Gutierrez v. Smith

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

EDDIE GUTIERREZ, :

Petitioner : CIVIL ACTION NO. 3:16-1134

v. : (JUDGE MANNION)

B. SMITH, SUPERINTENDENT, :

Respondent :

MEMORANDUM

Petitioner, Eddie Gutierrez, an inmate confined in the State

Correctional Institution, Houtzdale, 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 York

County. Id. The petition is ripe for disposition. For the reasons outlined below,

the petition will be denied.

I. Background

The Pennsylvania Superior Court summarized the factual background

of this case as follows:

Appellant, Eddie Gutierrez, appeals from the judgment of

sentence entered on April 16, 2012 after his jury conviction of

aggravated assault causing serious bodily injury, aggravated

assault causing serious bodily injury with a deadly weapon,

simple assault, and reckless endangerment.1 We affirm.

We take the following facts from our review of the trial notes of

testimony in this matter. On February 18, 2011, after having

lunch together at a local soup kitchen, the victim, Felito Rosario-

Morales, and Appellant returned to their respective rooms at the

Hanover Motel, where Rosario-Morales lived on the second floor

and Appellant resided on the third. (See N.T. Trial, 2/06/12, at

72, 88; N.T. Trial, 2/07/12, at 181-82). Rosario-Morales was

scheduled to work one-half hour later at the National Pretzel

factory in his job as forklift operator, and he had a pocketknife in

his jeans, which he used for opening boxes. (See N.T. Trial,

2/06/12, at 75-77; N.T. Trial, 2/07/12, at 140-42). Rosario-

Morales telephoned Appellant regarding loans between them,

although each man argued that the other owed him money. (See

N.T. Trial, 2/06/12, at 83-84; N.T. Trial, 2/07/12, at 271). During

a later phone call, Appellant invited Rosario-Morales to come

upstairs. (See N.T. Trial, 2/06/12, at 88). Thereafter, Appellant

retrieved a kitchen knife, which he concealed behind his back

while he waited in the hallway for Rosario-Morales’ arrival. (See

N.T. Trial, 2/07/12, at 289, 316). On the victim’s arrival, the two

men engaged in a verbal altercation. (See id. at 154, 315).

Detective Craig Culp testified that Appellant told him that

Rosario-Morales did not appear to be armed. (See N.T. Trial,

2/09/12, at 344).

Video surveillance and Rosario-Morales’ testimony showed that

Appellant stabbed Rosario-Morales as he was turning away.

(See N.T. Trial, 2/06/12, at 92-93; N.T. Trial, 2/07/12, at 316).

Hanover Motel resident Jerome Small observed Appellant, still

armed with the knife, chase an unarmed Rosario-Morales down

the hall as he attempted to flee. (See N.T. Trial, at 2/07/12, at

155, 158). When Rosario-Morales collapsed, he and Appellant

continued to exchange words until Appellant left the building.

1 18 Pa.C.S.A. §§2701(a)(1), 2702(a)(4), 2701(a)(1), and 2705, respectively.

(See N.T. Trial, 2/06/12, at 92-93). Upon their arrival, the police

observed Rosario-Morales in what appeared to be extreme pain,

with a stab wound and a brown, flesh-colored organ hanging out

of his wound about three inches. (See N.T. Trial, 2/07/12, at 214-

15).

Paramedics transported Rosario-Morales to York Hospital,

where he received immediate surgery for a tear in the outer layer

of his colon, a large hematoma in the upper right side of the

abdomen, a damaged duodenum, two stab wounds to the small

intestine, and three stab wounds to the mesoderm. (See id. at

167-72). Rosario-Morales remained in the hospital for eighteen

days following surgery. (See N.T. Trial, 2/06/12, at 99).

On February 13, 2012, a jury convicted Appellant of the above-

mentioned crimes.2 On April 16, 2012, the trial court sentenced

Appellant to no less than nine nor more than eighteen years’

incarceration in a state correctional institution. The court denied

Appellant’s post-sentence motion and motion for reconsideration

of sentence on September 25, 2012. Appellant timely appealed.3

Appellant raises three questions for our review:

I. Whether the evidence submitted at trial was insufficient to

support the verdict of guilty when the Commonwealth failed to

prove Appellant’s actions were not justifiable self-defense[?]

