Williams v. Marsh

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH WILLIAMS, : 3:15-CV-1090

Petitioner

v.

: (JUDGE MARIANI)

NANCY A. GIROUX, et al.,

Respondents

MEMORANDUM OPINION

Petitioner Joseph Williams filed the instant pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Presently before the Court are Williams’ objections to the

Report and Recommendation (“R&R”) filed by Magistrate Judge Martin C. Carlson. The

Court finds that, although the lion’s share of Williams’ claims do not warrant habeas relief, at

least one claim has potential merit, cannot be decided on the current record, and thus

requires further development.

I. Background

In 2015, Williams filed a pro se petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254, which contained both exhausted and unexhausted claims. (Doc. 1). He

requested a stay and abeyance while he exhausted his state-court remedies, which this

Court granted. (See Docs. 3, 6).

When his lengthy state-court collateral proceedings reached their conclusion, the

Court lifted the stay, reopened Williams’ habeas case, and granted him leave to file an

amended Section 2254 petition. (Doc. 43). Williams filed his amended petition and

supporting memorandum in November 2020, raising six grounds for relief. (Docs. 46, 46-1).

After several extensions of time, Respondents filed their response to the amended petition.

(Doc. 54). The case was then referred to Magistrate Judge Martin C. Carlson.

On August 17, 2021, Magistrate Judge Carlson issued an R&R (Doc. 56),

recommending that Williams’ Section 2254 petition be denied and that no certificate of

appealability should issue. Williams thereafter filed objections (Doc. 60) to the R&R. Upon

de novo review of Magistrate Judge Carlson’s R&R, Williams’ objections thereto, and all

relevant filings, the Court will overrule most of Williams’ objections. However, as to

Williams’ sixth ground for relief invoking Brady v. Maryland, 373 U.S. 83 (1963), the Court

will defer ruling on this claim until the record is properly developed.

ll. Legal Standard

A district court may “designate a magistrate judge to conduct hearings, including

evidentiary hearings, and to submit to a judge of the court proposed findings of fact and

recommendations for the disposition” of certain matters pending before the Court. 28 U.S.C.

§ 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge’s

Report and Recommendation, the District Court “shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection

is made.” Id. § 636(b)(1)(C); see also Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011);

M.D. PA. LOCAL RULE 72.3.

lll. Discussion

Williams objects to nearly all aspects of the R&R. The Court, however, will address

only those objections requiring discussion beyond that which has already been provided by

Magistrate Judge Carlson’s comprehensive report. Specifically, the Court will discuss

Williams’ objections with respect to habeas grounds 1, 2, 3, and 6.

A. — Ground One - Severance

Williams first contends that the R&R misconstrued his due process claim regarding

the trial court's denial of his attempts to sever his case from codefendant Anthony Herndon.

Williams maintains that the issue is not whether the state court’s decision to deny severance

was erroneous, but whether the trial judge “abused his discretion when he allowed

[Williams’] trial to continue after explicitly finding that” the defenses presented by the

codefendants were “clearly antagonistic.” (Doc. 60 at 1 (quoting Doc. 54-20, 2/11/09 Trial

Tr. at 56:22)). Williams further maintains that the R&R should have analyzed the “abuse of

discretion factors” when deciding this habeas claim. (/d. at 2).

The problem with Williams’ argument, however, is that habeas corpus is a collateral

remedy and therefore this Court does not act as a court of direct review. Teague v. Lane,

489 U.S. 288, 306 (1989) (citation omitted). Unlike, for example, the Superior Court of

Pennsylvania on direct appeal, a federal habeas court does not make determinations

regarding whether a state trial court abused its discretion in denying severance. Instead,

this Court is constrained to asking whether the state court’s determination on severance

was “contrary to, or involved an unreasonable application of, clearly established federal law,

as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1)(A).

