Torres v. Kauffman

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ALBERTO L. TORRES, :

Petitioner : CIVIL ACTION NO. 3:16-2309

v. : (JUDGE MANNION)

KEVIN KAUFFMAN, :

Respondent :

MEMORANDUM

Petitioner, Alberto L. Torres, an inmate confined in the Smithfield State

Correctional Institution, Huntingdon, Pennsylvania, filed the instant petition

for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He

challenges his conviction and sentence imposed in the Court of Common

Pleas of Franklin County. Id. The petition is ripe for disposition. For the

reasons outlined below, the petition will be denied.

I. Background

The factual background, extracted from the Pennsylvania Superior

Court’s March 21, 2014 Memorandum Opinion, affirming Petitioner’s

conviction and sentence, is as follows:

As in many bar fights, this case began with a perceived personal

slight. The place was the intersection of Franklin and King

Streets, the establishment Fran’s Inn, the time the overnight

hours of September 8–9, 2011, and the primary combatants

Torres and Antonio Harrison. The brawl began near the pool

table in the back room of the bar. N.T., 12/4/12 (First Jury Trial),

at 40–41; N.T., 1/2/13 (Second Jury Trial), at 50–51. Torres was

shooting pool, a visibly drunk Harrison bumped into Torres, and

words were exchanged. Torres pushed Harrison with his pool

cue, and Harrison—by far the bigger of the two—coldcocked

Torrs in the face with a standard right hook. N.T. (First Trial) 40–

42, 51–55, 66–72; N.T. (Second Trial) 50–51, 80–81. The blow

sent Torres flying backwards. He recovered and tackled Harrison

to the ground where more punches were thrown. After about 20

seconds, Robert Stanley, Harrison’s good friend, and another

person broke up the fight. N.T. (First Trial) 42–44; N.T. (Second

Trial) 51–55. The bartender summoned police, and Torrs and his

companion exited the bar. N.T (First Trial) at 44. A few seconds

later, Harrison and Stanley left, too, to go to Stanley’s vehicle. Id.

at 49–50.

The participants did not part ways. On the street outside of the

bar, Torres and the other individual confronted Harrison and

Stanley from a distance of about 30 to 40 yards, on the same

side of King Street. Id. at 50–51. Torres waived a handgun in the

air and pointed it at Harrison and Stanley. Id. at 51–53, 78–80;

N.T. (Second Trial) 58–60, 82–85. Stanley yelled at Torres to put

the gun away—he had no problem with guns except when they

are pointed at him. N.T. (First Trial) 51–53, 65. Torres’

companion tried to pull him into a car and away from

confrontation, but Torres shrugged off the sage gesture. Id. at

53. Torres pointed the weapon at Harrison and Stanley’s

direction and fired. Id. at 53–55. Stanley ducked, and heard two

shots, then a third, and then the sound of the third bullet

ricocheting off of a metal object. Id. In all, Stanley heard three

shots. Id. He never saw Torres fire the gun, but he saw Torres

holding the gun immediately before he heard the shots. Id. at 85–

86.

In addition to Stanley’s account (he has multiple convictions of

felony crimena falsi) the Commonwealth showed Fran’s Inn’s

surveillance videos to the jury. See id. at 60–63. The videos

captured the fight inside the bar, the participants exiting the bar,

Stanley and Harrison’s reaction to the gunshots, and the arrival

of police.

Chambersburg Police responded to the 911 dispatch call with

caution because of the report of shots fired. Id. at 93–96. An

officer performed a traffic stop of a car in which Torres was the

passenger. Id. at 98–102. Police found no firearms in the car or

on Torres, and he denied having any. Id. at 98–102, 103–04,

108. Indeed, Torres could not use or possess firearms because

of a prior conviction. N.T. (Second Jury Trial) 159. However, an

officer found a pair of brass knuckles in Torres’ pants pocket—

something that no person may use or possess. N.T. (First Jury

Trial) 99–100. And Torres also told the arresting officer that he

knew who had the gun, and it was “highly likely” that shell casings

would be found at the scene. Id. at 103–04. Torres said that

Chambersburg is a pretty bad city and that finding shell casings

in the street was not uncommon. Id. In fact, investigating police

officers recovered two .25 caliber shell casings from the street

where the shots were fired. Id. at 124–29, 131–32. Contrary to

Torres’ belief, one of the investigating officers testified that he

had never found shell casings randomly lying in that street in 20

years as a Chambersburg police officer. Id. at 132–33. The

casings were found 15 to 20 yards from the corner of King and

Franklin—where the parties had exited Fran’s Inn. Id. at 127–29.