II. Whether the verdict was against the weight of the evidence

submitted at trial and failed to rise to the level of proof required

to support a conviction of aggravated assault when the evidence

presented at trial established [the] victim came to Appellant’s

home armed with a knife and threatening Appellant with physical

harm[?]

2 The jury found Appellant not guilty of attempted criminal homicide.

3 Appellant filed a timely statement of errors on October 31, 2012 and the

court filed an opinion on May 28, 2013. See Pa.R.A.P. 1925.

III. Whether the sentence of nine to eighteen years imposed

by [the trial] court constitutes an abuse of discretion when the

sentence imposed is inconsistent with the gravity of the offense

and protection of the public and does not consider relevant

mitigating factors[?]

(Doc. 14-1 at 1-4, Commonwealth v. Gutierrez, No. 1751 MDA 2012,

unpublished memorandum (Pa. Super. filed Feb. 19, 2014)). On February

19, 2014, the Pennsylvania Superior Court affirmed Petitioner’s conviction

and sentence. Id.

Thereafter, Appellant filed the instant PCRA petition. The court

appointed counsel, and following an evidentiary hearing, denied

relief. This appeal ensued.

The PCRA court directed Appellant to file and serve a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

Appellant complied, and the PCRA court authored a

memorandum decision. The matter is now ready for this Court’s

consideration. Appellant presents one issue for our review, “Was

it error for the PCRA court to conclude that trial counsel did not

provide ineffective assistance by failing to present Mr.

Gutierrez’s mental health issues to the jury as part of the defense

strategy?” Appellant’s brief at 4.

(Doc. 14-2 at 1, Commonwealth v. Gutierrez, No. 1566 MDA 2014 ,

unpublished memorandum (Pa. Super. filed Aug. 7, 2015)). By

Memorandum Opinion dated August 7, 2015, the Pennsylvania Superior

Court affirmed the PCRA court’s denial of Gutierrez’ PCRA petition. Id.

Thereafter, Gutierrez timely filed the instant petition pursuant to 28

U.S.C. §2254.

II. Grounds For Relief

Gutierrez asserts the following grounds for relief:

1. The evidence was insufficient to prove Petitioner guilty of

aggravated assault in light of his self-defense claim.

2. The verdict was against the weight of the evidence to support

a conviction for aggravated assault involving a deadly weapon

and infliction of serious bodily injury.

3. Petitioner’s sentence of nine (9) to eighteen (18) years was an

abuse of discretion by the sentencing court.

4. Trial counsel ineffective for not presenting mental health

testimony.

(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

fairminded 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).

Gutierrez’ 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

A. Insufficient evidence to prove Aggravated Assault

The “clearly established Federal law” governing sufficiency of the

evidence claims is set forth in the United States Supreme Court’s decision in

Jackson v. Virginia, 443 U.S. 307 (1979). Under Jackson, evidence is

sufficient to support a conviction if, “after reviewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Id. at 319.

“Jackson leaves juries broad discretion in deciding what inferences to draw

from the evidence presented at trial, requiring only that jurors ‘draw

reasonable inferences from basic facts to ultimate facts’.” Coleman v.

Johnson, 566 U.S. 650, 651 (2012) (quoting Jackson, 443 U.S. at 319).

In rejecting Gutierrez’ sufficiency of the evidence claim, the trial court

set forth the following:

Our standard of review of a challenge to the sufficiency of the

evidence is well-settled:

In reviewing sufficiency of evidence claims, we must

determine whether the evidence admitted at trial, as well

as all reasonable inferences drawn therefrom, when

viewed in the light most favorable to the verdict winner,

are sufficient to support all the elements of the offense.

