Talbert v. Harry

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PAUL TALBERT, :

Petitioner, : 1:18-cv-0953

:

v. : Hon. John E. Jones III

:

SUPERINTENDENT LAUREL :

HARRY, et al., :

Respondents. :

MEMORANDUM

February 3, 2021

Petitioner Paul Talbert (“Petitioner” or “Talbert”), a state inmate presently

on probation, files the instant petition (Doc. 1, 1-1) for writ of habeas corpus

pursuant to 28 U.S.C. § 2254, accompanied by exhibits (Docs. 1-1 through 1-4),

seeking relief from the Judgment of Sentence of two-and-a-half to five years

imprisonment followed by five years of probation entered in the Court of Common

Pleas of York County, Pennsylvania, on April 21, 2014, in criminal case CP-67-

2721-2011, after a jury found him guilty of various crimes including Aggravated

Indecent Assault of a person less than 16 years of age, Indecent Assault, and

Corruption of Minors. Respondents answered the petition with a Response (Doc.

12) and Exhibits (Docs.1-1, 1-2). Thereafter, Talbert filed a Traverse. (Doc. 14).1

1 Although Talbert sets forth a plethora of claims in his petition, most, if not all, of his

supporting arguments are contained in his Traverse.

The petition, which is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214, April 24,

1996, is ripe for decision. For the reasons set forth below, the petition will be

denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Superior Court of Pennsylvania set forth the following relevant factual

background and procedural history while reviewing Talbert’s appeal from a

November 15, 2016 PCRA court order denying relief::

On March 25, 2011, Appellant was charged with a number of crimes,

including aggravated indecent assault of a person less than16 years of

age, indecent assault, and corruption of minors. [n.1: 8 Pa.C.S.A. §§

3125(a)(8), 3126(a)(8), and 6301(a)(1), respectively.]. Appellant

proceeded to a jury trial, where the victim testified that Appellant is

her stepfather and that he began sexually abusing her when she was

around 12 years of age. As the victim testified, Appellant is along-haul

truck driver and Appellant first sexually abused her in his truck, when

he was on a work-trip to New Jersey. N.T. Trial, 8/12/13, at 81-83.

The victim testified that, during this incident, Appellant "tried to put his

dick in [her] vagina," but that she could not remember whether

Appellant succeeded in doing so. Id. at 83-84. The victim testified that

Appellant next sexually assaulted her approximately one to two years

later and that, after the second time, Appellant sexually abused her

about "once or twice a month" until she was 16 years old. Id. at 86 and

89. Further, the victim testified that, during the later instances of abuse,

Appellant would either rub [her] clit[oris] or put his finger in" her

vagina – and that Appellant did so multiple" times. Id. at 89-94.

On August 13, 2013, a jury convicted Appellant of the above-

mentioned crimes and, on April 21, 2014, the trial court sentenced

Appellant to serve a term of two-and-a-half to five years in prison,

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followed by five years of probation. N.T. Sentencing, 4/21/14, at 73-

74. This Court affirmed Appellant’s judgment of sentence on August

4, 2015; our Supreme Court denied Appellant’s petition for allowance

of appeal on December16, 2015. Commonwealth v. Talbert, 131 A.

3d 81 (Pa. Super. 2015) (unpublished memorandum) at 1-14, appeal

denied, 128 A.3d 220 (Pa. 2015).

On February 3, 2016, Appellant filed a pro se PCRA petition. The

PCRA court appointed counsel and Appellant filed an amended petition

on May 16, 2016. The PCRA court held hearings on May 27, and July

29, 2016. On November 16, 2016, the PCRA court denied relief. This

timely appeal follows.

(Doc. 12-2, pp. 581-83). The Superior Court noted that, although Talbert raised a

number of issues in his Pennsylvania Rule of Appellate Procedure 1925(b)

statement, including ineffective assistance of counsel and lower court error related

to after discovered exculpatory evidence, he failed to include a Pennsylvania Rule

of Appellant Procedure 2116 “statement of questions involved” section in his brief.

(Id. at 583-85). The court concluded that because “he clearly and distinctly

‘identifies the specific issue[s]…in the argument section of [the] appellate

brief…[his] failure to comply with Rule 2116(a) does not impede our ability to

review the issue[s]…” (Id. at 585, n.3). The Superior Court extracted the

following ineffective assistance of counsel appellate issues from Talbert’s brief:

1. Because the failure to cross-examine [the victim] on prior

inconsistent statements is both of arguable merit and raises a reasonable

probability of a different verdict, the [trial]court erred.

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2. Because trial counsel’s failure to call multiple witnesses regarding

prior inconsistent statements of [the victim] is both of arguable merit

and raises the reasonable probability of a different verdict, the [trial]

court erred.

3. Trial counsel’s failure to develop an adequate trial strategy because

of his insufficient communication with [Appellant] requires a new trial.

4. Because trial counsel’s failure to introduce prior inconsistent

statements of [the victim] regarding the charged offense is both of

arguable merit and raises the reasonable probability of a different

verdict, the [trial] court erred.

Appellant’s Brief at 1-30. [footnotes omitted].

(Id. at 584-85). The court also considered his contention that he was entitled to

relief based on exculpatory after-discovered evidence. (Id. at 592). The Superior

Court affirmed the PCRA court’s order denying relief. Talbert filed a Petition for

Allowance of Appeal with the Supreme Court; the court denied the petition on

March 26, 2018. (Id. at 597).

