Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir.
1999) (“This court may address the performance and prejudice components in any
order, but need not address both if Mr. Foster fails to make a sufficient showing of
one.”).

The two-pronged test established in Strickland “qualifies as ‘clearly
established Federal law’” for purposes of the AEDPA. See Rainey v. Varner, 603
F.3d 189, 197 (3d Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 391 (2000)).

Therefore, under § 2254(d)(1), the relevant inquiry in assessing ineffectiveness
claims that have been adjudicated on the merits is whether the state court’s decision
involved an unreasonable application of Strickland or are based on an unreasonable
determination of the facts. See Jacobs v. Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005).

Moreover, Pennsylvania’s three-pronged test for ineffective assistance claims, see
Commonwealth v Pierce, 515 Pa. 153, 527 A.2d 973, 975-77 (Pa. 1987), is not
contrary to Strickland, see Jacobs, 395 F.3d at 107 n.9.

III. DISCUSSION
A. Ground Seven: Non-Cognizable on Habeas Review
In Ground Seven, Petitioner suggests that the Superior Court erred when it
upheld the PCRA court’s denial of his claim regarding newly- and after-discovered

evidence. (Doc. No. 12 at 39.) According to Petitioner, the Superior Court
erroneously concluded that he “presented bald assertions in justifying how his
newly/after-discovered evidence claim satisfied the four-prong test requirement for

such evidence.” (Id.) To the extent Petitioner is raising a claim of error in his PCRA
appellate proceedings, he cannot do so. “[H]abeas proceedings are not the
appropriate forum for [Petitioner] to pursue claims of error at the PCRA

proceeding.” Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004); see also
Holland v. Folino, No. CIV.A. 13-6623, 2015 WL 1400660, at *1 (E.D. Pa. Mar.
26, 2015) (noting that “[e]rrors alleged during state collateral review are non-

cognizable on federal review”). As the United States Court of Appeals for the Third
Circuit has explained:
The federal courts are authorized to provide collateral review where a
petitioner is in state custody or under a federal sentence imposed in
violation of the [C]onstitution or the laws or treaties of the United
States. 28 U.S.C. §§ 2254, 2255. Thus, the federal role in reviewing
an application for habeas corpus is limited to evaluating what occurred
in the state or federal proceedings that actually led to the petitioner’s
conviction; what occurred in the petitioner’s collateral proceeding does
not enter into the habeas calculation.

Hassine v. Zimmerman, 160 F.3d 941, 954-55 (3d Cir. 1998). Thus, to the extent
Petitioner’s claim is based on alleged error that occurred during his PCRA
proceedings, it is not cognizable.3
B. Exhaustion and Procedural Default
The Court must next determine whether Petitioner’s grounds for relief
presented in his § 2254 petition have been exhausted in the state courts and, if not,
whether circumstances exist to excuse Petitioner’s procedural default of his claims.

3 In any event, Ground Seven is essentially a restatement of Grounds One and Two, which the
Court discusses infra.
Respondents maintain that Ground Eight is procedurally defaulted. (Doc. No. 14 at
28.)

Absent unusual circumstances, a federal court should not entertain a petition
for writ of habeas corpus unless the petitioner has satisfied the exhaustion
requirement articulated in 28 U.S.C. § 2254(b). Under § 2254(c), a petitioner will

not be deemed to have exhausted his available state remedies if he had the right
under the law of the state to raise, by any available procedure, the question presented.
See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). A petitioner may exhaust a federal
claim either by raising it on direct appeal or presenting it in post-conviction PCRA

proceedings. See id. at 845. In addition, a claim is exhausted when it has been
“fairly presented” to the state court. See Picard v. Connor, 404 U.S. 270, 275 (1971).
To that end, the federal habeas claim “must be the substantial equivalent of that

presented to the state courts.” See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.
1997). The petition must do so “in a manner that puts [the respondents] on notice
that a federal claim is being asserted.” See Bronshtein v. Horn, 404 F.3d 700, 725
(3d Cir. 2005). “The Supreme Court has instructed that a claim is not ‘fairly

presented’ if the state court ‘must read beyond a petition or brief . . . in order to find
material’ that indicates the presence of a federal claim.” Collins v. Sec’y of Pa. Dep’t
of Corr., 742 F.3d 528, 542 (3d Cir. 2014) (quoting Baldwin v. Reese, 541 U.S. 27,

32 (2004)). Moreover, a habeas corpus petitioner has the burden of proving the
exhaustion of all available state remedies. See 28 U.S.C. § 2254. Overall, the
exhaustion requirement advances the goals of comity and federalism while reducing

“piecemeal litigation.” See Duncan v. Walker, 533 U.S. 167, 180 (2001).
“When a claim is not exhausted because it has not been ‘fairly presented’ to
the state courts, but state procedural rules bar the applicant from seeking further

relief in state courts, the exhaustion requirement is satisfied because there is an
absence of available State corrective process.” McCandless v. Vaughn, 172 F.3d
255, 261 (3d Cir. 1999). Claims deemed exhausted because of a state procedural bar
are considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d