Additionally, to sustain a conviction, the facts and

circumstances which the Commonwealth must prove,

must be such that every essential element of the crime

is established beyond a reasonable doubt. Admittedly,

guilty must be based on facts and conditions proved, and

not on suspicion or surmise. Entirely circumstantial

evidence is sufficient so long as the combination of the

evidence links the accused to the crime beyond a

reasonable doubt. Any doubts regarding a defendant’s

guilt may be resolved by the fact-finder unless the

evidence is so weak and inconclusive that as a matter of

law no probability of fact may be drawn from the

combined circumstances. The fact finder is free to

believe all, part, or none of the evidence presented at

trial.

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super.

2011), appeal denied, 44 A.3d 1161 (Pa. 2012) (citations

omitted).

Clearly, the Superior court applied the Pennsylvania equivalent of the

Jackson standard. (Doc. 14-1 at 4-5). See also Evans v. Court of Common

Pleas, Delaware Cnty., 959 F.2d 1227, 1233 (3d Cir. 1992) (noting that the

test for sufficiency of the evidence is the same under both Pennsylvania and

federal law). Because the Superior Court applied the correct legal standard,

its adjudication satisfies review under the “contrary to” clause of §2254(d)(1).

See, e.g., Williams, 529 U.S. at 405-06.

We next consider whether the trial court’s decision amounted to an

“unreasonable application” of Jackson.

Jackson claims face a high bar in federal habeas proceedings

because they are subject to two layers of judicial deference. First,

on direct appeal, “it is the responsibility of the jury ... to decide

what conclusions should be drawn from evidence admitted at

trial. A reviewing court may set aside the [trial court’s] verdict on

the ground of insufficient evidence only if no rational trier of fact

could have agreed with the [trial court].” Cavazos v. Smith, 565

U.S. 1 (2011). And second, on habeas review, “a federal court

may not overturn a state court decision rejecting a sufficiency of

the evidence challenge simply because the federal court

disagrees with the state court. The federal court instead may do

so only if the state court decision was ‘objectively unreasonable’.”

Ibid. (quoting Renico v. Lett, 559 U.S.766 (2010)).

- - -

[T]he only question under Jackson is whether [the state court’s]

finding was so insupportable as to fall below the threshold of bare

rationality. The state court of last review did not think so, and that

determination in turn is entitled to considerable deference under

AEDPA, 28 U.S.C. §2254(d).

Coleman, 566 U.S. at 651, 656.

Gutierrez’ sufficiency of the evidence argument raised here echoes the

argument raised in state court. (Doc. 6 at 10-26). He essentially argues that

the Commonwealth failed to meet its burden of proof to disprove Petitioner’s

claim of justifiable self-defense beyond a reasonable doubt. Specifically, he

claims that the Commonwealth “failed to prove that [he] did not reasonably

believe he was in imminent danger of death or great bodily harm and that it

was necessary to use deadly force in order to save himself from such harm”

and that he “had a duty to retreat or that [he] violated any such duty.” Id.

In considering the issue, the Superior court noted that:

Once a defendant raises self-defense,4 “the burden is upon the

Commonwealth to prove beyond a reasonable doubt that the

defendant was not acting in self-defense.” Commonwealth v.

Mouzon, 53 A.3d 738, 740 (Pa. 2012) (citation omitted). The

Commonwealth meets its burden if it proves one of the following:

the defendant did not reasonably believe he was in danger of

4 Section 505, justifiable self-defense, provides, in pertinent part, that:

(b) Limitations on justifying necessity for use of force.

* * *

(2) The use of deadly force is not justifiable under this

section unless the actor believes that such force is

necessary to protect himself against death, serious

bodily injury . . . ; nor is it justifiable if:

(i) the actor, with the intent of causing death or

serious bodily injury, provoked the use of force

against himself. . . ; or

(ii) the actor knows that he can avoid necessity of

using such force with complete safety by

retreating. . . .

18 Pa.C.S.A. §505(b)(2).

Further, “believes” or “belief” is defined in 18 Pa.C.S.A. §501

as “reasonably believes” or “reasonable belief.”