Under this highly deferential rubric, it is clear that the trial court's decision to press

on—rather than declare a mistrial—despite believing the codefendants’ defenses were

antagonistic does not provide an avenue for federal habeas relief.! As several courts of

appeals, including the Third Circuit, have noted, the United States Supreme Court “has

explicitly rejected a per se rule requiring severance where two defendants present mutually

antagonistic defenses.” Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir. 2012) (citing

Zafiro v. United States, 506 U.S. 534, 538-39 (1993)); United States v. Voigt, 89 F.3d 1050,

1094 (3d Cir. 1996); Hutchison v. Bell, 303 F.3d 720, 731 (6th Cir. 2002) (quoting Zafiro,

506 U.S. at 538). Rather, the touchstone for severance challenges on habeas review is

whether “misjoinder would rise to the level of a constitutional violation” in that “it results in

prejudice so great as to deny a defendant his [due process] right to a fair trial.” United

States v. Lane, 474 U.S. 438, 446 n.8 (1986) (discussing joinder of federal defendants).

Because joinder and severance are governed by state law, misjoinder would only warrant

' The Court notes that, when reviewing petitions under Section 2254, the district court must look to the “last

reasoned decision’ of the stéte courts on the claim. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir.

2008) (citation omitted). For this severance claim, the last reasoned decision is the Pennsylvania Superior

Court's affirmance on direct appeal. See Commonwealth v. Williams, No. 723 MDA 2009, 31 A.3d 741, at

5-11 (Pa. Super. Ct. June 10, 2011) (table) (nonprecedential). In its decision, the Superior Court

essentially found that the codefendants’ defenses did not “amount to legally cognizable antagonism” and

therefore did not warrant severance. See id. at 10-11. This determination was not an unreasonable

application of federal law, as the Superior Court applied a standard that is arguably easier to satisfy than

federal severance jurisprudence and still found Williams’ claim unpersuasive. And even if the Superior

Court’s application were contrary to clearly established federal law, which it is not, de novo review

demonstrates that Williams’ severance claim does not warrant habeas relief.

federal habeas relief when it deprives the defendant of “fundamental fairness” in the trial

process. See Estelle v. McGuire, 502 U.S. 62, 72-73 (1991). □

Williams has not made this difficult showing. He has not identified any basis—

beyond antagonistic defenses—for why his joint trial was fundamentally unfair, nor has he

established a specific constitutional right that was violated by being tried with Herndon. See

Zafiro, 506 U.S. at 539; Estelle, 502 U.S. at 73 (explaining that “fundamental fairness” for

due process is “narrowly” defined and cabined to violations of the Bill of Rights). In sum,

Williams has not shown that the Pennsylvania Superior Court's rejection of this severance

claim was an unreasonable application of clearly established federal law or that his joint trial

was So prejudicial that it violated due process.

B. | Ground Two - Constructive Amendment

In his objection regarding ground 2, Williams argues that the Superior Court

constructively amended his indictment. He contends that, on direct appeal, the Superior

Court erroneously denied his sufficiency-of-the-evidence challenge and affirmed his robbery

conviction under one subdivision of Pennsylvania's robbery statute—18 PA. Cons. STAT. §

3701(a)(1)(ii)*-even though he was indicted and convicted under a different subdivision—

18 Pa. Cons. STAT. § 3701(a)(1)(i).3 According to Williams, this amounted to an unlawful

2 Subdivision (a)(1)(i) states, “A person is guilty of robbery if, in the course of committing a theft, he...

threatens another with or intentionally puts him in fear of immediate serious bodily injury.” 18 PA. Cons.

STAT. § 3701(a)(1)(ii).

3 Subdivision (a)(1)(i) states, “A person is guilty of robbery if, in the course of committing a theft, he...

inflicts serious bodily injury upon another.” 18 Pa. Cons. Stat. § 3701(a)(1)(i).

and unconstitutional constructive amendment of his indictment. It does not appear that

Williams raised this claim in state court. (See generally Doc. 54-11). Even if he had, it

would not warrant habeas relief. See 28 U.S.C. § 2254(b)(2) (permitting denial on the

merits of an unexhausted claim).

The Court recognizes that Williams’ argument is not baseless. From review of the

record, the Pennsylvania Superior Court indeed relied on a different and uncharged

subdivision of the robbery statute in its analysis of Williams’ sufficiency-of-the-evidence

challenge. See Commonwealth v. Williams, No. 723 MDA 2009, 31 A.3d 741, at 11-15 (Pa.