153, 159 (3d Cir. 2000). The district court then analyzes the claims under the
procedural default doctrine. See id. The purpose of this rule is to prevent habeas
petitioners from avoiding the exhaustion doctrine by defaulting their claims in state

court. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). In Cone v. Bell, 556
U.S. 449 (2009), the United States Supreme Court explained:
It is well established that federal courts will not review questions of
federal law presented in a habeas petition when the state court’s
decision rests upon a state law ground that is independent of the federal
question and adequate to support the judgment. In the context of federal
habeas proceedings, the independent and adequate state ground
doctrine is designed to ensure that the State’s interest in correcting their
own mistakes is respected in all federal habeas cases. When a petitioner
fails to properly raise his federal claims in state court, he deprives the
State of an opportunity to address those claims in the first instance and
frustrates the State’s ability to honor his constitutional rights.
Therefore, consistent with the longstanding requirement that habeas
petitioners must exhaust available state remedies before seeking relief
in federal court, we have held that when a petitioner fails to raise his
federal claims in compliance with relevant state procedural rules, the
state court’s refusal to adjudicate the claim ordinarily qualifies as an
independent and adequate state ground for denying federal review.

Id. at 465 (internal quotations and citations omitted).
However, habeas corpus review is not barred in every instance in which a state
court invokes a procedural rule to preclude its review of the federal claims asserted
by a state prisoner. A state procedural rule can preclude federal habeas corpus
review “only when the state rule is ‘independent of the federal question [presented]
and adequate to support the judgment.’” See Leyva v. Williams, 504 F.3d 357, 365
(3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)). The
requirements of independence and adequacy are distinct. See id. A rule is

“independent” if it is not dependent on any federal constitutional question, but “[a]
state procedural ground will not bar federal habeas relief if the state law ground is
‘so interwoven with federal law’ that it cannot be said to be independent of the merits

of a petitioner’s federal claims.” See Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir.
2004). A rule is “adequate” if it was “firmly established, readily ascertainable, and
regularly followed at the time of the purported default.” See Levya, 504 F.3d at 366
(quoting Szuchon v. Lehman, 273 F.3d 299, 372 (3d Cir. 2001)).

A petitioner whose constitutional claims have not been addressed on the
merits due to procedural default can overcome the default, thereby allowing federal
court review, if the petitioner can demonstrate either: (1) “cause” for the default and
“actual prejudice” as a result of the alleged violation of federal law; or (2) that the
failure to consider the claims will result in a “fundamental miscarriage of justice.”

See Coleman, 501 U.S. at 750. In order to show “cause and prejudice” sufficient to
overcome a state court default, a petitioner must demonstrate the “cause” for his
default and “prejudice” attributable thereto. See Werts v. Vaughn, 228 F.3d 178, 192

(3d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255 (1989)). “[T]he existence of
cause for a procedural default must ordinarily turn on whether the prisoner can show
that some objective factor external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488

(1986). Under the “prejudice prong,” a petitioner has the burden of showing “not
merely that the errors at his trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.” See United States v. Frady, 456 U.S. 152, 170 (1982);
see also Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008).
To show a “fundamental miscarriage of justice,” a petitioner must establish
that “a constitutional violation has probably resulted in the conviction of one who is

actually innocent.” See Schlup v. Delo, 513 U.S. 298, 326 (1995). Demonstrating
actual innocence requires a stronger showing than that needed to establish prejudice.
See id. In Goldblum v. Klem, 510 F.3d 204 (3d Cir. 2007), the United States Court

of Appeals for the Third Circuit explained the applicable two-step inquiry as follows.
First, a “court must decide ‘whether the petitioner has presented new reliable
evidence . . . not presented at trial,’” and second, if a petitioner “puts forth new

evidence not considered by the jury, a court asks ‘whether it is more likely than not
that no reasonable juror would have convicted him in light of the new evidence.’”
See id. at 225 (citing Hummard v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004)). If a

petitioner can meet this standard by establishing “cause and prejudice” or a
“fundamental miscarriage of justice,” his default will be excused, and the Court may
review the merits of the claim presented. See id.
In Ground Eight, Petitioner argues that his sentence is illegal and violates the

Fifth, Sixth, and Fourteenth Amendments because the sentencing judge did not give
any reason to deviate from the sentencing guidelines. (Doc. No. 12 at 41-44.)
Respondents maintain that Ground Eight is procedurally defaulted because

Petitioner never raised it before the state courts and is now time-barred from doing
so. (Doc. No. 14 at 28.) In the instant case, the record is clear that Petitioner never
presented this claim to the state courts. Respondents are correct that Petitioner
cannot return to state court to file a PCRA petition raising this ground because the

PCRA’s statute of limitations has expired. See 42 Pa. Cons. Stat. § 9545(b) (noting
that a PCRA petition must “be filed within one year of the date the judgment
becomes final” and that “a judgment becomes final at the conclusion of direct
review”).4 Thus, because Ground Eight was not raised in the state courts and
Petitioner can no longer return to state court to present it, Ground Eight is

procedurally defaulted.
Petitioner suggests that he can establish cause and prejudice for his default of
Ground Eight based upon governmental interference with his access to the courts.

(Doc. No. 12 at 45.) According to Petitioner, the law library at SCI Huntingdon has
been closed because of the COVID-19 pandemic and that this closure establishes
cause to excuse his default because it is an “impediment upon [his] rights to
effectively appeal his claims” to this Court. (Id. at 46-47.) While the Court is

cognizant that the COVID-19 pandemic has led to restrictions on the use of law
libraries within the prisons, Petitioner advances no compelling argument to establish
cause and prejudice for his failure to raise Ground Eight before the state courts.

