Jones v. Wetzel

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BARTON JONES, :

Petitioner :

: No. 1:20-cv-1823

v. :

: (Judge Rambo)

JOHN E. WETZEL, et al., :

Respondents :

MEMORANDUM

Presently before the Court is pro se Petitioner Barton Jones (“Petitioner”)’s

amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc.

No. 13.) Respondents filed a response to the § 2254 petition on July 19, 2021. (Doc.

Nos. 17, 18.) For the following reasons, Petitioner’s § 2254 petition will be denied.

I. BACKGROUND

A. Procedural History

On August 31, 2017, following the conclusion of a jury trial in the Court of

Common Pleas for Franklin County, Pennsylvania, Petitioner was convicted of third-

degree murder, abuse of a corpse, false report to law enforcement authorities,

tampering with physical evidence, and two (2) counts of criminal conspiracy. (Doc.

No. 17-2.) Petitioner also pled guilty to one count of prohibited possession of a

firearm. (Id.) The Superior Court of Pennsylvania set forth the background of the

case as follows:

This case arises from the shooting death of Lucas Coons. We take the

following facts and procedural history from our independent review of

the certified record. On the night of November 24, 2014, Coons told

his friend, Tyler Larson, that he was going to purchase oxycodone pills

using counterfeit money, and that he had done this once before. Larson

unsuccessfully attempted to dissuade Coons from moving forward with

this plan.

Coons went to [Petitioner’s] home to purchase the pills, and met with

him in the basement. [Petitioner] confirmed that he had the drugs, and

Coons handed him the counterfeit cash. The men argued about the

counterfeit money, and [Petitioner] pulled a loaded gun from his front

pocket. [Petitioner] shot Coons, causing him to sustain a contact wound

to the center of his chest. [Petitioner] then asked his adult son, Patrick

Holden, who lived with him and was home at the time, to help him

move Coons’ body and clean up the blood. They loaded Coons’ body

into Coons’ car, and [Petitioner] drove away.

[Petitioner] parked in a restaurant parking lot, and, using a disposable

telephone, made a false report to 911 of men fighting. He abandoned

the vehicle and walked to his girlfriend’s home. He then returned to his

house and disposed of Coons’ shoes in a dumpster, tore up the

counterfeit money and let it blow out of his car window, and drove up

the interstate and threw his gun a river. The following morning,

[Petitioner] told Holden to “say [Petitioner] was upstairs in the kitchen

cooking that night[,]” if anyone asked, and indicated that Coons had

“mess[ed] with [his] livelihood.” [Petitioner] turned himself into

authorities on December 4, 2014, after he learned that a warrant had

been issued for his arrest.

(Doc. No. 17-6.) On October 4, 2017, the trial court sentenced Petitioner to an

aggregate term of not less than 342 and not more than 720 months’ incarceration.

(Id.) Petitioner subsequently appealed to the Superior Court of Pennsylvania,

arguing that the evidence produced at trial was insufficient to support his third-

degree murder conviction. (Id.) On March 27, 2018, the Superior Court affirmed

Petitioner’s judgment of sentence. (Id.) On August 15, 2018, the Supreme Court of

Pennsylvania denied Petitioner’s petition for allowance of appeal. (Doc. No. 17-7.)

On August 15, 2019, Petitioner filed a pro se Post Conviction Relief Act

(“PCRA”) petition. (Doc. No. 17-8.) In his PCRA petition, Petitioner asserted that:

(1) trial counsel was ineffective for failing to file a motion to have the charges

dismissed for violation of Pennsylvania’s speedy trial rule (Rule 600); and (2)

counsel was ineffective for failing to object to prosecutorial misconduct when the

prosecution allegedly lied about the presence of non-law enforcement witnesses and

when Patrick Holden testified that he had made no promises or deals in exchange

for his testimony. (Id.) Counsel was appointed to represent Petitioner, and on

October 4, 2019, counsel filed a motion to withdraw pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. Ct. 1988), alleging that there was no merit to Petitioner’s PCRA petition.