On December 4, 2012, a jury convicted Torres of Counts (1)

aggravated assault, (2) simple assault, (3) recklessly

endangering another person (REAP), and (5) possession of an

offensive weapon.1 The Court had severed Count (4) persons

not to possess firearms2 from the other charges. On January 2,

2013, a second jury convicted Torres of that count. On March 27,

1 18 Pa.C.S.A. §§2702(a)(1), 2701(a)(3), 2705 and 908(a), respectively.

2 18 Pa.C.S. § 6105(a)(1).

2013, the Court sentenced Torres to an aggregate of 11 and 1/2

to 23 years in state prison.3

Commonwealth v. Torres, No. 1259 MDA 2013, 2104 WL 10965713 (Pa.

Super. filed March 21, 2014) (unpublished memorandum), appeal denied, 97

A.3d 744 (Pa. 2014).

The procedural background is extracted from the Pennsylvania

Superior Court’s July 11, 2017 Memorandum Opinion affirming the dismissal

of Petitioner’s second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§9541-9546, and is as follows:

[Appellant] first filed his [f]irst [PCRA petition] on

November 21, 2014. Th[e PCRA c]ourt appointed Cayla

E. Amsley, Esq. to represent [appellant] in his First

PCRA proceedings. A hearing was held on May 27,

2015. On August 20, 2015, th[e PCRA c]ourt issued an

Order and Opinion dismissing [appellant’s] First PCRA.

[Appellant] filed a Notice of Appeal of this denial on

September 15, 2015. The Superior Court affirmed th[e

PCRA c]ourt’s denial of [appellant’s] First PCRA on May

4, 2016. [See Commonwealth v. Torres, 151 A.3d 1135

(Pa. Super. 2016) (unpublished memorandum), appeal

denied, 158 A.3d 76 [Pa. 2016).] On September 27,

3 The Court’s individual sentences are as follows:

Count 1 (aggravated assault): 78–156 months (with credit for time

served);

Count 4 (persons not to possess firearms): 60–120 months

consecutive to Count 1; and

Count 5 (possession of offensive weapons): 12–60 months

concurrent with Count 1.

Counts 2 (simple assault) and 3 (REAP) merged with Count 1.

2016, the Pennsylvania Supreme Court denied

[appellant’s] Petition for Allowance of Appeal. [Id.]

[Appellant] filed his [s]econd [PCRA petition] on

November 7, 2016, raising a claim of ineffective

assistance of First PCRA Counsel and Trial Counsel,

Drew Deyo, Esq. On December 9, 2016, th[e PCRA

c]ourt issued a Notice of Intent to Dismiss [appellant’s]

Second PCRA [pursuant to Pa.R.Crim.P. 907 (a)] due to

timeliness and lack of jurisdiction to address the merits.

[Appellant] filed a Rule 907(1) Response on December

27, 2016.

PCRA court opinion, 4/28/17, at 1-3 (footnotes consolidated;

Internal case citations added).

On February 9, 2017, the PCRA court dismissed appellant’s

instant petition without a hearing. Appellant filed a pro se notice

of appeal on March 3, 2017. That same day, the PCRA court

ordered appellant to file a concise statement of errors

complained of on appeal, in accordance with Pa.R.A.P. 1925(b).

On March 22, 2017, appellant filed a timely Rule 1925(b)

statement and the PCRA court issued its Rule 1925(a) opinion

on April 28, 2017.

Appellant raises the following issued for our review:

1. DID THE PCRA COURT ABUSE ITS

DISCRETION BY DISMISSING APPELLANT’S

SECOND PCRA PETITION AS UNTIMELY

WHERE HE SUFFICIENTLY PLED AN

EXCEPTION TO THE STATUTORY TIMELINESS

REQUIREMENT[?]

2. SHOULD THIS COURT REVERSE THE PCRA

COURT’S ORDER DENYING THE SECOND

PCRA PETITION WITHOUT A HEARING,

WHERE APPELLANT RAISES A GENUINE

ISSUE OF MATERIAL FACT AS TO WHETHER

HE PLED [THAT] HE ACTED DILIGENTLY[?]

3. DID THE PCRA COURT ERR IN NOT

RESTORING APPELLANT’S PCRA RIGHTS

WHERE OBVIOUS OMISSIONS BY COUNSEL

RESULTED IN THE DENIAL OF MEANINGFUL

PCRA REVIEW RENDERING THE PCRA

PROCEEDING FUNDAMENTALLY UNFAIR[?]