Moreover, Petitioner does not assert that a fundamental miscarriage of justice will
occur if this Court does not consider his claim. See Coleman, 501 U.S. at 750.
Accordingly, federal review of Ground Eight is barred, and the Court will dismiss
that claim for relief.

4 While § 9545 sets forth limited exceptions to this rule, none is applicable to Petitioner’s claims.
Petitioner does not make any allegations that the Government in any way interfered with his ability
to file a PCRA petition or with his direct appeal, and he does not rely on a constitutional right
newly recognized by the United States Supreme Court or the Supreme Court of Pennsylvania. See
42 Pa. Cons. Stat. § 9545(b)(1)(i), (iii). Petitioner also does not allege that he could not have
discovered the basis of these claims through the exercise of due diligence. See id. § 9545(b)(1)(ii).
C. Merits of Petitioner’s Remaining Claims
1. Grounds One and Two

In Grounds One and Two, Petitioner maintains that he is entitled to a new trial
based upon newly/after-discovered evidence. (Doc. No. 12 at 2-13.) Petitioner
indicates that in 2017, two (2) years after Petitioner was found guilty, Shaw was

convicted for making false reports concerning a domestic aggravated assault. (Id.)
He suggests that this evidence suggests that Shaw made false claims that led to his
conviction and that her 2017 conviction suggests that he is actually innocent. (Id.)
With respect to these claims, the Superior Court stated:

As noted supra, [Petitioner’s] “after-discovered evidence” is the
discovery of Shaw’s 2017 guilty plea for false reporting. [Petitioner’s]
Brief at 10. [Petitioner] avers Shaw’s conviction stems from her
“falsely accusing a man of domestic assault” in July 2017. Id.; See also
id. at Exhibit A-1 (news article from Fox 43 detaining Shaw’s charges).
[Petitioner] contends Shaw’s subsequent conviction proves his
innocence.

We review this claim mindful of the following.

After-discovered evidence is a basis for a new trial only if
it: (1) has been discovered after the trial and could not have
been obtained prior to the conclusion of the trial by the
exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely for
impeachment purposes; and (4) is of such a nature and
character that a different verdict will likely result if a new
trial is granted.

[Commonwealth v.] Cobbs, 759 A.2d [932,] 934 [(Pa. Super. 2000)].
Here, the PCRA court found [Petitioner’s] after-discovered evidence
claim did not entitle him to relief because “[t]he after-discovered
evidence rule cannot be used to solely impeach a witness’s credibility.”
Order, 10/9/2018.

Upon review, we find the PCRA court’s conclusion that the alleged
after-discovered evidence would not be used for anything beyond
impeaching Shaw’s credibility to be supported by the record. Clearly,
Shaw’s false reporting conviction could be introduced only to attack
the credibility of Shaw, especially considering Shaw’s 2017 conviction
stemmed from a wholly unrelated matter involving an individual who
was not [Petitioner].

Moreover, this Court is unpersuaded by [Petitioner’s] bald assertions
that Shaw’s conviction, which occurred two years after [Petitioner] was
found guilty of assaulting Shaw, constitutes more than impeachment
evidence. It neither proves his innocence nor would result in a different
verdict. See Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super.
2016) (quoting Commonwealth v. Castro, 93 A.3d 818, 827, n.13 (Pa.
2014) (finding that “[e]ven if his impeachment would ‘destroy and
obliterate’ a witness, it is still impeachment” and “a new trial could not
be granted . . . on that basis alone”)); Commonwealth v. Foreman, 55
A.3d 532, 537-538 (Pa. Super. 2012) (finding Foreman’s after-
discovered evidence did not entitle him to relief when, inter alia,
Foreman “failed to show any nexus between his case and Detective
Simon’s alleged misconduct in an incident, which occurred more than
two years after [Foreman’s] conviction”). Accordingly, we agree with
the PCRA court that [Petitioner] is not entitled to relief on his after-
discovered evidence claim.

(Doc. No. 14-11 at 3-4.) The Superior Court noted further that the “after-discovered
evidence” could also be considered merely cumulative because, at trial, “defense
counsel questioned Shaw about her 2008 conviction for false reporting, false
statements, and theft by unlawful taking.” (Id. at 6.) Moreover, Petitioner “fail[ed]
to account for the fact that Cicak witnessed the assault and identified [Petitioner] as
the individual he saw attacking Shaw.” (Id.) Although Petitioner argued that his
identification was faulty, “it was within the province of the jury, as fact-finder to
assess the credibility of testifying witnesses.” (Id.)

“The Supreme Court has not yet recognized the existence of a freestanding
claim of actual innocence.” Wright v. Sup’t Somerset SCI, 601 F. App’x 115, 119
(3d Cir. 2015). Instead, “the Supreme Court treats actual innocence as a gateway

for consideration of procedurally defaulted claims.” Id.; see also Schlup v. Delo,
513 U.S. 298, 327-29 (1995) (requiring a showing, with respect to procedurally
defaulted claims, “that it is more likely than not that no reasonable juror woul dhavbe
convicted [the petitioner] in the light of the new evidence”). The Supreme Court has

explained that “[c]laims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding.”