(Doc. No. 17-9.) Counsel identified seven (7) ineffective assistance of counsel

issues that could be the basis of relief, namely, that counsel was ineffective for

failing to: (1) file a Rule 600 motion; (2) object to a violation of the sequestration

order; (3) object when Patrick Holden “lied about his deal”; (4) challenge a juror

who worked for the Pennsylvania State Police; (5) challenge a juror who was related

to a witness; (6) object to the prosecution’s characterization of evidence during

closing arguments; and (7) object to Petitioner being required to wear a prison

armband during trial. (Id.) On November 14, 2019, the PCRA court granted

counsel’s request to withdraw and informed Petitioner of its intent to dismiss his

PCRA petition without a hearing. (Id.) Petitioner filed his objections to the PCRA

court’s notice on November 25, 2019. (Doc. No. 17-10.) On December 2, 2019, the

PCRA court dismissed Petitioner’s PCRA petition. (Doc. No. 17-11.)

Petitioner subsequently appealed to the Superior Court and filed a brief that

consisted only of various court documents. (Doc. No. 17-12.) On August 14, 2020,

the Commonwealth filed a motion to quash Petitioner’s appeal for failing to comply

with Rule 2101 of the Pennsylvania Rules of Appellate Procedure. (Doc. No. 18.)

On September 11, 2020, the Superior Court granted the Commonwealth’s motion

and quashed Petitioner’s appeal pursuant to Rule 2101. (Doc. No. 17-14.)

Petitioner initiated this matter on October 7, 2020 by filing a § 2254 petition

that vaguely asserted that his Sixth and Fourteenth Amendment rights had been

violated. (Doc. No. 1.) In an Order dated December 2, 2020, the Court directed

Petitioner to file an amended § 2254 petition setting forth specific grounds for relief

and specifying the facts and allegations supporting such grounds, and advised

Petitioner that if he failed to do so, his original § 2254 petition (Doc. No. 1) was

subject to dismissal for lack of specificity. (Doc. No. 7.) Petitioner subsequently

received a sixty (60)-day extension of time to file an amended petition. (Doc. Nos.

8, 9.) On March 22, 2021, an individual representing herself as having power of

attorney for Petitioner filed an amended § 2254 petition. (Doc. No. 10.) In an Order

dated March 24, 2021, the Court dismissed the amended petition filed on Petitioner’s

behalf and directed Petitioner to file an amended petition on his own behalf within

thirty (30) days. (Doc. No. 11.) Petitioner filed his amended § 2254 petition on

April 29, 2021. (Doc. No. 13.)

B. Habeas Claims Presented

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

1. Counsel was ineffective for allowing a violation of Petitioner’s Sixth

Amendment speedy trial rights without objecting to such violation; and

2. Prosecutorial misconduct occurred when the prosecution failed to

correct allegedly false testimony given by a key witness.

(Doc. No. 13 at 5-6.)

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

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

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

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

responsibility for vindicating constitutional rights. Federal intrusions into state

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

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

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

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

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

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

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

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

proceedings, habeas relief cannot be granted unless:

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

contrary to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the

United States; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.

Id. § 2254(d).

III. DISCUSSION

A. Exhaustion and Procedural Default

The Court must first determine whether Petitioner’s grounds for relief

presented in his amended § 2254 petition have been exhausted in the state courts

and, if not, whether circumstances exist to excuse Petitioner’s procedural default of

his claims. Respondents maintain that Petitioner’s grounds for relief are

procedurally defaulted because the Superior Court quashed Petitioner’s appeal from

the PCRA court’s dismissal of his PCRA petition. (Doc. No. 17 at 9.)

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.

As noted supra, Petitioner appealed the PCRA court’s dismissal of his PCRA

petition to the Superior Court. However, the Superior Court granted the

Commonwealth’s motion to quash the appeal for failure to file a proper brief. See

Pa. R. App. P. 2101 (“Briefs and reproduced records shall conform in all material

respects with the requirements of these rules as nearly as the circumstances of the

particular case will admit, otherwise they may be suppressed, and, if the defects are

in the brief or reproduced record of the appellant and are substantial, the appeal or

other matter may be quashed or dismissed.”). Rule 2101 is an independent and

adequate state rule. See Price v. Garman, No. 1:17-cv-1103, 2018 WL 3546558, at

*5 (M.D. Pa. July 24, 2018) (citing Betha v. Lane, No. 17-3078, 2018 WL 3119868,

at *3 (E.D. Pa. Apr. 4, 2018)); Sistrunk v. McGinley, No. 3:16-cv-815, 2017 WL

5589048, at *9 (M.D. Pa. Nov. 2, 2017), Report and Recommendation adopted, 2017

WL 5587111 (M.D. Pa. Nov. 20, 2017). Thus, Petitioner has not exhausted his

grounds for relief, and these grounds are procedurally defaulted because any second

PCRA petition and subsequent appeal by Petitioner would be untimely. See 42 Pa.