Thereafter, Talbert timely filed the instant petition pursuant to 28 U.S.C. §

2254.

II. 28 U.S.C. § 2254 STANDARDS OF REVEW

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

mechanism for a prisoner in custody pursuant to the judgment of a state court 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:

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(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.

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

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

unless it appears that –

(A) the applicant has exhausted the remedies available in

the courts of the State;

...

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

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

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

28 U.S.C. § 2254.

Section 2254 clearly sets limits on the power of a federal court to grant an

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

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

2014). A federal court may consider such a petition only “on the ground that he is

in custody in violation of the Constitution or laws or treaties of the United States.”

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28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the

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

threshold on the courts.

Further, a federal habeas court may not consider a petitioner’s claims of state

law violations; review is limited to issues of federal law. See Estelle v. McGuire,

502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.”); Pulley v. Harris,

465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a

perceived error of state law.”); Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982) (“If a

state prisoner alleges no deprivation of a federal right, § 2254 is simply

inapplicable.”).

III. GROUNDS FOR RELIEF

Talbert seeks habeas relief based on the following grounds:

Ground One: The PCRA court erred in denying him relief on Sixth

Amendment right effective assistance of counsel grounds when trial

counsel testified at the PCRA hearing that he was “ineffective on

multiple levels.”

Ground Two: Trial counsel was ineffective in failing to discuss with

him and his family any witnesses who would testify and establish his

innocence.

Ground Three: Trial counsel violated his right to effective assistance

of counsel based on “complete failure to have in place any trial

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strategy, to discuss any trial strategies with his client, or do any

pretrial research and investigation.”

Ground Four: Trial counsel was ineffective in failing to partake in

any pretrial discussion with him and his family regarding questions

that should be asked of trial witnesses.

Ground Five: Trial counsel failed to investigate, interview, and

arrange to have witnesses at trial including the case worker from

children and youth, individuals from York Hospital, and Detective

Hopple.

Ground Six: Trial counsel vailed to engage in adequate pretrial

preparation and failed to adequately cross-examine any of the state’s

witnesses.

Ground Seven: Trial counsel’s failure to obtain a medical expert in

Asperger’s Disorder and failure to conduct research in this field which

hampered his ability to cross-examine the state’s medical expert.

Ground Eight: Trial counsel failed to prepare and cross-examine the

victim about her multiple inconsistent statements made during all

stages of the proceedings.

Ground Nine: Trial counsel failed to conduct any pre-trial

investigation, research, and to communicate with his family about

evidence that clearly would have proven his innocence.

Ground Ten: The PCRA court violated his due process rights in

failing to afford him relief based on newly discovered evidence that

would have proven his innocence.

(Doc. 1, pp. 5, 7, 9-11, 13, 15, 17, 19; Doc. 1-1, pp. 1, 3).

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IV. DISCUSSION

A. Exhaustion, Waiver, and Procedural Default

1. Exhaustion

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 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

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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.

2. Waiver

Additionally, a federal habeas court “will not review a question of federal

law decided by a state court if the decision of that court rests on a state law ground

that is independent of the federal question and adequate to support the judgment.

See, e.g., Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed.

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158 (1935); Klinger v. Missouri, 13 Wall. 257, 263, 20 L.Ed. 635 (1872). This rule

applies whether the state law ground is substantive or procedural. See, e.g., Fox

Film, supra; Herndon v. Georgia, 295 U.S. 441, 55 S.Ct. 794, 79 L.Ed. 1530

(1935).” See Coleman v. Thompson, 501 U.S. 722, 729 (1991), holding modified

by Martinez v. Ryan, 566 U.S. 1 (2012). The requirements of “independence” and

“adequacy” are distinct. Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004).

State procedural grounds are not independent, and 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. Coleman, 501

U.S. at 739-40. A state rule is “adequate” for procedural default purposes if it is

“firmly established and regularly followed.” Johnson v. Lee, ––– U.S. ––––, 136 S.

Ct. 1802, 1804, 195 L.Ed.2d 92 (2016) (per curiam) (citation omitted). These

requirements ensure that “federal review is not barred unless a habeas petitioner

had fair notice of the need to follow the state procedural rule,” and that “review is

foreclosed by what may honestly be called ‘rules’ ... of general applicability[,]

rather than by whim or prejudice against a claim or claimant.” Bronshtein v. Horn,

404 F.3d 700, 707-08 (3d Cir. 2005). “In the absence of the independent and

adequate state ground doctrine in federal habeas, habeas petitioners would be able

to avoid the exhaustion requirement by defaulting their federal claims in state

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court. The independent and adequate state ground doctrine ensures that the States’

interest in correcting their own mistakes is respected in all federal habeas cases.”

Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).

a. Pennsylvania Rules of Appellate Procedure 1925(b)

In Pennsylvania, “[w]here a defendant is ordered to file a concise statement

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and fails to

raise a particular matter within that statement, the defendant is deemed to have

waived that point of error on appeal.” Burnam v. Capozza, No. 20-CV-1800, 2020

WL 7130600, at *15 (W.D. Pa. Dec. 4, 2020) (citations omitted). Pennsylvania

“jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b)

sets out a simple bright-line rule, which obligates an appellant to file and serve a

Rule 1925(b) statement, when so ordered [and] any issues not raised in a Rule

1925(b) statement will be deemed waived.” Copper v. Superintendent of SCI-

Greene, No. CV 18-4577, 2019 WL 1796049, at *5 (E.D. Pa. Apr. 3, 2019), report

and recommendation adopted sub nom. Copper v. Superintendent of SCI-Green,

No. 18-CV-4577, 2019 WL 1787654 (E.D. Pa. Apr. 24, 2019), quoting Griggs v.