Herrera v. Collins, 506 U.S. 390, 400 (1993). The Herrera Court, however, left
open the possibility of a freestanding claim of actual innocence, particularly in the
context of a capital case:
We may assume, for the sake of argument in deciding this case, that in
a capital case a truly persuasive demonstration of “actual innocence”
made after trial would render the execution of a defendant
unconstitutional, and warrant federal habeas relief if there were no state
avenue open to process such a claim. But because of the very disruptive
effect that entertaining claims of actual innocence would have on the
need for finality in capital cases, and the enormous burden that having
to retry cases based on often stale evidence would place on the States,
the threshold showing for such an assumed right would necessarily be
extraordinarily high.
Id. at 417.
In the instant case, even if a freestanding claim of actual innocence is

cognizable, the Court concludes that Petitioner’s claim “do[es] not satisfy the Schlup
gateway standard, much less the ‘extraordinarily high’ standard required by
Herrera.” Wright, 601 F. App’x at 121. The state courts reasonably concluded that

evidence of Shaw’s 2017 conviction could only be used to impeach her, and that
such evidence would be cumulative because defense counsel questioned her about
her 2008 conviction for false reports. (Doc. No. 17-1 at 123-24.) Moreover, Mark
Cicak testified that he witnessed the assault and identified Petitioner as the attacker.

(Id. at 177-98.) While Petitioner maintains that Cicak’s identification was faulty,
“federal habeas courts [have] no license to redetermine credibility of witnesses
whose demeanor has been observed by the state trial court.” Marshall v. Lonberger,

459 U.S. 422, 434 (1983). Upon review of the record, the Court concludes that
Petitioner has not demonstrated that the state court’s disposition of these claims was
contrary to, or was an unreasonable application of, United States Supreme Court
precedent. Moreover, Petitioner has not demonstrated that the state court’s

determination of the facts was unreasonable. Accordingly, Grounds One and Two
will be dismissed.
2. Ground Three
In Ground Three, Petitioner asserts that the evidence used to convict him

cannot stand because it must deemed unreliable for violating “crimen falsi”
standards. (Doc. No. 12 at 14.) The Court construes Petitioner’s argument as one
regarding the weight and the sufficiency of the evidence against him. With respect

to the sufficiency of the evidence, the Superior Court stated the following in its
opinion regarding Petitioner’s direct appeal:
[Petitioner’s] second claim of error is a challenge to the sufficiency of
the evidence with respect to the “serious bodily injury” element of the
aggravated assault statute. It is well established that:

As a successful sufficiency of the evidence claim
precludes a re-trial and results in discharge as to the crime
in question, we address [Petitioner’s] sufficiency
challenges at the outset. Commonwealth v. Brown, 52
A.3d 320, 324 (Pa. Super. 2012). In analyzing such
claims, “we must determine whether the evidence
admitted at trial, and all reasonable inferences drawn
therefrom, when viewed in a light most favorable to the
Commonwealth as verdict winner, support the conviction
beyond a reasonable doubt.” Id. at 323. Critically
important, we must draw all reasonable inferences from
the evidence in favor of the Commonwealth as the verdict
winner. Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa.
Super. 2013). “Where there is sufficient evidence to
enable the trier of fact to find every element of the crime
has been established beyond a reasonable doubt, the
sufficiency of the evidence claim must fail.” Brown, supra
at 323. Of course, “the evidence established at trial need
not preclude every possibility of innocence and the fact-
finder is free to believe all, part, or none of the evidence
presented. Id.
The Commonwealth can meet its burden “by wholly
circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the
combined circumstances.” Id. It is improper for this Court
“to re-weigh the evidence and substitute our judgment for
that of the fact-finder.” Id. Additionally, “the entire
record must be evaluated and all evidence actually
received must be considered.” Id.

Commonwealth v. Kelly, 78 A.3d 1136, 1139 (Pa. Super. 2013).

The pertinent sections of the aggravated assault statute with which
[Petitioner] was charged read as follows:

(a) Offense defined.—A person is guilty of aggravated
assault if he:

(1) attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to
the value of human life;

(2) attempts to cause or intentionally, knowingly or
recklessly causes serious bodily injury to any of the
officers, agents, employees or other persons enumerated in
subsection (c) or to an employee of an agency, company
or other entity engaged in public transportation, while in
the performance of duty;

*******

(18 Pa. C.S. § 2702(a)(1)-(2)).

[Petitioner] specifically challenges the sufficiency of the evidence
presented by the Commonwealth to prove serious bodily injury. The
law on this issue is well-established. The appellate courts have defined
“serious bodily injury” as, “[b]odily injury which creates a substantial
risk of death or which causes serious permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or
organ.” (18 Pa. C.S. § 2301). With respect to the Commonwealth’s
burden of proof:

In order to sustain a conviction for aggravated assault, the
Commonwealth does not have to prove that the serious
bodily injury was actually inflicted but rather that the
Appellant acted with the specific intent to cause such
injury. Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa.
Super. 2006). Further,

[w]here the victim does not sustain serious bodily injury,
the Commonwealth must prove that the appellant acted
with specific intent to cause serious bodily injury. The
Commonwealth may prove intent to cause serious bodily
injury by circumstantial evidence. In determining whether
the Commonwealth proved the Appellant had the requisite
specific intent, the fact-finder is free to conclude the
accused intended the natural and probable consequences
of his actions to result therefrom. A determination of
whether an appellant acted with intent to cause serious
bodily injury must be determined on a case-by-case basis.