Cons. Stat. Ann. § 9545(b) (providing that such a petition must be filed within one

(1) year of the date on which the judgment becomes final). Consequently, because

these claims are procedurally defaulted, the Court can entertain the merits only if

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

Petitioner advances no compelling argument to establish that cause for the

default exists or that a fundamental miscarriage of justice will occur if the Court does

not consider these arguments. See Coleman, 501 U.S. at 750. Rather, Petitioner

suggests that because of the COVID-19 pandemic and his resulting inability to

access the law library, he could not file a timely appeal to the Supreme Court of

Pennsylvania. (Doc. No. 13 at 8.) Petitioner, however, does not contend that this

prohibited him in any way from filing a proper brief with the Superior Court.

Moreover, Petitioner provides no explanation as to why he did not file a proper

supporting brief with the Superior Court. Furthermore, in Pennsylvania, a PCRA

petition need not appeal his PCRA petition to the Supreme Court of Pennsylvania;

rather, a proper appeal to the Superior Court constitutes full exhaustion for purposes

of § 2254. See Lambert, 387 F.3d at 233-34; Beatty v. Garman, No. 3:19-cv-1802,

2020 WL 2616708, at *3 (M.D. Pa. May 22, 2020).

Petitioner’s grounds for relief are, therefore, subject to dismissal as

procedurally defaulted. Although they are procedurally defaulted, Respondents also

assert that they are subject to dismissal for being vague and unpersuasive. (Doc. No.

17.) The Court addresses Respondents’ argument below.

B. Merits of Petitioner’s Claims

As noted supra, Petitioner asserts that trial counsel was ineffective for failing

to object to violations of his Sixth Amendment speedy trial rights and that

prosecutorial misconduct occurred when the prosecution failed to correct false

testimony given by a key witness. (Doc. No. 13 at 5-6.) Petitioner, however, fails

to set forth facts suggesting how his speedy trial rights were violated. Moreover, he

fails to set forth facts identifying the key witness and what false testimony that key

witness allegedly provided. Such “[v]ague and conclusory allegations . . . may be

disposed of without further investigation.” See Johnson v. United States, 294 F.

App’x 709, 710 (3d Cir. 2008); Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir.

1991). Nevertheless, the Court will address the merits of Petitioner’s claims below.

1. Ground One

As his first ground for relief, Petitioner asserts that trial counsel was

ineffective for failing to object to an alleged violation of his Sixth Amendment

speedy trial rights. (Doc. No. 13 at 5.) 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.

As noted supra, the Superior Court quashed Petitioner’s appeal from the

dismissal of his PCRA petition. “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)). The PCRA court considered Petitioner’s ineffective

assistance claim in its opinion granting counsel’s motion to withdraw and in its

opinion dismissing Petitioner’s PCRA petition. The Court, therefore, will consider

those opinions when considering Petitioner’s ineffective assistance claims. With

respect to this ground for relief, the PCRA court stated:

[Petitioner’s] first contention is that he was not afforded a speedy trial

under Pa. R. Crim. P. 600. Thus, he argues trial counsel was ineffective

for failing to seek a dismissal of the charges under that rule.

Rule 600 establishes a mechanical deadline that requires the

Commonwealth bring a case to trial within 365 days from the filing of

the complaint. Pa. R. Crim. P. 600(A)(2)(a). This time only runs when

the Commonwealth causes delay and fails to exercise due diligence.

All other time is excluded. Pa. R. Crim. P. 600(C)(1). Due diligence

is fact and case specific, requiring the Commonwealth to be prepared,

to keep records and notes, and be ready to try the case on time.

Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa. Super. 2007).

Litigation of pre-trial motions that causes delay is excluded time, so

long as the Commonwealth exercises due diligence in litigating them.