Super. Ct. June 10, 2011) (table) (nonprecedential). Pennsylvania law, however, explicitly

holds that these statutory subdivisions are not interchangeable. See Commonwealth v.

Neal, 418 A.2d 378, 380 (Pa. Super. Ct. 1980); see also Commonwealth v. Brandon, 79

A.3d 1192, 1194-95 (Pa. 2013) (differentiating subdivisions of Section 3701(a)(1) and

holding that conviction under subdivision (a)(1)(v) that was never charged must be vacated).

Nevertheless, this does not mean that Williams’ indictment was constructively

amended. Williams was charged under subdivision (a)(1)(i), (see Doc. 54-1 at 3; Doc. 54-4

at 2), and this is the subdivision under which he was convicted, (see Doc. 54-1 at 4). There

was, in fact, no amendment—constructive or otherwise—of his indictment. While the

Superior Court may have relied on the wrong statutory subdivision on appeal, its analysis

regarding attempted theft under 18 Pa. Cons. STAT. § 3701(a)(2), together with the

indisputable fact that the jury found that Williams caused “serious bodily injury” when it

convicted him of third-degree murder, demonstrates that there was no constitutional

violation with respect to Williams’ Section 3701(a)(1)(i) robbery conviction.

As to any constitutional claim regarding sufficiency of the evidence unrelated to

constructive amendment, such a claim is meritless. Under the facts recited by the state

court, and through the highly deferential lens of sufficiency claims on habeas review, the

Court cannot conclude that the state court's sufficiency-of-the-evidence determination was

“objectively unreasonable.” See Coleman v. Johnson, 566 U.S. 650, 651 (2012) (explaining

that, on federal habeas review, a Sufficiency-of-the-evidence challenge faces “two layers of

judicial deference,” and habeas courts cannot overturn a state court decision unless it was

“objectively unreasonable”). Even under de novo review, there was sufficient evidence

adduced at trial to sustain a Section 3701(a)(1)(i) conviction. Furthermore, it does not

appear that Williams has pressed an actual sufficiency-of-the-evidence claim in his

amended Section 2254 petition. (See Doc. 46 at 6 (defining his second claim as “violation

of due process, affirming robbery conviction under’ a subdivision of robbery statute for

“which Petitioner was never charged”); Doc. 46-1 at 17). Thus, the Court will overrule

Williams’ objections related to ground 2 of his amended petition.

C. Grounds Three, Four, and Five — Ineffective Assistance of Counsel

Williams’ next three objections involve grounds 3, 4, and 5 of his amended petition,

which allege ineffective assistance of trial counsel. The Court will provide additional

discussion only with respect to Williams’ first ineffective-assistance claim involving trial

counsel's alleged failure to investigate a potential witness.

Williams contends that his trial counsel was ineffective for failing to investigate or

interview Joseph Griffith, an alleged eyewitness. Joseph Griffith is one of at least three

Griffith brothers: Andrew, Joshua, and Joseph. (See Doc. 54-4 at 6; Doc. 54-10, 8/18/17

PCRA Hr'g Tr. 9:15-16). Joshua Griffith and Andrew Griffith were material eyewitnesses

who testified at Williams’ trial. (Doc. 54-4 at 6). The claim involving Joseph Griffith appears

to have been exhausted in state court during the PCRA process, although it is unclear

whether he was mentioned by name on appeal. (See Doc. 54-8 at 10); Commonwealth v.

Williams, No. 836 MDA 2018, 2019 WL 4567545, at *1 (Pa. Super. Ct. Sept. 20, 2019)

(nonprecedential). Nonetheless, because the Superior Court simply adopted the reasoning

of the PCRA court, see Williams, 2019 WL 4567545, at *3, the “last reasoned decision” of

the state courts is that of the PCRA court, Simmons, 590 F.3d at 231-32.