DiGuglielmo, No. 06-1512, 2007 WL 2007971, at *5 (E.D. Pa. July 3, 2007); Com.

v. Lord, 719 A.2d 306 (1998) (finding issues not included in a Pa.R.A.P.1925(b)

statement are deemed waived on appeal). Federal district courts in this district as

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well as a panel of the Third Circuit, have held that waiver of an issue for failure to

comply with PA.R.A.P. 1925(b) is an independent and adequate state ground of

decision that bars habeas review under Coleman. See Buck v. Colleran, 115 F.

App’x. 526, 528 (3d Cir. 2004) (not precedential); Brown v. Bickell, 2015 WL

1874220, at *25 (E.D. Pa. 2015) (citing cases).

Although Talbert raised various portions of the issues set forth in grounds

two through seven and nine, in his initial PCRA proceedings, he failed to include

them in his 1925(b) statement.2 (Doc. 12-2, pp. 14-25, 460-61). He also failed to

include his ground one claim in his 1925(b) statement. These claims are therefore

waived.

b. Pennsylvania Rule of Appellate Procedure 2116

Pennsylvania Rule of Appellate Procedure 2116 provides that “[n]o question

will be considered [on appeal] unless it is stated in the statement of questions

2 In his third, fourth, fifth, and sixth grounds, he raises claims of ineffectiveness emanating

from trial counsel’s pretrial strategy, investigation, and preparation, including, inter alia,

counsel’s failure to involve his family members (who he asserts were most aware of the

limitations he suffered due to his Asperger Syndrome diagnosis) in selecting witnesses. (Doc. 1;

Doc. 14, pp. 22-34). However, the only claim concerning counsel’s pretrial strategy,

investigation and preparation contained in his 1925 statement is that “[t]he lower court erred in

finding that trial counsel was not ineffective for failing to adequately investigate and prepare

pretrial as a result of the Defendant’s lack of communication and lack of understanding due to

his Asperger’s”, which Talbert addresses in ground four. (Id. at p. 461; Doc. 14, pp. 26-28).

This claim will be addressed in the merits section, infra. It is also noted that, at the PCRA

hearing, Talbert withdrew the claim contained in his seventh ground. (Doc. 12-2, pp. 134-35).

Lastly, in his Traverse, Talbert combines Grounds Nine and Ten. (Doc. 14, p. 41).

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involved or is fairly suggested thereby.” (Id. citing Rule 2116(a)). Courts within

the Third Circuit “have found Rule 2116 to be an independent and adequate state

court ground precluding federal review[.]” Litz v. Erie Cty. Dist. Attorney, No.

1:19-CV-00001, 2020 WL 3950151, at *7 (W.D. Pa. May 13, 2020), report and

recommendation adopted sub nom. Litz v. Pennsylvania, No. 1:19-CV-01, 2020

WL 3893787 (W.D. Pa. July 10, 2020) citing Boatright v. Gilmore, 2018 WL

3968416, *9 (citing Davis v. McGinley, 2018 WL 3596867, at *4 (E.D. Pa. Feb.

21, 2018), report and recommendation adopted, 2018 WL 3585171 (E.D. Pa. July

25, 2018); Vega v. State Com Inst. at Forrest, 2016 WL 4467924, at *4 (E.D. Pa.

July 14, 2016), report and recommendation adopted, 2016 WL 4430791 (E.D. Pa.

Aug. 22, 2016); Tyson v. Beard, 2013 WL 4547780, at *17-18 (E.D. Pa. Aug. 27,

2013).

In considering Talbert’s appeal of the denial of PCRA relief, the Superior

Court initially addressed his failure to include a Pennsylvania Rule of Appellate

Procedure 2116 “statement of questions involved” section in his brief. (Doc. 12-2,

p. 585, n.1). The court noted that, because caselaw allows the court to overlook a

Rule 2116(a) violation, to the extent that “appellant clearly and distinctly

‘identifies the specific issue[s]…in the argument section of [the] appellate

brief…[his] failure to comply does not impede our ability to review the issue[s],’

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and, accordingly we will not find waiver for failure to comply with Rule 2116 [as

to those issues].” (Id.) (citations omitted). The Superior Court then extracted and

considered those issues in the argument section of Talbert’s appellate brief that

were clearly and distinctly identified. Our review is limited to those issues.

In the eighth ground of his federal petition, he raises trial counsel’s

ineffectiveness in failing to prepare and cross examine the victim during trial about

“multiple inconsistent statements given by her during all stages of this matter to

include trial.” (Doc. 1; Doc. 14, p. 38). He presented the same issue on appeal but

the Superior Court limited its consideration to whether trial counsel was ineffective

for failing to adequately cross-examine the victim regarding her alleged prior

inconsistent statement “about: ‘whether penetration occurred [and] the specific

part of the body that she alleged [Appellant] penetrated and violated’ when the

victim was 12 years old and the two were in New Jersey, inside of Appellant’s

truck; ‘the number of times there were truck rides during which [the victim]

touched [Appellant];’ and, ‘the frequency of the incidents in the truck.’