18 Pa.C.S.A. §501.

death or serious bodily injury; the defendant was the initial

aggressor; or the defendant violated his duty to retreat. See id.

Here, at trial, the Commonwealth submitted evidence that

Appellant asked Rosario-Morales to come to his room. (See N.T.

Trial, 2/06/12, at 88). Video surveillance and Rosario-Morales’

testimony established that Appellant stabbed Rosario-Morales

when the man turned away. (See N.T. Trial, 2/06/12, at 92-93;

N.T. Trial, 2/07/12, at 316). Additionally, although Rosario-

Morales admitted that he did have a knife, he stated that it was

folded in his pocket and that Appellant did not see it. (See N.T.

Trial, 2/06/12, at 92; N.T. Trial, 2/07/12, at 141-42, 219, 344).

Commonwealth eyewitness Jerome Small testified that he

observed the armed Appellant chase an unarmed Rosario-

Morales down the hall. (See N.T. Trial, 2/07/12, at 158).

Additionally, Appellant testified that he followed Rosario-Morales

after the stabbing to get away from him, although Appellant knew

that there was another exit from the third floor he could have

used. (See id. at 291). After the incident, instead of going to the

police station or turning himself in to authorities, Appellant

testified that he got rid of the knife and fled. (See id. at 306, 319-

20).

Based on the foregoing, viewing the evidence in the light most

favorable to the Commonwealth, we conclude that it was

sufficient to prove that Appellant was not in reasonable fear of

death or serious bodily injury, that he was the aggressor, and that

Appellant violated his duty to retreat. Mouzon, supra at 740,

Moreno, supra at 136.

Significantly, Gutierrez does not argue that the state court’s reliance

on the above testimony and evidence “was so insupportable as to fall below

the threshold of bare rationality.” Coleman, 566 U.S. at 656. Instead, he

argues that the testimony of the victim, as well as Police Officer, Dr. K.

Clancy, J. Small and Ms. Knight, was unreliable, inconsistent, and

contradictory, resulting in evidence being insufficient to disprove Petitioner’s

claim of justifiable self-defense beyond a reasonable doubt. (Doc. 6).

“28 U.S.C. §2254(d) gives federal habeas courts no license to

redetermine credibility of witnesses whose demeanor has been observed by

the state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422,

434 (1983). Indeed, under the Jackson standard, “the assessment of the

credibility of witnesses is generally beyond the scope of review.” Schlup v.

Delo, 513 U.S. 298, 330 (1995). The proper question is not whether the

witnesses were credible, but “whether there is sufficient evidence which, if

credited, could support the conviction.” Id. Further, Coleman cautioned

courts that Jackson does not permit “imping[ing] on the jury’s role as

factfinder” through “fine-grained factual parsing.” Coleman, 566 U.S. at 655.

Rather, “Jackson leaves juries broad discretion in deciding what inferences

to draw from the evidence presented at trial, requiring only that jurors ‘draw

reasonable inferences from basic facts to ultimate facts.’ [Jackson, 443 U.S.]

at 319.” Id.

Taking into consideration all of this evidence as a whole and viewing

the evidence in the light most favorable to the prosecution, the Court finds

that the state court’s conclusion that there was sufficient evidence to

disprove Petitioner’s self-defense claim and prove Petitioner’s guilt. There

simply is no possibility that fair-minded jurist could find that this determination

conflicts with applicable Supreme Court precedent. Nor, based on review of

the state court evidence, is it an unreasonable determination of the facts.

b. Verdict was against the weight of the evidence

To the extent that Petitioner’s second claim is that the verdict was

against the weight of the evidence, such a claim, is purely a state law claim

that is distinct from the sufficiency of the evidence claim, and, as such, it is

not cognizable in federal habeas corpus. Tibbs v. Florida, 457 U.S. 31, 37-

45 (1982) (consideration of reliability of testimony “is a hallmark of review

based on evidentiary weight, not evidentiary sufficiency”; it is different from

a claim that the evidence was insufficient to support the conviction);

Carnevale v. Sup’t, Albion SCI, 654 F. App’x 542, 548 n.5 (3d Cir. 2016) (the

argument that a verdict is against the weight of the evidence states a claim

under state law, which is not cognizable on habeas corpus); see, e.g.,

Lockhart v. Patrick, No. 3:06-cv-1291, 2014 WL 4231233, *22 (M.D. Pa. Aug.

