Kearney v. Smith

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICHARD MULIEK KEARNEY, No. 4:21-CV-01636

Petitioner, (Chief Judge Brann)

v.

BARRY SMITH, et al.,

Respondents.

MEMORANDUM OPINION

SEPTEMBER 22, 2022

Petitioner Richard Muliek Kearney filed the instant pro se petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks to overturn his 2012

convictions in the Court of Common Pleas of Fulton County, Pennsylvania.

Because Kearney cannot satisfy the stringent requirements for habeas corpus relief,

the Court will deny his Section 2254 petition.

I. BACKGROUND AND PROCEDURAL HISTORY

Kearney’s case involves four state-court criminal actions stemming from

events that occurred in February and June 2011.1 The two relevant cases for the

instant petition are docket numbers CP-29-CR-0000226-2011 (referred to

hereinafter as “226-2011”) and CP-29-CR-0000227-2011 (referred to hereinafter

1 Doc. 1-2, Commonwealth v. Kearney, Nos. 211-2011, 223-2011, 226-2011, 227-2011, at 1 (Pa.

Ct. Com. Pl. Fulton Cnty. Jan. 27, 2020) [hereinafter “PCRA Court Op.”]. For clarity, the

Court will cite to the page numbers of the PCRA court opinion itself rather than the CM/ECF

as “227-2011”). Kearney’s habeas claims primarily involve his convictions and

sentence in 227-2011.

The Court need not delve into the myriad factual issues surrounding the

numerous crimes for which Kearney was charged and convicted in the four

different criminal actions. That is because Kearney’s habeas claims principally

involve procedural issues that long preceded his trials and convictions. For the

criminal action at issue—227-2011—Kearney was tried before a jury on April 26,

2012, and convicted the same day.2 His offenses of conviction consist of unlawful

possession of a firearm, possession of a firearm without a license, and two counts

each of criminal coercion, terroristic threats, unlawful restraint, and simple

assault.3

Kearney was ultimately convicted in his other criminal cases by either jury

or bench trial.4 For the convictions in criminal actions 226-2011 and 227-2011,

the trial court imposed an aggregate sentence of 204 to 408 months’ incarceration.5

On direct appeal, the Superior Court of Pennsylvania sua sponte consolidated the

four cases and affirmed the judgments and sentences.6

2 PCRA Court Op. at 1.

3 Id.

4 Id. at 1-2.

5 Id. at 2.

6 See Commonwealth v. Kearney, 92 A.3d 51, 54-55 (Pa. Super. Ct. 2014).

In 2015, Kearney filed a petition under Pennsylvania’s Post Conviction

Relief Act (“PCRA”),7 the state’s corollary to federal habeas relief. After nearly

five years’ delay caused by multiple amended PCRA petitions, several evidentiary

hearings, and changes of representation status (Kearney ultimately ended up

proceeding pro se), the PCRA court issued an opinion granting and denying relief.8

The PCRA court granted relief only with respect to an Alleyne v. United States9

challenge to Kearney’s sentences for cases 226-2011 and 211-2011.10 All of

Kearney’s other claims for relief were denied.11

On appeal, Kearney proffered six arguments,12 which largely mirror the

claims he raises in the instant Section 2254 petition.13 On April 21, 2021, the

Superior Court rejected Kearney’s claims and affirmed the PCRA court.14

Kearney filed his Section 2254 petition in this Court in September 2021.15

The petition did not become fully briefed until May 2022, when Kearney—after

several extensions of time—filed a sprawling 92-page reply brief with nearly 200

pages of exhibits attached. Kearney’s brief is long on verbiage but short on

7 42 PA. CONS. STAT. § 9541 et seq.

8 PCRA Court Op. at 3-5.

9 570 U.S. 99 (2013).

10 See PCRA Court Op. at 3.

11 Id. at 26-27.

12 See Commonwealth v. Kearney, 253 A.3d 267, 2021 WL 1328562, at *2 (Pa. Super. Ct. Apr.

9, 2021) (nonprecedential).