An intent is a subjective frame of mind, it is of necessity
difficult of direct proof[.] We must look to all the evidence
to establish intent, including, but not limited to, appellant’s
conduct as it appeared to his eyes[.] Intent can be proven
by direct or circumstantial evidence; it may be inferred
from acts or conduct or from the attendant circumstances.
Moreover, depending on the circumstances even a single
punch may be sufficient.”

Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super. 2008)
(internal citations and quotations omitted).

Upon review of the record, the evidence presented at trial viewed in
light most favorable to the Commonwealth as the verdict winner is
more than sufficient to establish that Ms. Shaw suffered serious bodily
injury. Cast in the light of the past circumstances of [Petitioner] and
Shaw’s violent relationship, including prior assaults and calls to 911
with threats to kill the female in the house, the jury heard testimony
about Ms. Shaw being thrown down and having her head pounded
against the hood of an automobile and the sidewalk. The assault
eventually spilled out into the street which put her at risk of being struck
by an automobile in addition to suffering a beating. Mr. Ahmay
witnessed the beating and also testified to witnessing [Petitioner]
punching and kicking Ms. Shaw. Ms. Shaw was treated at the hospital
emergency room due to the assault as she had sustained a broken nose,
facial lacerations and bruises as well as a concussion. The
overwhelming evidence of record would easily permit the jury to infer
that [Petitioner] intended to inflict serious bodily injury to Ms. Shaw.
Whether the injuries were actually life threatening, although a strong
argument may be made that they were, is of no moment as “the conduct
giving rise to the inference that the defendant intended to inflict serious
bodily harm need not in itself be life threatening.” Commonwealth v.
Catering, 451 Pa. Super. 42, 46, 678 A.2d 389, 391 (1996) citing
Commonwealth v. Elrod, 572 A.2d 1229, 1231. Accordingly,
[Petitioner’s] conviction for aggravated assault must stand as this Court
did not err in denying his Motion for a Directed Verdict of Acquittal.

(Doc. No. 14-5 at 9-10.)
The standard of review used by a federal court when addressing a claim
regarding the sufficiency of the evidence is “whether after reviewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” See Jackson
v. Virginia, 443 U.S. 307, 319 (1979). The credibility of witnesses, the resolution
of conflicts of evidence, and the drawing of reasonable inferences from proven facts
all fall within the exclusive province of the factfinder and, therefore, are beyond the
scope of federal habeas sufficiency review. See id. Accordingly, the only question
under Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.” See Coleman v. Johnson, 566 U.S. 650, 656 (2012).

Upon consideration of the Superior Court’s thorough discussion and the
evidence presented at Petitioner’s trial, as described supra, the Court concludes that
the state courts’ conclusions were a reasonable determination of the facts in light of

the evidence presented, and was neither contrary to, nor an unreasonable application
of, clearly established federal law. As noted above, Petitioner challenges the
reliability of the evidence presented against him, particularly that provided by Shaw
and Cicak. However, a court reviewing a § 2254 petition has “no license to

redetermine credibility of witnesses whose demeaner has been observed by the state
trial court, but not by them.” See Marshall, 459 U.S. at 434; see also Valenzuela v.
Pennsylvania, No. 18-1246, 2019 WL 4139285, at *1 (E.D. Pa. Aug. 30, 2019)

(noting that “[i]t is for the jury to sort out any inconsistences in the record”); Davis
v. Lavan, No. 03-40211, 2004 WL 2166283, at *9 (E.D. Pa. Sept. 23, 2004) (noting
that “a claim that a verdict is against the weight of the evidence is not cognizable on
habeas review because it requires an assessment of the credibility of the evidence

presented at trial, and a state court’s credibility determinations are binding on a
federal habeas court”). Petitioner, therefore, is not entitled to relief, and Ground
Three will be dismissed.
3. Ground Four
In Ground Four, Petitioner maintains that his due process rights were violated

by the Commonwealth and trial court engaging in ex parte communications and
hearings. (Doc. No. 12 at 21.) He suggests that although the charges against him
were initially dismissed when Ms. Shaw failed to appear to testify at a preliminary

hearing, the Commonwealth visited Magistrate Robert Jennings on October 2, 2013
and “schemed to manufacture a probable cause scenario.” (Id. at 21-22.) The
Commonwealth then acquired an arrest warrant for Ms. Shaw. (Id.) On October 4,
2013, during an ex parte hearing, the warrant for Ms. Shaw’s arrest was rescinded

and bail was set. (Id. at 23-24.) Petitioner argues that he “was not permitted to
attend and knew nothing of this until years later.” (Id. at 24.) He asserts that the
Commonwealth and trial court “engaged in ex parte communications with the

magistrate to have the petitioner’s criminal matter bound over for trial regardless of
the fact there was no complaining victim.” (Id. at 26.) He suggests that the ex parte
communications and hearings “were designed to coercively modify Ms. Shaw’s
mindset toward Petitioner from exculpatory to inculpatory.” (Id. at 29.)