Review of the PCRA court's analysis of this claim demonstrates that its application of

Pennsylvania's mervion of Strickland v. Washington, 466 U.S. 668 (1984), was objectively

unreasonable. First, the PCRA court concluded that “there is no arguable merit to” Williams’

ineffectiveness claim because trial counsel “did subpoena Joseph Griffin [sic] to testify,” but

he “still didn’t testify” despite the subpoena. (Doc. 54-8 at 10). This is the entirety of the

PCRA court's analysis of trial counsel's performance, the first Strickland prong. See □

Strickland, 466 U.S. at 687-88 (holding that “defendant must show that counsel's

representation fell below an objective standard of reasonableness”). However, as Williams

points out, the fact that his trial counsel subpoenaed Joseph Griffith but never interviewed or

investigated him—despite having full access to him because he was being detained by the

Commonwealth—is primarily why his trial counsel’s conduct was constitutionally deficient.

(Doc. 60 at 5-6). Moreover, during the August 2017 PCRA hearing, Williams’ trial counsel,

when asked why he would have subpoenaed Joseph Griffith, admitted, “At this point in time

| have trouble remembering. | would normally submit subpoenas [for] somebody if | felt they

had relevant evidence that | wish to present.” (Doc. 54-10, 8/18/17 PCRA Hr’g Tr. 51:21-

52:1).

The PCRA court then summarily found that “there is no reasonable probability that

the outcome would have been different’ if trial counsel had “changed his tactics” because

he “was left out [sic] other reasonable options.” (Doc. 54-8 at 10). This too, is an

unreasonable application of Strickland because—as Williams observes and the trial and

PCRA hearing transcripts make clear—there obviously were other options that trial counsel

could have pursued, namely, interviewing Joseph Griffith and possibly having him testify at

trial depending on the outcome of that interview. Furthermore, the PCRA court fails to

perform a prejudice analysis with respect to the other trial evidence and the purported

testimony of the missing witnesses, including Joseph Griffith. See Strickland, 466 U.S. at

694 (holding that defendant must show “prejudice,” described as “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different”). The PCRA court simply concluded that there could be no propability of a

different outcome because trial counsel could not have done anything differently, which

conflates the first and second prongs of the Strickland analysis and does not assess

prejudice.

A state court’s unreasonable application of clearly established federal law removes

the deference required under Section 2254 and obligates the federal habeas court to review

the claim de novo. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). This Court’s de novo

analysis for Williams’ ineffective-assistance claim involving Joseph Griffith begins and ends

with Strickland’s prejudice prong, i.e., whether “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

Williams provides conflicting explanations about why he was prejudiced by the

absence of Joseph Griffith’s testimony. In his supporting memorandum to his amended

habeas petition, Williams states that, “had his trial counsel questioned [Joseph] Griffith,

counsel could have made a sound decision whether to call him as a witness, or not to call

him as a witness.” (Doc. 46-1 at 26). He then contends that Joseph Griffith “was in fact a

favorable witness whose testimony was capable of corroborating [Williams’ version of]

events of the incident.” (/d. at 29). Finally, in his objections to the R&R, he asserts that

Joseph Griffith would have testified that his brothers, Andrew and Joshua, were lying about

10

being robbed by Williams so as to distance themselves from him and their prior staternents

that they had passed him a gun before the shooting. (Doc. 60 at 8).

The Court finds that, even if the conduct of Williams’ trial counsel was constitutionally

deficient for failing to interview Joseph Griffith, Williams has not shown that Joseph Griffith's

alleged testimony would have had a reasonable probability of altering the outcome of trial.

Williams’ speculation as to what Joseph Griffith would have said on the witness stand, even

if accurate, does not establish Strickland prejudice.