Appellant’s brief at 3.

(Doc. 22 at 16-19). By Memorandum Opinion dated July 11, 2017, the

Superior Court affirmed the dismissal of Petitioner’s second PCRA petition.

Id.

II. Grounds For Relief

Torres asserts the following grounds for relief:

1. Trial counsel was ineffective for failing to object to Petitioner

wearing a stun belt at trial.

2. PCRA counsel ineffective for failing to include in his PCRA

petition that trial counsel was ineffective for failing to investigate

the clothing seized from petition and investigating it to see if it

had gunshot residue on it.

(Doc. 1 at 5-11).

III. Standard of Review

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

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

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

§2254, provides, in pertinent part:

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

district court shall entertain an application for a writ of habeas

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

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

violation of the Constitution or laws or treaties of the United

States

....

(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 sets limits on the power of a federal court to

grant an application for a writ of habeas corpus on behalf of a state prisoner.

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

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

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

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

This limitation places a high threshold on the courts. Typically, habeas relief

will only be granted to state prisoners in those instances where the conduct

of state proceedings resulted in “a fundamental defect which inherently

results in a complete miscarriage of justice [or] an omission inconsistent with

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

348 (1994) (citations omitted).

Section 2254(d)(1) applies to questions of law and mixed questions of

law and fact. In applying it, this Court’s first task is to ascertain what law falls

within the scope of the “clearly established Federal law, as determined by

the Supreme Court of the United States[,]” 28 U.S.C. §2254(d)(1). It is “‘the

governing legal principle or principles set forth by the Supreme Court at the

time the state court renders its decision’”. Dennis v. Sec’y, Pennsylvania

Dep’t of Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting Lockyer v.

Andrade, 538 U.S. 63, 71-72 (2003)).

Once the “clearly established Federal law, as determined by the

Supreme Court of the United States” is ascertained, this Court must

determine whether the Superior Court’s adjudication of the claim at issue

was “contrary to” that law. Williams v. Taylor, 529 U.S. 362, 404-05 (2000)

(explaining that the “contrary to” and “unreasonable application of” clauses

of §2254(d)(1) have independent meaning). A state-court adjudication is

“contrary to ... clearly established Federal law, as determined by the

Supreme Court of the United States” §2254(d)(1), “if the state court applies

a rule that contradicts the governing law set forth in [Supreme Court] cases,”

Williams, 529 U.S. at 405, 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,”

id. at 406.

A “run-of-the-mill” state-court adjudication applying the correct legal

rule from Supreme Court decisions to the facts of a particular case will not

be “contrary to” Supreme Court precedent. Williams, 529 U.S. at 406.

Therefore, the issue in most federal habeas cases is whether the

adjudication by the state court survives review under §2254(d)(1)’s

“unreasonable application” clause.

“A state court decision is an ‘unreasonable application of federal law’ if

the state court ‘identifies the correct governing legal principle,’ but

‘unreasonably applies that principle to the facts of the prisoner’s case’.”

Dennis, 834 F.3d at 281 (quoting Williams, 529 U.S. at 413). To satisfy his

burden under this provision of AEDPA’s standard of review, Petitioner must

do more than convince this Court that the Superior Court’s decision was

incorrect. Id. He must show that it “‘was objectively unreasonable’.” Id.

(quoting Williams, 529 U.S. at 409) (emphasis added by Court of Appeals).

This means that Petitioner must demonstrate that the Superior Court’s

decision “was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fair-

minded disagreement.” Richter, 562 U.S. at 103. As the Supreme Court

noted:

It bears repeating that even a strong case for relief does

not mean the state court’s contrary conclusion was

unreasonable. See Lockyer, supra, at 75, 123 S. Ct. 1166.

If this standard is difficult to meet, that is because it was

meant to be. As amended by AEDPA, §2254(d) stops short

of imposing a complete bar on federal court relitigation of

claims already rejected in state proceedings. Cf. Felker v.

Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 135 L.Ed.2d

827 (1996) (discussing AEDPA’s “modified res judicata

rule” under §2244). It preserves authority to issue the writ

in cases where there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with

this Court’s precedents. It goes no further.

Id. at 102.

The standard of review set forth at §2254(d)(2) applies when a

petitioner “challenges the factual basis for” the state court’s “decision

rejecting a claim[.]” Burt v. Titlow, 571 U.S. 12, 18 (2013).7 “[A] state court

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 in the state-court proceeding,’ which requires review of whether

there was sufficient evidence to support the state court's factual findings.”