With respect to this claim, the Superior Court stated:
Next, [Petitioner] avers he “was denied a fair trial, due process, and
equal protection under the law[,]” when the Commonwealth,
magisterial district judge and the trial court took part in ex parte
communications with Shaw without [Petitioner’s] knowledge.
[Petitioner’s] Brief at 25-31.
Our Supreme Court has defined the term ex parte as:

On one side only; by or for one party; done for, in
behalf of, or on the application of, one party only.
A judicial proceeding, order, injunction, etc., is said
to be ex parte when it is taken or granted at the
instance and for the benefit of one party only, and
without notice to, or contestation by any person
adversely interested.

Commonwealth v. Carpenter, [725 A.2d 154, 168-69 (Pa.
1999)] (citation omitted). With exceptions not applicable
here, both the Code of Judicial Conduct and Rules of
Professional Responsibility prohibit ex parte
communications. See Code of Judicial Conduct Rule 2.9,
and Rule of Professional Conduct 3.5(b).

Commonwealth v. McCullough, 201 A.3d 221, 229 (Pa. Super. 2018).

“Initially, we must determine whether this claim is cognizable under
the PCRA because the PCRA limits the types of claims that are
cognizable.” Commonwealth v. Moore, 653 A.2d 24, 25 (Pa. Super.
1995) (emphasis in original). See 42 Pa. C.S. § 9543(a)(2)
(enumerating seven classes of claims cognizable under the PCRA).
[Petitioner] asserts that he is eligible for relief under the PCRA because
the alleged ex parte communications constituted a violation of his
constitutional rights and therefore, is a cognizable claim pursuant to 42
Pa. C.S. § 9543(a)(2)(i) (specifically providing that an alleged
“violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the circumstances
of the particular case, so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place”
is cognizable under the PCRA). [Petitioner’s] Reply Brief at 3
(unnumbered). However, [Petitioner] “fails to rationalize how this
alleged error ‘so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.’ 42
Pa. C.S. § 9543(a)(2)(i).” Commonwealth v. Gwynn, 943 A.2d 940,
951 (Pa. 2008). Thus, we are inclined to find that [Petitioner] failed to
“plead and prove by a preponderance of the evidence” that he is entitled
to relief. 42 Pa. C.S. § 9543(a).
Regardless, even if [Petitioner] raised and pled properly a cognizable
post-conviction issue, we would conclude it lacks merit. In this case,
[Petitioner] cites hearings that were held in relation to a material
witness bench warrant issued by the trial court against Shaw upon the
Commonwealth’s request. [Petitioner’s] Brief at 26-29. In essence,
[Petitioner] claims that by arresting Shaw and subjecting her to a period
of incarceration, the trial court and Commonwealth engaged in
harassing behavior to force Shaw into lying about [Petitioner’s]
involvement in the assault after Shaw stated several times that her
assailant was unknown to her. Id.

The PCRA court responded to [Petitioner’s] claim as follows.

[Petitioner] raises a claim of th[e trial c]ourt having ex
parte hearings [with] Shaw. At first, [] Shaw was reluctant
to testify against [Petitioner]. The Commonwealth sought
a material witness warrant . . . . [Petitioner] seems to claim
that the [c]ourt erred when it ordered “[u]pon arrest,
[Shaw] is to be brought before th[e trial c]ourt only.”
However, that is what the rule provides. See Pa. R. Crim.
P. 150(a)(1) (“[w]hen a defendant or witness is arrested
pursuant to a bench warrant, he or she shall be taken
without unnecessary delay for a hearing on the bench
warrant. The hearing shall be conducted by the judicial
officer who issued the bench warrant, or, another judicial
officer designated by the president judge or by the
president judge’s designee to conduct bench warrant
hearings.”). Here, the Commonwealth sought a material
witness warrant to procure [Shaw’s] testimony at trial.
Accordingly, this issue is without merit.

Memorandum Order, 8/29/2018, at 5 (some citations omitted).

Here, [Petitioner] appears to conflate unlawful ex parte
communications with hearings held in relation to a bench warrant
issued against Shaw to compel her testimony at trial. These hearings
were not only lawful, but were required under the Pennsylvania Rules
of Criminal Procedure. See Pa. R. Crim. P. 150(a)(1), supra. No relief
is due.
(Doc. No 14-11 at 4.)
Upon review of the record, the Court concludes that Petitioner has not

demonstrated that the state court’s disposition of this claim was contrary to, or was
an unreasonable application of, United States Supreme Court precedent. Moreover,
Petitioner has not demonstrated that the state court’s determination of the facts was

unreasonable. Petitioner has presented no evidence to suggest that the
Commonwealth and trial court engaged in unlawful ex parte communications
designed to coerce Shaw’s testimony. Moreover, to the extent Petitioner believes
his due process rights were violated by the lack of his presence at the proceedings

regarding Shaw’s material witness warrant, such a claim lacks merit. A defendant
is guaranteed the right to be present ay any stage of the criminal proceeding that is
critical to its outcome if his presence would contribute to the fairness of the

procedure. See Kentucky v. Stincer, 482 U.S. 730, 745 (1987). A “critical stage” is
characterized by an opportunity for the exercise of judicial discretion or when certain
legal rights may be lost if not exercised at that stage. Mempa v. Rhay, 389 U.S. 128,
135 (1967). Due process, however, does not require a defendant’s presence where

“there is no indication that [the defendant] ‘could have done [anything] had [he]
been at the [hearing] nor would [he] have gained anything by attending.” Stincer,
482 U.S. at 747 (quoting United States v. Gagnon, 470 U.S. 522, 527 (1985)). No
such indication is present in this matter. Petitioner has not demonstrated that his due
process rights were violated, and, therefore, Ground Four will be dismissed.