At trial, at least three of the Commonwealth's eyewitnesses offered testimony that

supported Williams’ version of events: Andrew Griffith, Joshua Griffith, and Joseph

Anderson. (See Doc. 54-4 at 6). Those witnesses testified that Herndon was armed and

that two or more shots were fired, supporting Williams’ self-defense claim. (See Doc. 54-19,

2/10/09 Trial Tr. 27:16-28:12, 34:14-24, 44:4-11 (Andrew Griffith, testifying that Herndon

was armed with a revolver, fired first, and that Williams fired in self-defense); id. at 150:11-

151:8, 162:7-164:5, 168:24-169:19, 171:4-172:3 (Joshua Griffith, testifying that he heard

multiple shots, witnessed Herndon holding a gun, and that Williams returned fire only after

being shot at by Herndon); id. at 99:10-100:13, 101:7-14, 103:20-23 (Joseph Anderson,

testifying that two people were armed and two shots were fired)). As discussed further

below, see Section III(D), the jury did not believe this testimony. Williams has failed to

establish why another Griffith brother's testimony disputing other witnesses’ claims that a

robbery occurred would have had a reasonable probability of affecting the outcome of his

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trial. Accordingly, this ineffective-assistance claim fails and the Court will overrule Williams’

objection thereto.

D. | Ground Six - Brady v. Maryland Claim

Williams’ sixth and final ground for habeas relief raises a Fourteenth Amendment

due process claim under Brady v. Maryland, 373 U.S. 83 (1963). (See Doc. 46 at 17; Doc.

46-1 at 40-41). Brady holds that the government must disclose to a criminal defendant any

evidence in its possession that is favorable to the defendant and material to guilt or

punishment. Brady, 373 U.S. at 87. Failure to do so violates a criminal defendant's due

process rights under the Fourteenth Amendment to the United States Constitution,

“irrespective of the good faith or bad faith of the prosecution.” /d. at 86, 87. The R&R does

not address this final claim.

Williams asserts that he recently discovered photographs from the police

investigation showing a vehicle—driven by Joshua Griffith on the day of the incident and

parked across the street from where Herndon was positioned during the shootout—with a

bullet hole in the front windshield. Joshua Griffith allegedly removed this car from the scene

of the shooting before police arrived. Williams claims that these photographs were in the

Commonwealth's possession at the time of trial, are mare by the PCRA testimony of

Eugene Rainey, and would have been compelling physical evidence supporting his version

of events, j.e., that he only fired at Herndon in self-defense after Herndon shot at him.

12

Williams also argues that the photos could have led to discovery of additional physical

evidence supporting his claim of self-defense, not the least of which being the car itself.

Williams’ allegations have substantial record support. Numerous eyewitnesses

testified at trial that Joshua Griffith drove his gray or silver Ford Escort station wagon to the

scene shortly before the incident and parked on the north side of the street across from

Anthony Herndon’s house (624 Chestnut Street in York, Pennsylvania, which is situated

geographically on the south side of Chestnut Street). The eyewitness testimony likewise

placed Herndon on the porch or in the doorway of 624 Chestnut, either facing or firing at

Williams—who was standing in the street—in a northward direction toward Joshua Griffith's

vehicle. The most salient portions of that testimony are as follows:

e Kathy Shaeffer (a neighbor who lived on the south side of Chestnut Street), testified

that, when she returned home from work around 5:00 p.m., she observed Herndon

and John Mason—the eventual victim—sitting on Herndon’s front porch at 624

Chestnut Street. (Doc. 54-18, 2/9/09 Trial Tr. 86:12-14, 87:3-13). She then heard a

“commotion” outside followed by a gunshot, looked out her window, and saw Joseph

Anderson and three white males in front of her house; two of the white males fled on

foot, and Anderson and another white male ran “across the street,” the white male

got into the driver's side of a “silver or gray” Escort and put it in reverse, Anderson

got into the passenger's side, and the car left the scene. (/d. at 86:20-89:4).

e Andrew Griffith testified that, around the time of the incident, he was “riding around”

with Joshua Griffith and Joseph Anderson in Joshua's “gray station wagon.” (Doc.

54-19, 2/10/09 Trial Tr. 20:20-21:22). Andrew stated that they drove to Chestnut

Street, parked “on the other side of the street” and walked over to where Herndon

lived at 624 Chestnut. (/d. at 21:12-22:9). According to Andrew, Williams was

“standing in the street” while the rest of the people involved were “on the porch’;

Williams did not approach the porch; Williams backed up—away from 624

Chestnut—when he saw Herndon come out of the house with a gun; and Williams

was backing away when Herndon fired at him. (/d. at 23:1-5, 24:12-13, 26:7-22,

27:16-22, 43:24-44:11).