See Commonwealth v. Hill, 736 A.2d 578, 588 (Pa. 1999). These

situations adjust the run-date by which the Commonwealth must be

ready to present their case. Once both sides have prepared their cases,

the trial can be set at the “earliest possible date consistent with the

court’s business” without violating Rule 600, even if that date is after

the adjusted run date. Commonwealth v. Crowley, 466 A.2d 1009, 1014

(Pa. 1983).

The Criminal Complaint was filed on December 3, 2014. However,

[Petitioner] filed several continuances and pretrial motions which

caused adjustments to the timeline. On April 1, 2015, [Petitioner]

requested a continuance of his arraignment to May 13, 2015. On June

17, 2015, [Petitioner] requested a continuance to August 21, 2015. On

August 20, 2015 [Petitioner] requested another continuance to October

14, 2015. On September 30, 2015, [Petitioner] filed a motion to sever

two of his charges. The resolution of that issue involved an appeal by

the Commonwealth to the Superior Court which was not resolved until

August 29, 2016. [Petitioner’s] trial could not begin until the severance

issue had been resolved, the appeal period to the Supreme Court

expired, and the record returned to this court. See Pa. R.A.P. 2591(a).

The record was not remanded until October 11, 2016. Nothing in the

record indicates that the Commonwealth pursued the appeal with

anything less than due diligence. Thus this period adjusted the Rule

600 timeline. At that point, effectively 155 days had passed.

After resolution of the appeal the next available date for pre-trial

conferences was November 3, 2016. The case was delayed at that time

for disclosure of [Petitioner’s] expert report. On March 9, 2017, pretrial

matters concluded. Both [Petitioner] and the Commonwealth were

prepared for trial at that time. However, the next available trial date on

the Court’s calendar sufficient for the case was not until August 29,

2017. This was outside of the adjusted run date. However, the failure

to hold trial before the adjusted run date was not due to a failure of due

diligence on the part of the Commonwealth. The Commonwealth was

ready within the adjusted run date. The proceedings complied with

Rule 600. Thus a motion alleging a violation of that rule would have

been meritless; trial counsel was not ineffective for failing to file such

a motion.

(Doc. No. 17-9.)

The Sixth Amendment guarantees a defendant’s right to a speedy trial. When

considering whether that right has been violated, courts must consider the following

four (4) factors: (1) the length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of the right; and (4) prejudice to the defendant. See Barker v.

Wingo, 407 U.S. 514, 530 (1972). The Supreme Court has explained that “[t]he

length of the delay is to some extent a triggering mechanism. Until there is some

delay which is presumptively prejudicial, there is no necessity for inquiry into the

other facts that go into the balance.” Id. Generally, delays of one (1) year or more

may trigger analysis of the other Barker factors. See Doggett v. United States, 505

U.S. 647, 652 n.1 (1992).

Upon review of the record, the Court concurs with the PCRA court’s thorough

opinion regarding Petitioner’s ineffective assistance of counsel claim. The delay of

over one (1) year from Petitioner’s arrest to trial does trigger analysis of the other

Barker factors. As noted by the PCRA court in its analysis of Petitioner’s Rule 600

claim, Petitioner requested several continuances, and the time for litigating pretrial

motions, including the Commonwealth’s appeal regarding Petitioner’s motion to

sever, was excluded. Nothing in the record suggests that Petitioner ever asked

counsel to file a speedy trial request, either based upon Rule 600 or the Sixth

Amendment. Furthermore, nothing in the record demonstrates that Petitioner’s

ability to present a defense was impaired in any way due to the delay, or that he

suffered any other prejudice. Counsel cannot be deemed ineffective for failing to

raise a meritless claim. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000).

In sum, upon review of the record, the Court concludes that Petitioner has not

demonstrated that the state court’s disposition of his second ground for relief 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, his first ground for relief

will be dismissed.

2. Ground Two

As his second ground for relief, Petitioner asserts that prosecutorial

misconduct occurred when the prosecution failed to correct false testimony given by

a key witness. (Doc. No. 13 at 6.) Presumably, Petitioner is referring to testimony

provided by Patrick Holden. With respect to this claim, the PCRA court stated:

[Petitioner’s] third issue is an accusation that Patrick Holden offered

false testimony in regards [to] a purported agreement he made with the

prosecution. Holden testified that no promises were made for his

testimony. [Petitioner] believes this testimony to be false as the

Commonwealth informed Holden that testimony offered in

[Petitioner’s] trial would be considered in resolving Holden’s own

charges.