4. Ground Five
In Ground Five, Petitioner asserts that his due process rights were violated
when he was denied his right to discovery. (Doc. No. 12 at 31.) Petitioner suggests

he was denied copies of discovery notes that set forth Anthony Moore and Gene the
taxicab driver as alibi witnesses. (Id.) According to Petitioner, he requested
documents consisting of statements from these individuals that they were with
Petitioner at the time of the alleged assault. (Id.)

With respect to this claim, the Superior Court stated:
With respect to his third claim, [Petitioner] contends the PCRA court
committed a “due process error” when it twice failed to grant
[Petitioner’s] request for discovery. [Petitioner’s] Brief at 33-35.
[Petitioner] contends this discovery was necessary “to properly raise”
an “alibi witness claim and properly subpoena his alibi witness[.]”
[Petitioner’s] Brief at 34.

In PCRA proceedings, discovery is only permitted upon
leave of court after a showing of exceptional
circumstances. 42 Pa. C.S. [] § 9545(d)(2); Pa. R. Crim.
P. 902(E)(1). The PCRA and the criminal rules do not
define the term “exceptional circumstances.” Rather, it is
for the trial court, in its discretion, to determine whether a
case is exceptional and discovery is therefore warranted.

Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012). “The
denial of a request for post-conviction discovery is reviewed for an
abuse of discretion. Discovery in PCRA proceedings cannot be used as
an excuse for engaging in a ‘fishing expedition.’” Commonwealth v.
Edmiston, 65 A.3d 339, 353 (Pa. 2013) (internal citation omitted). “We
have explained that [d]iscretion is abused when the course pursued
represents not merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or where the
record shows that the action is a result of partiality, prejudice, bias or
ill will.” Commonwealth v. Flor, 136 A.3d 150, 154 (Pa. 2016)
(internal quotation marks omitted).

After [Petitioner] filed his pro se PCRA petition, he filed a petition for
discovery on April 3, 2018. Therein, [Petitioner] requested an
“unabridged copy of discovery” pertaining to his case. Petition for
Discovery, 4/3/2018, at 1. [Petitioner] stated that without such
discovery, an amended PCRA petition “would be looked/ruled upon as
bald assertions, and unfounded conclusory allegations.” Id. Notably,
[Petitioner] failed to elaborate on what discovery would be pertinent to
which issues that he intended on presenting in his amended petition.

That same day, the PCRA court denied [Petitioner’s] request for
discovery because [Petitioner] failed “to satisfy the exceptional
circumstances requirement of Pa. R. Crim. E. 902(E)(1)” and because
[Petitioner’s] request was “vague.” Order, 4/3/2018. [Petitioner] did
not attempt to amend his petition further nor did [Petitioner] contest the
PCRA court’s finding that his vague requests did not satisfy the
exceptional circumstances requirement entitling [Petitioner] to
discovery. Furthermore, [Petitioner] has not argued on appeal that the
PCRA court abused its discretion in finding as such. Thus, no relief is
due. See Frey, 41 A.3d at 611 (“We will not disturb a court’s
determination regarding the existence of exceptional circumstances
unless the court abused its discretion . . . . Moreover, we recall that the
appellant has the duty to convince us an abuse occurred.”) (internal
citations omitted).

(Doc. No. 14-11 at 4-5.)
As an initial matter, it appears that Petitioner takes issue with the denial of his
discovery request during PCRA proceedings. As noted supra, however, habeas
proceedings are not the appropriate forum to pursue such claims of error. See
Lambert, 387 F.3d at 247; Hassine, 160 F.3d at 954-55. While unclear, Petitioner
may be asserting that his due process rights were violated before trial because the
Commonwealth failed to provide exculpatory evidence. The government has a duty

to disclose to a criminal defendant any exculpatory evidence that is material to guilt
or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). Failure to do so violates
a defendant’s due process rights. Id. at 86, 87. A Brady violation occurs when “(1)

evidence was suppressed; (2) the evidence was favorable to the defense; and (3) the
evidence was material to guilt or punishment.” Simmons v. Beard, 590 F.3d 223,
233 (3d Cir. 2009) (quoting United States v. Risha, 445 F.3d 298, 303 (3d Cir.
2006)). Evidence is “material” if there is a reasonable probability that, but for the

prosecution’s failure to disclose the evidence, “the result of the proceeding would
have been different.” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)). Here, however, Petitioner has not

demonstrated, and the record does not indicate, that any exculpatory evidence was
withheld from Petitioner by the Commonwealth. Petitioner, therefore, is not entitled
to relief for this claim, and Ground Five will be dismissed.
5. Ground Six