13

e Khalil Carter (Mason’s brother and Herndon’s “God brother”) identified Joshua

Griffith as “the driver” of the car, and attested that Williams was standing “across the

street” from 624 Chestnut and everyone else was located on the porch, including

Herndon, who was “by the door.” (/d. at 66:12-22, 69:1-5, 73:4-19, 82:7-13). He

further testified that, after Mason was shot, he saw Joshua Griffith and Joseph

Griffith get into Joshua's car, they “pulled off,” and “left Joe Williams.” (Id. at 77:23-

78:11).

e Joseph Anderson testified that, around the time of the shooting, he was with Andrew

Griffith and Joshua Griffith and Joshua was driving, and they were headed for

Joseph Anderson's father's house, who lived at 662 Chestnut Street. (/d. at 96:21-

25, 97:18-98:3). He further attested that, during the shooting incident, he witnessed

an arm with a gun coming out of Herndon’s residence, pointing at the “guy” in the

street. (/d. at 99:24-25, 103:6-15).

e Beronia Jackson (Herndon’s brother, who also resided at 624 Chestnut) testified

that—on the day in question—he observed Joseph Anderson and Joshua Griffith

exiting Joshua's “station wagon,” which was “parked across the street from my

house on Chestnut Street,” and walking toward his house. (/d. at 128:8-129:1,

130:9-17, 131:1-10). As to placement of the codefendants, Jackson attested that

Herndon was on the front porch, “right in front of the doorway,” and that Williams was

half on the street and half on the sidewalk, directly in front of the doorway. (/d. at

134:12-20, 135:11-16). Jackson further testified that, after the shooting, he looked

out the window of his house and saw Joseph Anderson and Joshua Griffith (and

either Andrew Griffith or Joseph Griffith) “run to the station wagon.” (/d. at 139:14-

140:2).

e Joshua Griffith testified that, on the day in question, he drove with Andrew Griffith

and Joseph Anderson in “my station wagon” toward Anderson's father’s house on

Chestnut Street, but was “called . . . down the street” to Herndon’s house. (/d. at

148:12-150:4). According to Joshua, he parked his car “right there across the

street ... on the other side” of 624 Chestnut. (/d. at 162:7-19). Joshua attested that

Herndon was on the porch and Williams was stariding in the street. “right by the

yellow line,” directly facing the door of 624 Chestnut. (Id. at 150:11-20), 160:25-

161:10). After two shots were firecl, Joshua recalled, “I got in my car and | left[;] |

drove off’ with one of his brothers and Joseph Anderson. (id. at 150:22-151:2,

151:15-17). Joshua was also questioned during trial about whether Herndon had

called him later that evening to tell him that the police were looking for his car, and

Joshua responded, “Yes.” (/d. at 164:17-165:6).

14

Additional evidence regarding Joshua Griffith's car was adduced during the June

2017 PCRA hearing, where Eugene Rainey testified. Williams met Rainey in 2011 while

they were both incarcerated at SCI Albion. (See Doc. 54-9, 6/28/17 PCRA Hr'g Tr. 12:6-

11). Rainey—who lived next door to Joshua Griffith—testified that, on the day in question,

he personally witnessed (1) Joshua Griffith and others drive up in the at-issue vehicle and

run into their house; (2) police outside their respective residences near the car Joshua

Griffith had been driving earlier in the day; (3) the at-issue vehicle with what appeared to be

a circular bullet hole in the front windshield; and (4) later that same evening, blue tape

placed over the hole in the windshield.4 (/d. at 12:6-17, 19:13-23:10). Rainey further

testified that, when he had gone over to Joshua Griffith’s house to find out what was “going

on,” Joshua said that the group “was at the shooting and somebody shot at his car” and “I

think my car was shot,” which prompted Rainey to inspect the vehicle.5 (/d. at 20:6-13,

21:21-22, 22:2-9). In Rainey’s estimation, “[i]t looked like the car was shot,” as he had

previously seen a vehicle with a gunshot hole that looked “almost identical” to the hole in

Joshua Griffith’s front windshield. (/d. at 23:4-5, 31:12-22),

‘The Court rejecits any characterization by the Commonwealth of this testimonial evidence ias hearsay’.