[Petitioner] has cited to Commonwealth v. Strong, 761 A.2d 1167 (Pa.

2000) in support of this contention. However, that case differs in two

crucial respects. First, in Strong there was an “understanding” between

the Commonwealth and an accomplice that favorable testimony would

lead to leniency. Id. at 1174. While not a formal, binding plea

agreement, the Commonwealth allowed the accomplice to plead guilty

to fewer charges and he received a lesser sentence than he would have

faced absent his testimony. Id. Secondly, the testimony of the

accomplice and the defendant materially differed. Id. at 1175. It was

only the accomplice’s testimony that provided the crucial information

necessary for the defendant’s conviction. Id. In light of the importance

of the testimony, the failure to reveal these negotiations to defense

counsel and alert the jury to the agreement was a due process violation.

Id. [at] 1174-75.

The facts of Strong are clearly inapposite to the present case. Here there

is no evidence the Commonwealth made any promise of leniency to

Holden. The Commonwealth never charged Holden with the killing,

only with helping clean up and dispose of evidence after the fact.

Nothing indicates he was given a reduced sentence for his testimony;

he was only told the Commonwealth would consider his testimony.

Critically, [Petitioner’s] own testimony does not materially differ from

Holden’s testimony. While some minor details differ, large portions of

the testimony support a virtually identical series of events. It is unclear

what prejudice [Petitioner] suffered under these circumstances. The

case at bar does not establish the due process violation found in Strong.

Nothing indicates the truth determining process of [Petitioner’s] trial

was undermined.

Additionally, the record reflects that trial counsel requested a jury

instruction on accomplice liability, and that such an instruction was

given to the jury. The jury was well aware that any discrepancies that

did exist between Holden’s testimony and [Petitioner’s] may have been

due to the charges Holden faced.

(Doc. No. 17-9) (internal citations to the record omitted). The PCRA court further

stated:

Assuming arguendo that Holden testified falsely regarding a purported

agreement with the Commonwealth, [Petitioner] cannot establish

prejudice. Holden’s trial testimony was substantially and materially

consistent with [Petitioner’s] own testimony. The very purpose of

presenting evidence of a witness’ agreement to testify for the opposing

party is to impeach their credibility. This case is not one where

[Petitioner] denied any involvement in the death of the victim. It is not

a case where Holden alone implicated [Petitioner]; [Petitioner] himself

admitted to shooting the victim, albeit unintentionally. Pointedly,

Holden did not and could not testify to what occurred outside his

presence, i.e., the events immediately preceding the shooting of the

victim. [Petitioner] provided those details to the jury himself. Under

these circumstances, impeaching Holden with his alleged agreement to

testify would do nothing to change the outcome of the trial. In other

words, [Petitioner] cannot establish prejudice.

(Doc. No. 17-11) (internal citations to the record omitted).

The prosecution’s knowing use of perjured testimony violates the Fourteenth

Amendment’s guarantee of due process. See Giglio v. United States, 405 U.S. 150,

153 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959). When false testimony is

presented, a conviction must be vacated “if there is any reasonable likelihood that

the false testimony could have affected the judgment of the jury.” United States v.

Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). Thus, to show a constitutional violation,

a petitioner must “show that (1) [the witness] committed perjury; (2) the government

knew or should have known of his perjury; (3) the testimony went uncorrected; and

(4) there is any reasonable likelihood that the false testimony could have affected

the verdict.” Lambert, 387 F.3d at 242.

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

conclusively shown any prosecutorial misconduct that violated his Fourteenth

Amendment due process rights. Petitioner has not presented facts and evidence that

Holden committed perjury and that any alleged false testimony affected the verdict.

Petitioner has not demonstrated that the state court’s disposition of his second

ground for relief 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, his second

ground for relief will be dismissed.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c)(1)(A), 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 initiated pursuant to 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.

See 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,

327 (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 case at

bar, jurists of reason would not find the disposition of this case debatable.

Accordingly, the Court will not issue a COA in this case.

V. CONCLUSION

For the following reasons, Petitioner’s amended § 2254 petition (Doc. No. 13)

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

s/ Sylvia H. Rambo

United States District Judge

Dated: August 10, 2021