Appellant’s Brief at 15-18.” (Doc. 12-2, p. 587). The court reiterated that even

though he claimed in his PCRA petition that trial counsel was ineffective for

failing to cross-examine the victim on a number of additional, alleged

inconsistencies, he “waived any claim that is not contained in the argument section

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of his brief. Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016)

(issues ‘not developed in the brief’s argument section will be deemed waived’).”

(Id. at p. 587, n.5). Our review is therefore confined to the claim specifically

identified by the Superior Court, subject to the limitations set forth in the section

infra concerning PA.R.A.P. 2119. Talbert waived all other claims in ground eight.

Likewise, in ground ten of the petition, Talbert cites to a number of instances

of after discovered evidence. (Doc. 1-1; Doc. 14, pp. 42-48). However, in his

appellate brief, he limited his argument “to a letter that was allegedly written by

the victim and dated November14, 2010.” (Doc. 10-2, p. 593). Our review is

limited to this issue; Talbert waived the remaining ground ten claims.

c. Pennsylvania Rules of Appellate Procedure 2119

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

argument presented on appeal be “followed by such discussion and citation of

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

authorities or to develop argument results in waiver. See, e.g., Williams v. Patrick,

No. 07-776, 2014 WL 2452049, at *7 (E.D. Pa. June 2, 2014) (explaining a

“doctrine of waiver” has been long incorporated into Rule 2119(a) (overruled on

other grounds); Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006)

(citing Commonwealth v. Burkett, 830 A.2d 1034, 1038 (Pa. Super. 2003) and

15

Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998)) (stating “Of

particular importance is the provision of Rule 2119(a) that a brief must contain a

developed argument augmented by citation to pertinent authorities. Arguments not

appropriately developed are waived.”). Federal courts in this circuit have

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

ground precluding federal review. See Rodriguez v. Giroux, No. CV 15-6182, 2017

WL 10821396, at *17 (E.D. Pa. Feb. 17, 2017), report and recommendation

adopted, No. CV 15-6182, 2019 WL 587314 (E.D. Pa. Feb. 12, 2019) (collecting

cases).

The Superior Court furthered whittled away at the claim that counsel was

ineffective in cross-examining the victim concerning inconsistent statements as

follows:

At the outset, Appellant has failed to identify any portion of the record

in which an inconsistency may be found regarding “the number of times

there were truck rides during which [the victim] touched [Appellant]"

and the frequency of the incidents in the truck.” See Appellant’s Brief

at7-10 and13-18. Therefore, these claims are waived. Commonwealth

v. Spotz,716 A.2d 580, 585 n.5 (Pa.1999) (“[the Pennsylvania Supreme

Court] has held that an issue will be deemed to be waived when an

appellant fails to properly explain or develop it in his brief”);

Commonwealth v, Perez, 93 A.3d 829, 838 (Pa. 2014) (to the extent

appellant’s claims fail to contain developed argument or citation to

supporting authorities and the record, they are waived”).

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(Doc. 12-2, pp. 587-88). The Perez case, upon which the Superior Court relied,

emphasized that “[t]he Rules of Appellate Procedure set forth the fundamental

requirements every appellate brief must meet. As we noted in Briggs:

The briefing requirements scrupulously delineated in our appellate

rules are not mere trifling matters of stylistic preference; rather, they

represent a studied determination by our Court and its rules committee

of the most efficacious manner by which appellate review may be

conducted so that a litigant’s right to judicial review ... may be properly

exercised. Thus, we reiterate that compliance with these rules by

appellate advocates ... is mandatory.

Briggs, at 343.” Perez, 93 A.3d at 837-38.

Based on the foregoing, the portion of ground eight challenging counsel’s

failure to cross-examine the victim on the “the number of times there were truck

rides during which [the victim] touched [Appellant]” and “the frequency of the

incidents in the truck” is waived. (Doc.12-2, p. 587).

3. Procedural Default

The failure to properly present claims to the state court generally results in a

procedural default. Lines v. Larkin, 208 F.3d 153, 150-60 (3d Cir. 2000). “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,

17

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 default and review the

claim in order to prevent a fundamental miscarriage of justice. Edwards, 529 U.S.

at 451; 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

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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).

Talbert fails to identify some objective external factor which prevented him

from complying with the state’s procedural rules in presenting these claims, and he

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

fundamentally unfair” as a result of a violation of federal law.3 Nor is there any

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

conviction of one who is actually innocent,” Murray, 477 U.S. at 496. Federal

review of these claim is foreclosed.

B. Non-Cognizable Claim

With regard to the fully exhausted claim in his tenth ground, whether he is

entitled to relief based on the after discovered evidence of a letter allegedly written

3 Talbert does not invoke Martinez v. Ryan, 566 U.S. 1, 12, 16-17 (2012). 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. Talbert does not assert that PCRA counsel was ineffective during the

initial phase of the PCRA proceedings.

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by the victim and dated November 14, 2010, he asserts that the PCRA court

“violated his due process rights in denying his newly discovered evidence claim

without a hearing in this matter to have a proper review of the facts and supporting

evidence.” (Doc. 12-2, p. 593; Doc. 1-1, p. 3; Doc. 14, pp. 42, 48). He indicates

that at the PCRA proceedings held on May 27, 2016 and July 29, 2016, several

items of after-discovered evidence were offered by the defendant. He further

argues that had the documents been available to Attorney Blake at trial, they would

have provided “substantive evidence of [the victim’s] motive for fabricating the

accusations and provided him “the ability to formulate a completely different

motive for fabrication of the allegations against the defendant that he, otherwise,

was not in a position to either investigate or prove.” (Doc. 14, p. 49).