(See, e.g., Doc. 54 at 40). Rainey primarily testified as to his own personal observations ot who was

driving the car and the circular hole in the windshield, which do not implicate hearsay concerns.

5 During the PCRA hearing, the Commonwealth objected to these statements from Joshua Griffith as

hearsay, but that objection was overruled by the PCRA court because they were not being used for the

truth of the matter asserted, but rather to explain “the effect upon the listener” and why Rainey “took certain

action.” (6/28/17 PCRA Hr'g Tr. 20:14-21:8).

15

The materiality of this photographic evidence is straightforward. Williams’ entire trial

strategy was predicated on self-defense. This defense, if believed by the jury, would have

foreclosed a murder conviction of any degree, including third-degree murder.6 See

Commonwealth v. Fowlin, 710 A.2d 1130, 1132, 1134 (Pa. 1998) (holding that a person

who inadvertently injures a third-party bystander while lawfully exercising his right to self-

defense cannot be “simultaneously found to have justifiably acted in self-defense and be

criminally liable for crimes involving recklessness or malice”); see also 18 PA. CONS. STAT.

§§ 502, 505.

Williams never disputed that his single gunshot resulted in a bystander’s death;

rather, he has steadfastly maintained that he only fired his weapon in self-defense after

being fired upon by Herndon, accidentally striking Mason. See, e.g., Commonwealth v.

Williams, No. 723 MDA 2009, 31 A.3d 741, at 3-4, 5, 10 (Pa. Super. Ct. June 10, 2011)

(table) (nonprecedential); (Doc. 46-1 at 44; Doc. 54-10, 8/18/17 PCRA Hr'g Tr. 34:19-35:20

(trial counsel explaining that entire defense—from opening statement to closing statement

and every question asked—was “geared toward that [self-defense] theory”)).

Additionally, the Commonwealth presented testimony at trial from Sergeant Troy

Bankert, who specifically attested that the crime scene was searched for damage to

® The Pennsylvania Supreme Court has defined third degree murder as “a class of wanton and reckless

conduct... which transcends the negligent killing [of involuntary manslaughter] and reaches to the level of

malice.” Commonwealth v. Packer, 168 A.3d 161, 169 (Pa. 2017) (citation omitted).

16

surrounding buildings and vehicles and none was found, inferring that only one weapon was

discharged that day. (Doc. 54-4 at 6; Doc. 54-18, 2/9/09 Trial Tr. at 140:6-141:10). The

Commonwealth also specifically argued, during Williams’ PCRA proceedings, that Rainey’s

testimony was not credible or material, in part because it was unsupported by “photographs

of [the] damage” to Joshua Griffith's car. (Doc. 54-12 at 19-21).

It is evident from the record that Herndon’s acquittal of aggravated assault and

reckless endangerment, and Williams’ conviction for third-degree murder, hinged directly on

whether the jury believed that Herndon was armed and fired at Williams. In acquitting

Herndon and convicting Williams, the jury appears to have credited the witnesses who

testified that Herndon was unarmed and never shot at Williams and to have discredited the

three witnesses who testified to the contrary. (See Doc. 54-4 at 8 (trial court 8/17/09 Rule

1925(a) opinion explaining, “Numerous witnesses testified that only one (1) shot was heard

and several witnesses identified [Williams] as being the only individual with a weapon on

[the day of the shooting]. The jury obviously believed this testimony because Anthony

Herndon was found not guilty of all charges.” (emphasis added))). As Williams aptly

observes, physical evidence establishing that Herndon fired at him and struck a vehicle

parked at the scene—evidence untethered to the credibility of witnesses who had criminal

histories and who gave prior inconsistent statements to police—could have been the

difference between conviction and acquittal for the murder charge.