Dennis, 834 F.3d at 281 (quoting §2254(d)(2) and citing Miller-El v. Cockrell,

537 U.S. 322, 340 (2003)). “‘[A] state-court factual determination is not

unreasonable merely because the federal habeas court would have reached

a different conclusion in the first instance’.” Titlow, 571 U.S. at 18 (quoting

Wood v. Allen, 558 U.S. 290, 301 (2010)); see Rice v. Collins, 546 U.S. 333,

342 (2006) (reversing court of appeals’ decision because “[t]he panel

majority’s attempt to use a set of debatable inferences to set aside the

conclusion reached by the state court does not satisfy AEDPA’s

requirements for granting a writ of habeas corpus.”). Thus, “if ‘[r]easonable

minds reviewing the record might disagree’ about the finding in question, ‘on

habeas review that does not suffice to supersede’” the state court’s

adjudication. Wood, 558 U.S at 301 (quoting Collins, 546 U.S. at 341-42).

If the Superior Court did not adjudicate a claim on the merits, the Court

must determine whether that was because Petitioner procedurally defaulted

it. If the claim is not defaulted, or if Petitioner has established grounds to

excuse his default, the standard of review at §2254(d) does not apply and

the Court reviews the claim de novo. See, e.g., Appel v. Horn, 250 F.3d 203,

210 (3d Cir. 2001). However, in all cases and regardless of whether the

standard of review at §2254(d) applies, the state court’s factual

determinations are presumed to be correct under §2254(e)(1) unless

Petitioner rebuts that presumption by clear and convincing evidence. Palmer

v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010); Nara v. Frank, 488 F.3d 187,

201 (3d Cir. 2007) (“the §2254(e)(1) presumption of correctness applies

regardless of whether there has been an ‘adjudication on the merits’ for

purposes of §2254(d).”) (citing Appel, 250 F.3d at 210).

Torres’ case is governed by the Antiterrorism and Effective Death

Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996

(“AEDPA”).

IV. Discussion

Petitioner raises two grounds of 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 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.

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 noted the following:

…[C]ounsel is presumed effective and it is the defendant’s

burden to prove ineffectiveness. Commonwealth v. Martin, 5

A.3d177, 183 (Pa. 2010). To overcome this presumption,

Appellant must demonstrate that:

(1) the underlying claim has arguable merit; (2) counsel did

not have a reasonable basis for his actions or failure to act;

and, (3) the petitioner suffered prejudice as a result of

counsel’s deficient performance. Id. An appellant’s claim

fails if he cannot meet any of these prongs. Id.

(Doc. 22 at 45). 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). Torres does not argue

otherwise. Because the Superior Court did not apply law contrary to clearly

established precedent, Torres 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.

1. Ground One

Petitioner claims that his Fifth, Sixth and Fourteenth Amendments

were violated due to counsel’s failure to object at trial to the fact that

“Petitioner was made to wear a shock-belt under his clothing during the jury

trial process,” which Petitioner claims, “the Court did not mandate” and it

“severely hindered Petitioner from testifying on his own behalf.” (Doc. 1 at

5).

Petitioner raised this claim in his timely First PCRA petition. The PCRA

court, in a very well-reasoned Opinion, found Petitioner not entitled to relief,

and the Superior Court adopted the PCRA court’s opinion as their own as

follows:

As noted above, Appellant argues that his counsel was

ineffective in failing to object when he was required to wear a

stun belt. Appellant’s Brief at 10. Appellant baldly asserts that,

because he was made to wear the stun belt, he was nervous and

unable to assist in his defense. Appellant’s Brief at 12. In

Commonwealth v. Lopez, 854 A.2d 465, 469-470 (Pa. 2004),

our Supreme Court addressed a nearly identical claim of error:

It is difficult to ascertain what prejudice allegedly resulted

from appellant’s wearing the belt, beyond the prejudice

of not being able to escape. Appellant does not allege

the jury was prejudiced by seeing him in the belt, but

instead claims it constricted his breathing and

movement, thereby interfering with “his Sixth

Amendment right to assist his counsel.” Appellant’s

Brief, at 8. However, appellant has not demonstrated

that but for the belt, the outcome of this trial would have

differed. Accordingly, his claim of trial counsel’s

ineffectiveness fails, and this necessarily defeats his

claim of appellate counsel’s ineffectiveness.