Inasmuch as Talbert is raising a claim of error in his PCRA appellate

proceedings, he cannot do so. “[H]abeas proceedings are not the appropriate

forum for [Talbert] to pursue claims of error at the PCRA proceeding.” Lambert,

387 F.3d at 247; 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”). “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

20

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).

Because Talbert’s claim is based on alleged error that occurred during his PCRA

proceedings, it is not cognizable.

Further, to the extent he advances an actual innocence claim, we will address

it in the merits section below.

C. Merits of Federal Claims

The following claims are fully exhausted and ripe for consideration on the

merits:

Ground Four: Whether trial counsel was ineffective for not

adequately investigating and preparing for trial caused by Talbert’s

inability to communicate effectively as a result of him having

Asperger Syndrome. (Doc. 12-2, p. 589; Doc. 1, pp. 10, 11; Doc. 14,

pp. 26-28).

Ground Eight: Whether trial counsel was ineffective for failing to

cross-examine the victim regarding her alleged prior inconsistent

statements about “whether penetration occurred [and] the specific

part of the body that she alleged [Talbert] penetrated and violated”

when the victim was 12 years old and the two were in New Jersey,

inside of [his] truck[.]” (Doc. 12-2, p. 587; Doc. 1, p. 19, Doc. 14, p.

40).

21

Ground Ten: Whether “the PCRA court violated his due process rights in

denying his newly discovered evidence claim without a hearing in this

matter to have a proper review of the facts and supporting evidence.” (Doc.

12-2, p. 593; Doc. 1-1, p. 3; Doc. 14, pp. 42, 48).

As set forth supra, under the AEDPA, federal courts reviewing a state

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

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

the claim (1) “resulted in a decision that was contrary to, or involved an

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

Supreme Court of the United States” or (2) “resulted in a decision that was based

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

the State court proceeding.” 28 U.S.C. § 2254(d). “In considering a § 2254

petition, we review the ‘last reasoned decision’ of the state courts on the

petitioner’s claims.” Simmons v. Beard, 590 F.3d 223, 231–32 (3d Cir. 2009)

(citing Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008) ). Thus, “[w]e review

the appellate court decision, not the trial court decision, as long as the appellate

court ‘issued a judgment, with explanation, binding on the parties before it.’ ”

Burnside v. Wenerowicz, 525 F. App’x 135, 138 (3d Cir. 2013). However, when

the highest state court that considered the claim does not issue a reasoned opinion,

we “look through” that decision to the last reasoned opinion of the state courts, and

we apply a rebuttable presumption that the higher court adopted the same

22

reasoning as that set forth by the lower court. Wilson v. Sellers, — U.S. —, 138 S.

Ct. 1188, 1192 (2018).

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

functions as a guard against extreme malfunctions in the state criminal justice

systems, and not as a means of error correction,” Greene v. Fisher, 565 U.S. 34, 38

(2011) (internal quotations and citations omitted), “[t]his is a difficult to meet and

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

the benefit of the doubt.” Cullen, 563 U.S. at 181 (internal quotation marks and

citation omitted). The burden is on Talbert to prove entitlement to the writ. Id.

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

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

court confronts a set of facts that are materially indistinguishable from a decision

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

Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

“[A] state court decision reflects an ‘unreasonable application of such law’

only ‘where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with [the Supreme] Court’s precedents,’ a standard the

Supreme Court has advised is ‘difficult to meet’ because it was ‘meant to be.’

[Harrison v.] Richter, 562 U.S. 86, [ ] 102, 131 S.Ct. 770. As the Supreme Court

23

has cautioned, an ‘unreasonable application of federal law is different from an

incorrect application of federal law,’ Richter, 562 U.S. at 101, 131 S.Ct. 770

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

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

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

higher bar. Williams, 529 U.S. at 411, 120 S.Ct. 1495.” Mathias v. Superintendent

Frackville SCI, 876 F.3d 462, 476 (3d Cir. 2017). A decision is based on an

“unreasonable determination of the facts” if the state court’s factual findings are

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

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

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

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

judgment of a State court, a determination of a factual issue shall be presumed to

be correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

1. Ineffective Assistance of Counsel

The clearly established ineffective assistance of counsel standard as

determined by the Supreme Court of the United States is as follows:

Ineffective assistance of counsel claims are “governed by the familiar

two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104

24

S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Shelton v. Carroll, 464 F.3d 423,

438 (3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 521, 123

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

Strickland test qualifies as “clearly established Federal law, as

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

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

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

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

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

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

measure of attorney performance remains simply reasonableness under

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

is deferential:

A fair assessment of attorney performance requires that every

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

reconstruct the circumstances of counsel’s challenged conduct,

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

Because of the difficulties inherent in making the evaluation, a

court must indulge a strong presumption that counsel’s conduct

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

Id. at 689, 104 S.Ct. 2052

Not every “error by counsel, even if professionally

unreasonable, ... warrant[s] setting aside the judgment of a

criminal proceeding.” Id. at 691, 104 S.Ct. 2052. “Even if a

defendant shows that particular errors of counsel were

unreasonable, ... the defendant must show that they actually had

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

petitioner must show that he was prejudiced by counsel’s deficient

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

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

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

proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.”