In Ground Six, Petitioner asserts that trial counsel rendered ineffective
assistance by failing to call alibi witnesses to sustain Petitioner’s actual innocence
claim. (Doc. No. 12 at 35.) According to Petitioner, counsel should have called

Gene the cab driver and Anthony Moore as witnesses. (Id.) Petitioner argues that,
during trial, he testified that he was with Moore at the time of the assault. (Id.) He
maintains that his alibi witnesses would have testified that he was dropped off at

Moore’s house, which was nowhere “near the incident of assault,” between 2:55 and
3 a.m. (Id. at 36.)
With respect to this claim, the Superior Court stated:

Lastly, [Petitioner] contends trial counsel was ineffective for failing to
call two alibi witnesses: “Gene ‘the Harrisburg [c]ab [d]river]’ and
Anthony Moore.” [Petitioner’s] brief at 36.

In order to establish that trial counsel was ineffective for
failing to call witnesses, a petitioner must: (1) identify the
witness or witnesses; (2) demonstrate that counsel actually
knew, or had a duty to know, the identity of the witness or
witnesses prior to trial; (3) demonstrate that the witness or
witnesses were ready, willing and able to testify for the
defense at trial; and (4) demonstrate that the proposed
testimony would have been helpful to the defense asserted
at trial.

Commonwealth v. Neal, 713 A.2d 657, 663 (Pa. Super. 1998).

In considering [Petitioner’s] claim of ineffective assistance of counsel
for failing to call witnesses, the PCRA court found [Petitioner] was not
entitled to relief because [Petitioner] failed “to show that the witnesses
existed and [were] available at the time of trial. Nor did [Petitioner]
attach an affidavit or some other means to show that the witnesses were
willing and able to appeal. Finally, [Petitioner] provided no
information as to what this proposed testimony would reveal[.]”
Memorandum Order, 8/29/2019, at 4-5. Upon review of the record and
applicable filings, we agree.

“Failure to call an alibi witness does not per se constitute ineffective
assistance of counsel.” Commonwealth v. Lilliock, 740 A.2d 237, 245
(Pa. Super. 1999). Thus, [Petitioner] needed not only to identify the
alleged alibi witnesses, but [Petitioner] also had the burden of proving
that these alleged witnesses were known to counsel, were willing and
able to testify at trial and that their proposed testimony would have been
helpful to the defense. See Neal, supra.

Presumably, based upon [Petitioner’s] testimony at trial that he was
with Anthony Moore the night of the assault, defense counsel knew of
this potential witness. [Petitioner] baldly asserts that these witnesses
would have provided favorable testimony to support [Petitioner’s]
defense that he was not in the area where the assault took place. Such
a bald assertion, without more, does not meet his burden.

Moreover, and most notably, [Petitioner] has failed to demonstrate that
these witnesses were willing and able to testify on his behalf at trial.
This alone precludes [Petitioner] from obtaining relief. See
Commonwealth v. Khalil, 806 A.2d 415, 422-23 (Pa. Super. 20020
(“This Court will not grant relief based on an allegation that a certain
witness may have testified in the absence of an affidavit from that
witness to show that the witness would, in fact, testify.”). Because
[Petitioner] failed to sustain his burden of demonstrating ineffective
assistance of counsel, he is not entitled to relief.

(Doc. No. 14-11 at 5-6.) The Superior Court also noted that while testimony was
presented regarding Petitioner’s frequent use of taxis, “there was no mention of Gene
‘the Harrisburg cab driver.’ Thus, there [was] no indication that counsel was aware
of this ‘witness.’” (Id. at 7.)
“There is a strong presumption that counsel’s attention to certain issues to the
exclusion of others reflects trial tactics rather than sheer neglect.” Harrington v.
Richter, 562 U.S. 86, 109 (2011). With respect to a claim that counsel failed to call
a certain witness, a petitioner “cannot meet his burden to show that counsel made
errors so serious that his representation fell below an objective standard of
reasonableness based on vague and conclusory allegations that some unspecified and
speculative testimony might have established his defense. Rather, he must set forth
facts to support his contention.” Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d

Cir. 1991). Upon review of the record, the Court concludes that Petitioner has not
demonstrated that the state court’s disposition of Ground Six was contrary to, or was
an unreasonable application of, United States Supreme Court precedent. Nothing in

the record suggests that trial counsel was aware of Gene the cab driver. Moreover,
Petitioner has not demonstrated that Anthony Moore was willing and able to testify
on his behalf. Thus, Petitioner has not demonstrated that counsel was ineffective for
failing to call these individuals as witnesses during his trial. See Riddick v. Link, No.

3:17-cv-740, 2020 WL 2847870, at *15-16 (M.D. Pa. June 2, 2020) (concluding
same). Accordingly, Petitioner’s sixth ground for relief must be dismissed.
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. 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).
“When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when

the prisoner shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the instant matter, jurists
of reason would not find the disposition of Petitioner’s petition debatable. As such,
no COA will issue.
V. CONCLUSION

For the foregoing reasons, Petitioner’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (Doc. No. 1) will be denied and a COA will not issue.
An appropriate Order follows.

s/ Sylvia H. Rambo
United States District Judge

Dated: January 25, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409691. Public record. Not legal advice.