Lopez, 854 A.2d at 469-470.

The same is true in the case at bar. Appellant does not argue

that the jury saw the stun belt, only that Appellant was nervous

while wearing it. Appellant’s Brief at 12-13. The PCRA court

addressed Appellant’s issue as follows:

[Appellant] testified at this PCRA hearing that he was

outfitted with a “RACC” belt, which is a form of a stun

belt. The belt is wrapped around the defendant’s waist

and is remotely operated by a Sheriff’s Deputy in the

courtroom. The stun belt emits an electric shock to

immobilize a defendant. The stun belt was affixed to

[Appellant’s] waist and was beneath his clothing. All

testimony confirms that the belt was not visible to the

public or jurors, and no mention of it was ever made to

the jurors. [Appellant] asserts that the compulsion to

wear the stun belt inhibited his free participation in the

course of the trial, and that it “made him nervous.”

Furthermore, he asserts that it inhibited his ability to

testify on his own behalf at trial, thus violating his 6th

Amendment rights to counsel and a fair trial.

[Appellant’s] trial counsel, Drew Deyo, testified that he

did not notice that [Appellant] was wearing the stun belt;

he was not aware of the Sheriff’s policy which requires

all defendants at trial to wear a stun belt, and that he had

in fact advised [Appellant] against testifying as his

testimony would be more harmful than helpful to him. He

assumed that [Appellant] would be claiming his

innocence if he testified.

This Court notes that the trial transcript reveals at the

conclusion of the testimony of the trial on January 2,

2013, [Appellant] was given an opportunity to either

assert his 5th Amendment right or indicate if he wished

to testify. The colloquy was conducted outside of the

presence of the jury after [Appellant] was placed under

oath. The Court first confirmed that [Appellant] had the

benefit of his privately retained counsel, Drew Deyo,

Esquire. The Court confirmed that [Appellant]

understood that he could not be compelled to make any

statements under the 5th Amendment to the Constitution.

The Court also confirmed with [Appellant] that the trial

was the time and place for him to address the jury if he

wished to do so. [Appellant] answered in the affirmative

that he understood all of his rights. Furthermore, the

Court confirmed that [Appellant] understood that he

could ask to come forward a day, a week, 30 days, or a

year from now and indicated that he was denied an

opportunity to testify on his own behalf. [Appellant]

confirmed that he understood that the trial was the time

and place to address the jurors. By this Court’s

recollection, he did not assert that he was nervous,

concerned, or fearful of being shocked by the stun belt.

[Appellant] confirmed in the colloquy with the Court that

he had adequate time to discuss the issue of whether or

not he should testify with his attorney. He also indicated

he was exercising his right to remain silent. (Pgs of trial

transcript 161-162).

In the case of Comm. v. Romero, 595 Pa. 275, 297-298,

938 A.2d 362, 375 (Pa. 2007), the Pennsylvania

Supreme Court found that where a stun belt was not

visible to the jury and was underneath the appellant’s

clothing, that “a jury could not have been prejudiced by

what it could not see.” Id. In that case, the Defendant

Romero offered no testimony regarding the

psychological effect upon him. In this instance, the Court

finds that [Appellant] has offered testimony relating [to]

the alleged psychological effect, yet the Court is of the

opinion that having heard [Appellant’s] testimony, that

such testimony is not credible in light of the fact that the

Court took the time to affirmatively confirm whether or

not [Appellant] wished to testify at the time of trial.

Furthermore, by his own counsel’s testimony, there

appeared to be no visible signs to his trial counsel that

he was somehow psychologically affected by wearing

the stun belt. In fact, his counsel was unaware that he

was wearing it at the time of his trial. If the application

and use of such a device was causing [Appellant] stress

at trial, this Court could reasonably expect that

[Appellant] would offer a complaint to his counsel about

the use of such a restraint, and request that it be

addressed. In fact, [Appellant] acknowledges that

although wearing it to him may have seemed “weird,” it

was not until he was transported to SCI Smithfield and

presumably began to investigate such issues that the

question of illegally of its use was brought to this

attention. However, a challenge regarding illegality is not

the sole inquiry per the case law of the Commonwealth

of Pennsylvania. There must be more than mere alleged

illegal use. It must affect or prejudice the [d]efendant’s

case in the eyes of the jury or to have such a

psychological impact that it would deny him the

opportunity to fully participate in the trial. The Court

considers [Appellant’s] testimony at his PCRA hearing to

be self-serving in that he is now attempting to contradict

all the evidence which points to the contrary. Simply by

saying that he could not adequately voice his concerns

about the use of the belt to his counsel is not credible.