Id. at 694, 104 S.Ct. 2052.

25

In assessing an ineffective assistance of counsel claim, “the

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

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

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

breakdown in the adversarial process that our system counts on to

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

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

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

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

Strickland standard ‘was incorrect but whether that determination was

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

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

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

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

standard.” Id.

The Superior Court recognized noted the following:

Counsel is…presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth

v. Rivera, 10A.3d1276, 1279 (Pa. Super. 2010). To satisfy this

burden, Appellant must plead and prove by a preponderance of the

evidence that:

(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his interests; and, (3) but

for counsel’s ineffectiveness, there is a reasonable probability that

26

the outcome of the challenged proceedings would have been

different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure

to satisfy any prong of the test for ineffectiveness will require rejection

of the claim.” Id.

(Doc. 12-2, p. 586). The Third Circuit has specifically held that the very

ineffectiveness assistance of counsel test relied upon by the Superior Court in this

matter is not contrary to the Supreme Court’s Strickland standard. See Werts v.

Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Talbert does not argue otherwise.

Because the Superior Court did not apply law contrary to clearly established

precedent, Talbert is entitled to relief only if he can demonstrate that its

adjudication involved an unreasonable application of Strickland, or was based on

an unreasonable determination of the facts in light of the evidence.

a. Ground Four

In ground four, Talbert contends that that counsel had a duty to make

reasonable investigation into all aspects of his case which “includes understanding

how to work with his client.” (Doc. 14, p. 28). He argues that “[c]ounsel was fully

aware that he did not understand and the doctor who spent very little time with his

client was wrong in his diagnosis.” (Id.). In support of his argument, he cites to

the transcript of the PCRA evidentiary hearing held on July 19, 2016, containing

27

the following segments of the district attorney’s cross-examination of trial counsel,

Attorney Blake, and redirect examination by PCRA counsel:

Cross Examination

Q. I know we have covered this ground already, I just have a couple of

very brief follow-up questions about communication with Mr. Talbert.

A. Sure.

Q: Okay. During trial, did he ever ask you to ask additional questions

to witnesses?

A. I think he made some type of comment like he wished I asked more

at some point. I don’t believe he gave me any kind of specific areas of

questions to ask.

Q. Prior to the commencement of trial, did you and he talk about voir

dire process and things of that nature?

A. We did.

Q. And did you talk about calling witnesses with respect to how you

would handle cross examination?

A. We did.

Q. And did he give you any indication at that time that he didn’t

understand?

A. I can’t say that he ever said – he made a statement like that. I don’t

think he ever said to me, I don’t understand or anything of that nature.

What would typically happen, I would give him the information and he

sort of never looked at you. Part of his mannerism he would look to the

side and he gave the appearance he understood so.

28

Q. So, to be fair, you had no reason to suspect that he wasn’t

comprehending what you were telling him?

A. I think that’s fair.

Redirect Examination

Q. Attorney Blake, can you explain why it is that your answer in

today’s hearing may differ than the answer you previously gave?

A. Absolutely. There were clear concerns. When Paul started on my

caseload, I had a letter from the counselor in Maryland and from

observations I had, we did the motion for reasonable accommodations.

He then went to a professional, who told me he was competent.

At that point I sort of had to follow his lead. I am not a

psychologist. But in the beginning, even though all along I always had

concerns. I am not a psychologist. I had to go along [with] them saying

he was competent.

I always felt like Paul struggled and, you know, he didn’t seem

to be – he didn’t engage you in a back and forth conversation. You

would engage him in a conversation, he would bring up cars and other

things. We never could stay on topic and developing issues.

I was told by a psychologist that he was competent, so I had to

go forward that way. That’s outside my skill set.

(Doc. 12-2, pp. 291-94; Doc. 14, pp. 27-28).

Talbert’s challenge to his own competency by way of a claim for ineffective

assistance is without merit. To be competent to stand trial, a person must have “a

sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding” and must possess “a rational as well as factual

understanding of the proceedings against him.” Dusky v. United States, 362 U.S.

402 (1960). In turn, it is well-settled that an attorney renders ineffective assistance

29

by failing to inquire into a defendant’s competency and failing to request a

competency hearing if there are sufficient indicia of incompetence to give

objectively reasonable counsel reason to doubt the defendant’s competency. See

Jermyn Horn, 266 F.3d 257, 283–84, 300 (3d Cir. 2001). Significantly,

“competency is a state court factual finding that, if supported by the record, is

presumed correct.” Taylor v. Horn, 504 F.3d 416, 430 (3d Cir. 2007), citing

Thompson v. Keohane, 516 U.S. 99, 111 (1995) (citing Maggio v. Fulford, 462

U.S. 111, 118 (1983)); Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per

curiam)). As such, the state court’s findings as to competency, explicit or implicit,

are presumed correct, unless the habeas petitioner can rebut the presumption by

clear and convincing evidence. Taylor, 504 F.3d at 433; see also 28 U.S.C. §

2254(e)(1).

In considering the issue, the Superior Court noted that, at trial counsel’s

request, Talbert received a competency hearing and that his own expert deemed

him competent to stand trial. The court also quoted Talbert’s expert’s report at

length:

[Appellant’s] current therapist went so far as to diagnose [Appellant]

with Asperger’s Disorder. [Appellant] has many features of Asperger’s

Disorder. A hallmark symptom is his social autism; however,

[Appellant] fails to meet the criteria for repetitive restrictive and

stereotype patterns of behavior. While they may be present, there is no

evidence of them in the materials presented to this examiner.