24, 2014) (a claim that the verdict was against the weight of the evidence “is

simply not a cognizable claim in federal habeas proceedings as it raises

solely a state law claim”).

c. Sentencing court abused its discretion

Petitioner claims that “the sentence imposed was an abuse of

discretion when the state court did not take into consideration relevant

mitigating factors, which made the sentence inconsistent with the gravity of

the offense. (Doc. 6 at 27).

This claim is inappropriate for federal habeas review. Gutierrez

essentially asks the federal court to sit as an appellate court and critique a

Pennsylvania court’s discretionary sentencing decisions and application of

state law. We decline this invitation, as we must. “[I]t is not the province of a

federal habeas court to reexamine state-court determinations on state-law

questions.” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (alteration in original)

(quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ). This issue does not

implicate federal law or constitutional concerns. Therefore, the claim falls

outside the scope of Section 2254 review. See id.; 28 U.S.C. §2254(a).

d. Ineffective assistance of trial counsel

Petitioner claims that trial counsel was ineffective for failing to “uncover

and present any evidence of the Petitioner’s mental health or mental

impairment.” (Doc. 6 at 33).

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 stated that the proper standard governing

ineffective assistance of counsel claims requires the Petitioner “[t]o plead

and prove ineffective assistance of counsel a petitioner must establish: “(1)

that the underlying issue has arguable merit; (2) counsel’s actions lacked an

objective reasonable basis; and (3) actual prejudice resulted from counsel’s

act or failure to act. Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super.

2013( (en banc).” (Doc. 14-2, at 3, Gutierrez, No. 1566 MDA 2014, slip. op.

at 3). 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). Thus, we find that the Superior

Court’s decision is not contrary to Strickland.

In applying the Strickland standard, the Superior Court determined the

following:

We begin by noting that Appellant has failed to cite any pertinent

case law in the argument portion of his brief. However, trial

counsel testified at the PCRA evidentiary hearing that she spent

significant time discussing Appellant’s mental health issues with

him. Trial counsel pointed out that a pretrial evaluation of his

mental health was performed and the “evaluation was very

negative. It did not help Mr. Gutierrez at all.” N. T., 8/ 20/ 14, at

31. She maintained that it was her view that the mental health

issues might backfire, and she did not believe it would be helpful

for his self-defense claim. In this latter respect, trial counsel

opined that her strategy was to show that Appellant was a

reasonable person acting in self-defense and that discussing his

mental health problems may have led some jurors to convict. She

also testified that it was ultimately Appellant’s decision not to

pursue introducing his mental health issues. The PCRA court

determined that trial counsel acted reasonably and that Appellant

could not demonstrate prejudice.

In light of trial counsel’s testimony, we find that the PCRA court

did not err in concluding that trial counsel had a reasonable basis

for not further exploring Appellant’s mental health issues. Trial

counsel proffered that the mental health report she received was

damaging to Appellant and that she sought to portray him as a

reasonable person acting in self-defense. Providing evidence

that Appellant was mentally unstable could have undermined

that defense. Pursuing the self-defense claim argued herein was

not a decision that no competent counsel would have

undertaken. Order Affirmed.

(Doc. 14-2 at 4-5).

It is well-settled that “strategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable.” Strickland, 466 U.S. at 690. The record supports the state

court’s conclusion that defense counsel’s decision to not pursue Petitioner’s

mental health status was made after thoroughly investigating the law and

facts. Since Petitioner’s defense strategy was that he acted in self-defense,

Petitioner’s mental health issues would have undermined this defense.

Given these circumstances, the Court concludes that the Superior court

reasonably applied Strickland in holding that defense counsel’s performance

was not deficient under the first prong of the Strickland test. Accordingly, 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

16-1134-01