The Court takes into account that Mr. Deyo was his

privately retained counsel and presumably the

relationship was one such that [Appellant] had

assurances of the attorney-client relationship and would

have trusted such matters to his counsel. The complaint

that [Appellant] is now lodging about the impact that the

stun belt had upon him are in this Court’s view not

credible. For that reason, the Court finds that there is no

evidence to support [Appellant’s] claim that there was a

psychological impact upon him which affected his

participation in the trial.

In Comm. v. Lopez, 578 Pa. 545, 553, 845 A.2d 465,

469-470 (Pa. 2004), the Pennsylvania Supreme Court

has established that when a Defendant is asserting a

claim of ineffective assistance of counsel, he must prove

“that but for the belt, the outcome of his trial would have

been different.” Id. As this Court has stated, [Appellant’s]

testimony in this area was not persuasive or credible.

The Court finds that it is at best self-serving, and while

[Appellant] may have had concerns about wearing the

belt, he was given ample opportunities to reveal to

counsel and the Court what impact it was having upon

him throughout the course of the trial. This Court is of the

opinion that [Appellant] has failed to show how he was

psychologically impacted or so affected that he could not

engage with his counsel throughout the course of trial. In

fact, Mr. Deyo confirmed that if there was any concern at

all raised at any time throughout the course of the trial,

he would have brought it to the attention of the court and

insisted that it be addressed.

For these reasons, [Appellant] has failed to show that but

for the wearing of the stun belt, there would have been

any change in the result of the trial. For those reasons,

his claim of ineffective assistance of trial counsel must

fail.

In his brief, Appellant also challenges the policy of wearing the

stun belt as a basis upon which counsel should have objected.

Appellant’s Brief at 10. Appellant avers that, without a finding of

“extreme need,” the policy is a violation of Pennsylvania law. Id.

However, the case Appellant cites is a non-precedential

memorandum from the Commonwealth Court, Brown v. Bovo,

2339 CD 2008, 980 A.2d 223 (Pa. Cmwlth. Filed September 14,

2009) (unpublished memorandum). In addition to Brown being a

non-precedential decision, the “extreme need” language cited

therein is in connection a defendant in a federal case appearing

in the courtroom in visible leg-irons and handcuffs. Lemons v.

Skidmore, 985 F.2d 354, 359 (7th Cir. 1993). However, nothing

in the case at bar reveals that Appellant wore shackles or

that the stun belt was visible to the jury.4 Under the facts

presented here, the “extreme need” analysis is inapplicable

because the stun belt was not visible, and we have already

concluded that Appellant failed to show prejudice.5

For the reason set forth about, Appellant’s ineffectiveness claim

fails. Accordingly, we affirm he order denying Appellant’s PCRA

petition. Martin, 5 A.3d at 183.

(Doc. 22 at 46-50) (emphasis in original).

It is well-settled that shackling a defendant during trial is an

extraordinary measure; “no person should be tried while shackled ... except

as a last resort.” Illinois v. Allen, 397 U.S. 337, 344 (1970). The United States

Supreme Court recognized that a defendant is prejudiced when he appears

before a jury in shackles: “Not only is it possible that the sight of shackles

and gags might have a significant effect on the jury’s feelings about the

4 “The Fifth and Fourteenth Amendments prohibit the use of physical

restraints visible to the jury absent a trial court determination, in the

exercise of its discretion, that they are justified by a state interest specific to

a particular trial.” Deck v. Missouri, 544 U.S. 622, 642 (2005) (emphasis

added).

5 We must also point out that counsel testified credibly that Appellant never

informed him that he was wearing the stun belt. While we have already

concluded that Appellant failed to establish prejudice, were we to reach this

issue, we would not find that counsel was ineffective for failing to raise an

issue that Appellant did not reveal. See Commonwealth v. Willis, 68 A.3d

997, 1009-1010 (Pa. Super. 2013) (finding that counsel was not ineffective

for failing to raise a claim which she was unaware).

defendant, but the use of this technique is itself something of an affront to

the very dignity and decorum of judicial proceedings that the judge is seeking

to uphold.” Id. at 344, 90 S.Ct. 1057. The Court added, however, that

sometimes “binding and gagging might possibly be the fairest and most

reasonable way to handle” a disruptive defendant. Id. As the Supreme Court

explained in Deck v. Missouri, 544 U.S. 622 (2005), “the Fifth and Fourteenth

Amendments prohibit the use of physical restraints visible to the jury absent

a trial court determination ... that they are justified by a state interest specific

to a particular trial.” Id. at 629. The instant matter differs from Deck because

petitioner was not visibly shackled. The Supreme Court has yet to conclude

that a restraint the jury cannot see violates dues process. In the instant

action, it has been more than established that the stun belt was not visible to

the public or the jury. Thus, Petitioner has failed to show that but for the

wearing of the stun belt, there would have been any change in the result of

his trial. Nor has Petitioner shown that he was prejudiced by trial counsel's

failure to object to the use of the stun belt.