30

Furthermore, Asperger’s Disorder is a diagnosis typically diagnosed in

childhood or adolescence. [Appellant] was treated in adolescence for

depression and anxiety. At no time was he diagnosed with any of the

autism spectrum disorders. These would clearly have developed by that

point.

…

[Appellant] was able to relate the charges and allegations against him.

He was able to demonstrate understanding of his possible and probable

sentences. He knew who his attorney was and the Judge on the case.

He was able to define a court of law. He was able to identify the

various components of a court of law and describe their functions.

These included judge, jury, prosecuting attorney, defense attorney,

defendant, stenographer, and witness. He was able to define a plea. He

was able to identify the various pleas and describe them well. These

included guilty, not guilty, nolo contendere, not guilty by reason of

insanity, guilty but mentally ill[,] and plea bargain. To those of which

he was not immediately familiar, he was readily educated.

…

The defendant was able to demonstrate the capacity to communicate a

choice. He had the ability to understand the information relevant to his

case. He had the ability to understand his situation and its relevant

consequences. He was able to manipulate information rationally,

relevantly and apply it to a personal value system. The defendant has

the verbal articulation skills required to cooperate with his attorney in

the preparation of his defense and to challenge his accusers. This

opinion is considered stable over time.

(Doc. 12-2. Pp. 590-91, quoting PCRA Court Opinion; 11/15/ 16, at 30-31, citing

Forensic Psychiatric Evaluation, 1/22/13, at 3-4).

The court also considered trial counsel’s PCRA hearing testimony that there

were a lot of things counsel asked for and discussed with his client, that Talbert

had the appearance that he understood and counsel had no reason to suspect that he

31

was not comprehending what he was telling him, that Talbert assisted in his own

defense and “that he explained and discussed with [Talbert] the voir dire process,

calling witnesses, cross-examination, and general trial strategy, and that [Talbert]

appeared to understand.” (Id. at pp. 591-92). Finally, the court also considered his

testimony at his colloquy concerning whether his decision not to testify was

knowing and intelligent, during which he “answered the questions appropriately

and declared that he understood what was being said.” (Id. at 591).

This particular ineffective assistance of counsel claim hinges on his

underlying claim that he was incompetent. However, the state courts’ factual

determination, that Talbert was competent to stand trial, is presumed correct under

§ 2254(e)(I). Talbert has failed to rebut the presumption with clear and convincing

evidence. Review of the Superior Court’s determination that the underlying

competency claim lacked arguable merit, and hence, counsel could not be deemed

ineffective in failing to adequately communicate with him or prepare and

investigate for trial on this basis, coupled with the lack of evidence that he was

unable to assist in his defense or unable to communicate with counsel, was a

reasonable application of Strickland. Additionally, it constitutes an objectively

reasonable determination of the facts in light of the above detailed evidence

presented to the state court. Talbert is not entitled to relief on this claim.

32

b. Ground Eight

We next address the claim that “trial counsel was ineffective for failing to

cross-examine the witness regarding ‘whether penetration occurred [and] the

specific part of the body that she alleged [he] penetrated and violated’ when the

victim was 12 years old and the two were inside of Appellant’s truck, in New

Jersey.” (Doc. 1; Doc. 14, pp. Doc. 12-2, p. 588). During trial, the victim

initially testified to a single incident that took place in his truck in New Jersey

when she was approximately twelve years old. (Doc. 12-1, p. 132). She testified

that this was the first time Talbert approached her and that he attempted to have

intercourse with her in the sleeper portion of his “tractor trailer type truck.” (Id.).

She could not recall whether there was vaginal penetration. On cross-examination,

Attorney Blake clarified with the victim that “[y]ou started talking about some

matters that happened in a truck in New Jersey, and that’s not part of the case that

we’re here for…”, but did not cross examine her on whether there was penetration.

(Doc. 12-1, p. 139). Talbert argues that “[t]he failure to cross-examine the [victim]

about the difference between he[r] statement alleging penetration/attempted

penetration of the vigina [sic] versus her anus is critical, as they involve (2)

distinctly different parts of the anatomy that cannot be reconciled.” (Doc. 14, p.

40).

33

The Superior Court addressed this claim in succinct fashion noting that the

claim fails because he was not on trial for the alleged incident that took place in the

truck while in New Jersey and, to the extent that there was testimony, it was

admissible for the limited purpose of demonstrating Talbert’s “passion or

propensity for illicit sexual relations with [the victim]. PCRA Court Opinion,

11/15/16, at 7; see also Commonwealth v. Dunkle, 602 A.2d 830, 839 (Pa. 1992)

(evidence of prior sexual misconduct with the victim is admissible to show a

passion or propensity for illicit sexual relations with the particular person

concerned in the crime on trial”) (internal quotations, citations, and corrections

omitted).” (Doc. 12-2, p. 588). The court further observed “while there may have

been slight variances in statements the victim gave during interviews and what she

testified to at trial, these variances were de minimis and reasonable given that the

alleged incident occurred about seven years prior to the trial. Thus, Appellant was

not prejudiced by trial counsel’s failure to cross-examine the victim on de minimis

inconsistencies on a collateral matter.” (Id. at 587, 588).