17

This Brady claim involving the vehicle photos appears to be unexhausted. Although

Williams presented Rainey's testimony as after-discovered evidence during his state PCRA

proceedings, (see Doc. 54-8 at 3), he did not raise the issue regarding the allegedly

exculpatory photographs with the state courts. As Williams explains, this is because he was

not made aware of the photos until after his brother purchased Attorney David E. Cook's

case file. (See Doc. 60 at 4; Doc. 60-1 at 1). According to documents provided by Williams,

the photographs of the at-issue vehicle with a hole in the windshield covered by tape were

included in the “Discovery information” in Attorney Cook’s file and transferred to Williams’

brother on October 2, 2019. (Doc. 60-1 at 1-2).

The difficulty with reviewing this claim, however, is that Williams does not specify

when he was represented by Attorney Cook or when the photos in question were turned

over by the prosecution. From the York County Court of Common Pleas criminal docket

sheet, it appears that Attorney Cook was a private defense attorney appointed to represent

Williams, possibly late in the lengthy state PCRA process, which spanned from 2012 to

2020. (See Doc. 54-1 at 5, 23; Doc. 22); Commonwealth v. Williams, 229 A.3d 908 (Pa.

2020) (table) (denying petition for allowance of appeal in PCRA proceedings).

Thus, it is impossible at this juncture to tell whether Williams’ claim is a true Brady

claim or whether it sounds in ineffective assistance of counsel. According to the instant

record, potentially material physical evidence that would corroborate Williams’ assertion of

self-defense was turned over to one of his attorneys at some point during “discovery’—but it

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is unclear when or how that occurred. If the photographs were in the prosecution's

possession but were not disclosed until PCRA proceedings, Williams’ Brady claim may have

merit. See Dennis v. Sec’y, Pa. Dep't of Corr., 834 F.3d 263, 298 (3d Cir. 2016) (en banc)

(noting that Brady material was suppressed by prosecution when it was “not revealed to

defense counsel until PCRA discovery, ten years after trial”). Alternatively, if the photos

were properly turned over to trial counsel before trial and no action was taken, Williams’

claim would sound in potential ineffective assistance of trial counsel.’

The Court, therefore, is not positioned to resolve this claim. Numerous relevant

questions remain unanswered, including: When and for how long did Attorney Cook

represent Williams? When did Attorney Cook receive the photos of the vehicle in question,

and from whom did he receive them (e.g., from the Commonwealth or from a previous

defense attorney)? Did Attorney Cook take any action with regard to the photos during the

time he represented Williams? Were copies of these photos ever disclosed by the

prosecution to trial counsel before trial?8 When did Williams receive the photos from his

brother? And finally, as it appears that this claim was not raised in state court, is the claim

procedurally defaulted and, if so, is there a basis to excuse procedural default?

7 The Court notes that, if trial counsel had the photos and did nothing with them, and then PCRA counsel

failed to raise this issue during state post-conviction proceedings, it is possible that procedural default of an

ineffective-assistance-of-trial-counsel claim could be excused under Martinez v. Ryan, 566 U.S 1 (2012).

8 Williams contends that the prosecution had these photos in its possession since the police investigation,

failed to turn them over to trial counsel before trial or during direct appeal, and in fact later argued during

the PCRA process that such evidence did not exist. (Doc. 60 at 3-4).

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The Court thus finds that Williams’ potential Brady claim, when considered together

with the PCRA testimony of Eugene Rainey and the record as a whole, is a nonfrivolous

habeas claim that will at least require additional investigation and briefing and may

necessitate an evidentiary hearing. Due to the nature of this claim and the extensive delay

in Williams’ state post-conviction proceedings, (see, e.g., Docs. 7-9, 13-20, 22, 25-41, 43),

the Court additionally finds that appointment of counsel under the Criminal Justice Act, 18

U.S.C. § 3006A, is warranted.

IV. Conclusion

The Court will adopt the R&R’s reasoning only as to the ineffective-assistance-of-

counsel claims in grounds 4 and 5. For the reasons set forth above, the Court will overrule

Williams’ objections on grounds 1 through 5, deny habeas relief on these first five grounds,

defer ruling on Williams’ sixth ground for relief until the record is fully developed, and

appoint counsel to represent Williams on this remaining claim. An appropriate Order

follows. Ce

Robert D. Mariani

United States District Judge

Dated: April S020

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