Thus, the Court finds that the state courts’ review of Petitioner’s first

claim did involve an unreasonable application of Strickland or was based on

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

is not entitled to relief on this claim.

2. Ground Two

Petitioner claims that PCRA counsel was ineffective for failing to

include in his PCRA petition that trial counsel was ineffective for failing to

investigate the clothing seized from Petitioner and investigate it to see if it

had gunshot residue (“GSR”) on it. (Doc. 1 at 6). Petitioner claims that he

included this issue in his initial PCRA petition but when PCRA counsel filed

his amended petition, it was omitted. (Doc. 8 at 22). Petitioner attempted to

address this issue in his Second PCRA petition, however, the petition was

found to be untimely. Id. Thus, the petition is unexhausted.

Petitioner must exhaust his federal constitutional claims in state court

before raising them in a federal habeas petition. 28 U.S.C. §2254(b)(1);

Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509,

518 (1982). A state prisoner exhausts state remedies by giving the “state

courts one full opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process,”

which, in Pennsylvania, includes review at least through the Superior Court.

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Lambert v. Blackwell, 387

F.3d 210, 233–34 (3d Cir. 2004). The failure to properly present claims to

the state court generally results in a procedural default. Lines v. Larkin, 208

F.3d 153, 165–66 (3d Cir. 2000). A federal court is precluded from reviewing

the merits of a procedurally defaulted claim if the state courts relied on an

independent and adequate state ground to foreclose review of the federal

claim. Beard v. Kindler, 558 U.S. at 53 (2009).

Here, Petitioner’s Second Ground is unexhausted because he has not

presented it through one complete round of Pennsylvania’s established

appellate review process. O’Sullivan, 526 U.S. at 845. Petitioner raised his

second ground of ineffectiveness claim in his Second PCRA, which was

dismissed as untimely. Therefore, this claim has not completed one full round

of the State’s appellate review process. Accordingly, this claim is

unexhausted and procedurally defaulted as Petitioner would now be

precluded from raising it under the PCRA statute of limitations and

Pennsylvania’s PCRA waiver rule, 42 Pa.C.S. §9544(b).6 The waiver rule

codified at §9544(b) is an independent and adequate state rule which bars

federal habeas review. Patton v. Sup’t Graterford SCI, 2017 WL 5624266, at

*1 (3d Cir. 2017) (“[T]he state court’s reliance on 42 Pa. Cons. Stat. §9544(b)

provides an independent and adequate ground to support the judgment.”).

6 42 Pa. Cons. Stat. §9544(b) provides: “For purposes of this subchapter, an

issue is waived if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior state postconviction

proceeding.”

Because Petitioner’s second claim is procedurally defaulted, the Court

may not review the merits unless Petitioner has established cause and

prejudice, or a fundamental miscarriage of justice, to excuse the procedural

default. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Liberally construing Petitioner’s pro

se filings, and giving him every benefit of the doubt, he arguably asserts the

procedural default is excused under Martinez v. Ryan, 566 U.S. 1 (2012),

due to PCRA counsel’s alleged ineffectiveness. (Doc. 8).

Martinez recognized a “narrow exception” to the general rule that

attorney errors in collateral proceedings do not establish cause to excuse a

procedural default, holding “[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.” 566 U.S. at 9.

The Third Circuit has provided that “‘[w]here state law requires a prisoner to

raise claims of ineffective assistance of trial counsel in a collateral

proceeding, rather than on direct review, a procedural default on those

claims will not bar their review by a federal habeas court if three conditions

are met: (a) the default was caused by ineffective assistance of post-

conviction counsel or the absence of counsel; (b) in the initial-review

collateral proceeding (i.e., the first collateral proceeding in which the claim

could be heard); and (c) the underlying claim of trial counsel ineffectiveness

is ‘substantial’.” Preston v. Superintendent Graterford SCI, 902 F.3d 365,

376 (3d Cir. 2018) (quoting Cox v. Horn, 757 F.3d 113, 124 (3d Cir. 2014)

(quoting Martinez, 566 U.S. at 14, 132 S.Ct. 1309)).