This determination is a reasonable application of the prejudice prong of

Strickland and constitutes an objectively reasonable determination of the facts in

light of the testimony elicited in the state court proceedings. Talbert is not entitled

to relief on this claim.

34

c. Ground Ten

We next consider Talbert’s claim that the PCRA court violated his due

process rights “by its denial of the Newly Discovered Evidence that would of [sic]

proven his innocence….” (Doc. 1-1, p. 3). The Supreme Court treats actual

innocence as a gateway for consideration of procedurally defaulted claims. See

McQuiggin v. Perkins, 569 U.S. 383 (2013); Schlup v. Delo, 513 U.S. 298, 327–29,

115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (requiring a showing “that it is more likely

than not that no reasonable juror would have convicted [the petitioner] in the light

of the new evidence”). It has not yet recognized the existence of a freestanding

claim of actual innocence. See McQuiggin, 569 U.S. at 392, citing Herrera v.

Collins, 506 U.S. 390, 400 (1993) (explaining “[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.”). However, as observed in a non-

precedential Third Circuit opinion, “the Herrera Court left open the possibility of a

freestanding claim of actual innocence (particularly in the capital context):

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

35

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.

[Herrera, 560 U.S.] at 417, 113 S.Ct. 853 (emphasis added). Ultimately, the

petitioner did not make a sufficient showing of innocence because the affidavits he

submitted raised credibility issues more appropriate for a jury. Id. at 418–19, 113

S.Ct. 853.” Wright v. Superintendent Somerset SCI, 601 F. App’x 115, 120 (3d

Cir. 2015).

Like the petitioner in Herrera, Talbert does not seek excusal of a procedural

error; rather, he argues that newly discovered evidence would have proven his

innocence. We conclude that, even if a freestanding claim of actual innocence is

cognizable, the merits of Talbert’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 Superior considered the claim as follows:

In his last claim, Appellant contends he is entitled to relief based

on exculpatory after-discovered evidence. See 42 Pa.C.S.A. §

9543(a)(2)(vi). To obtain relief on this basis, Appellant must plead and

prove by a preponderance of the, evidence the “unavailability at the

time of trial of exculpatory evidence that has subsequently become

available and would have changed the outcome of the trial had it been

introduced.” Id. To obtain relief based on after-discovered evidence,

an appellant must show that the evidence:

36

(1) 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 to impeach

the credibility of a witness; and (4) would likely result in a

different verdict if a new trial were granted.

Commonwealth v, Foreman, 55 A. 3d 532, 537 (Pa. Super. 2012), citing

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). To determine

whether the evidence is “of such nature and character” to compel a

different verdict in a new trial, a court should consider “the integrity of

the alleged after-discovered evidence, the motive of those offering the

evidence, and the overall strength of the evidence supporting the

conviction.” Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super.

2010), appeal denied, 14 A.3d 826 (Pa. 2010).

…

[The h]andwritten letter from [the victim] to her “Dad”,

presumably [Appellant’s brother, Glenn Talbert], dated November

[14], 2010, in which she states, among other things, that “. . . mom

is protective of me, even though she doesn’t know me.”

Additionally, the letter makes no reference to the incidents that

allegedly occurred between her and [Appellant].

Appellant’s PCRA Petition, 2/8/16, at ¶26e.

It is unknown whether the letter was intended for Appellant or

Appellant’s brother. Appellant argues that if the letter were intended

for his brother, “the fact that the alleged victim fails to reveal alleged

sexual abuse tends to make the occurrence of the alleged abuse less

likely. Appellant’s Brief at 29. If, however, the letter were intended for

Appellant, he argues, the fact that the alleged victim would write a letter

of such sentiments to the person allegedly abusing her likewise makes

the occurrence of the alleged abuse less likely.” Id.

First, the letter was found by Appellant’s sister in the house

where Appellant lived. At the PCRA hearing, Appellant’s sister

testified that it is possible the letter could have been found prior to trial,

but was not. N.T. PCRA Hearing, 7/29/16, at 29. The letter was not

signed by the victim and Appellant did not call the victim as a witness

37

during the PCRA hearing to verify she authored the letter. It is

unknown who the intended recipient of the letter was. Furthermore, the

fact that the letter does not mention the sexual abuse is not significant,

as the absence of the statement is (at most) of negligible relevancy to

prove the absence of the abuse. Accordingly, the PCRA court properly

denied Appellant relief on this claim.

(Doc. 12-2, pp. 592-94).

The state courts reasonably concluded that Talbert failed to demonstrate that

the November 14, 2010, letter met the four elements required to obtain relief based

on after-discovered evidence. Further, to the extent that he asserts actual

innocence, even if such a claim was available to Talbert, he wholly failed to

establish that, in light of the new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 329.

Upon review of the record, the Court concludes that Talbert has failed to

demonstrate that the state court’s disposition of his after-discovered evidence

claims was contrary to, or was an unreasonable application of, United States

Supreme Court precedent. Nor has he demonstrated that the state courts’

determination of the facts were unreasonable in light of the evidence.

No relief is warranted on this claim.

V. CONCLUSION

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

pursuant to 28 U.S.C. § 2254 will be denied.

38

VI. 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).

Talbert fails to demonstrate that a COA should issue.

The denial of a certificate of appealability does not prevent him from

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

certificate of appealability from the Third Circuit Court of Appeals. See FED. R.

APP. P. 22(b)(1).

A separate Order will enter.

39