The procedural default on Petitioner’s Second Ground is not excused

under Martinez. Petitioner’s underlying, procedurally defaulted

ineffectiveness claim is not “substantial” under Martinez. 566 U.S. at 14.

Whether a claim is “substantial” under Martinez is “analogous to the

substantiality requirement for a certificate of appealability.” Cox, 757 F.3d at

119 (citing Martinez, 566 U.S. at 14, 132 S.Ct. 1309). “Thus, the question for

Martinez purposes, is merely whether ‘reasonable jurists could debate’ that

[Petitioner’s claim] has merit, or whether the claim is ‘adequate to deserve

encouragement to proceed further’.” Preston, 902 F.3d at 377 (quoting

Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931

(2003) (quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146

L.Ed.2d 542 (2000)).

Petitioner’s underlying claim is without merit because it does not satisfy

the ineffectiveness requirements of Strickland. First, trial counsel did not

perform deficiently. Whether to independently test evidence is a tactical

decision, which is given deference in evaluating effectiveness of counsel.

Strickland, 466 U.S. at 690. Courts have found counsel acted reasonably in

failing to test evidence where doing so would not exculpate the defendant

and in fact could run the risk of further implicating him, and where counsel

used the lack of police testing to argue to the jury that the investigation into

the case was incomplete. See, e.g. Curry v. Secretary, Florida Department

of Corrections, 735 Fed.Appx. 609, 612 (11th Cir. 2018); U.S. v. Roberts,

417 Fed.Appx. 812, 823 (10th Cir. 2011); Baker v. Yates, 2007 WL 2156072

*15 (S.D. CA. 2007). In this case, the police did not test Petitioner’s clothing

so that the prosecution could not and did not use it as evidence to present to

the jury. If defense counsel’s testing indeed revealed GSR on Petitioner’s

clothes, it would only have served to further inculpate him in the crime. This

result may have had the adverse effect of assisting the Commonwealth in its

case against Petitioner. Because trial counsel’s failure to test for GSR can

be construed as a reasonable trial strategy, Petitioner’s claim for ineffective

assistance is without merit, and PCRA counsel was not ineffective for failing

to raise it on collateral review.

Second, under Strickland, the Petitioner must show that the alleged

ineffectiveness of counsel actually prejudiced Petitioner’s case. 466 U.S. at

693. Here, Petitioner has not shown that counsel was ineffective for failing

to test his clothing for GSR. At Petitioner’s trial, the Commonwealth did not

present any GSR evidence against him. A finding that there was no GSR on

Petitioner’s clothes would not necessarily have exculpated him. See

Chambers v. Sec’y Pa. Dep’t. of Corr., 442 F. Appx. 650, 656 (3d Cir. 2011)

(“[A]bsence of evidence is not evidence of absence.”). Additionally, the

evidence actually presented against Petitioner at trial, including eyewitness

testimony that Petitioner waived a handgun in the air and pointed it at

Harrison and Stanley, was strong. Therefore, Petitioner was not prejudiced

by trial counsel’s decision not to test his clothing for GSR. Petitioner’s

Second Ground is not substantial and does not warrant habeas review under

the Martinez exception to procedural default.

Accordingly, because Petitioner’s claim of ineffectiveness for failure to

test for GSR is procedurally defaulted, the Court will deny relief on this claim.

V. Certificate of Appealability

“Under the Antiterrorism and Effective Death Penalty Act of 1996

(‘AEDPA’), a ‘circuit justice or judge’ may issue a COA [certificate of

appealability] only if the petitioner ‘has made a substantial showing of the

denial of a constitutional right.’” Tomlin v. Britton, 448 Fed.Appx. 224, 227

(3d Cir. 2011) (citing 28 U.S.C. §2253(c)). “Where a district court has

rejected the constitutional claims on the merits, ... the petitioner must

demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

For the reasons set forth herein, Petitioner has not made a substantial

showing of the denial of a constitutional right or that jurists of reason would

find it debatable that Court’s assessment of the claims debatable or wrong.

Accordingly, a COA will not issue.

VI. Conclusion

For the reasons set forth above, the Court will deny the petition for writ

of habeas corpus. A separate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: June 27, 2022

16-2309-01