13 See Doc. 1-1 at 1-2.

14 Kearney, 2021 WL 1328562, at *1.

15 Doc. 1.

substance, and he ultimately fails to establish a right to relief under the stringent

requirements of Section 2254.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)16

mandates that petitioners demonstrate that they have “exhausted the remedies

available in the courts of the State” before seeking federal habeas relief.17 An

exhausted claim is one that has been “fairly presented” to the state courts “by

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

and which has been adjudicated on the merits.18

When a claim is properly exhausted and then raised on federal habeas

review, the level of deference afforded to the state court decision is substantial.19

The AEDPA “does not ‘permit federal judges to . . . casually second-guess the

decisions of their state-court colleagues or defense attorneys.’”20 Accordingly,

under Section 2254(d), federal habeas relief is unavailable for exhausted claims

unless the state-court adjudication “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law . . . or

16 28 U.S.C. §§ 2241–2254.

17 Id. § 2254(b)(1)(A).

18 Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting O’Sullivan v. Boerckel, 526

U.S. 838, 844-45 (1999)); see also Johnson v. Williams, 568 U.S. 289, 302 (2013).

19 Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017), cert. denied sub nom.,

Gilmore v. Bey, 138 S. Ct. 740 (2018) (mem.).

20 Collins v. Sec’y of Pa. Dep’t of Corr., 742 F.3d 528, 543 (3d Cir. 2014) (quoting Burt v. Titlow,

571 U.S. 12, 15 (2013)).

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.”21 An unreasonable

application of Supreme Court precedent includes situations where “the state court

identifies the correct governing legal rule . . . but unreasonably applies it to the

facts of the particular state prisoner’s case.”22

This is an intentionally difficult standard to meet.23 Section 2254(d)

“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”

clearly established Supreme Court precedent.24 Thus, to obtain federal habeas

relief on an exhausted claim, a state prisoner must demonstrate that the state

court’s ruling on the claim “was so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility of

fairminded disagreement.”25

Finally, if a state court has ruled on the merits of a claim, a federal habeas

petitioner generally must meet Section 2254(d)’s requirements “on the record that

was before that state court.”26 Absent compelling circumstances,27 district courts

21 28 U.S.C. § 2254(d).

22 White v. Woodall, 572 U.S. 415, 425 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 407

(2000)).

23 Harrington v. Richter, 562 U.S. 86, 102 (2011).

24 Id.

25 Id. at 103.

26 Cullen v. Pinholster, 563 U.S. 170, 185 (2011) (footnote omitted).

27 See 28 U.S.C. § 2254(e)(2).

cannot supplement the existing state-court record for claims adjudicated on the

merits.28 “Otherwise, federal habeas petitioners would be able to circumvent the

finality of state court judgments by establishing a new factual record” on federal

habeas review.29

III. DISCUSSION

Kearney raises five claims for relief in his Section 2254 petition. His first

three claims are interrelated and involve the initiation of criminal action 227-2011.

Kearney contends that, for various reasons, his due process rights were violated,

indelibly tainting the eventual convictions in that case. His last two claims assert

ineffective assistance of counsel. None of Kearney’s claims have merit.

A. Due Process Challenges

Like the state courts acknowledged, Kearney’s due process claims are

interrelated and cannot be reviewed in isolation. And they require some factual

background.

Kearney admits that he was already incarcerated on other charges when the

criminal process was initiated in Magisterial District Court for criminal case 227-

2011 (Magisterial District Court Docket No. MJ-39401-CR-34-2011, hereinafter

CR-34-2011).30 It appears that the local public defender had been appointed to

28 Brown v. Wenerowicz, 663 F.3d 619, 629 (3d Cir. 2011).

29 Id.

30 See Doc. 29 at 30.

represent Kearney on at least one other criminal matter but moved to withdraw

based on a conflict of interest.31

On July 19, 2011, Common Pleas Judge Shawn D. Meyers signed an order

appointing Breschi & Associates to represent Kearney, which order was filed on

July 25, 2011.32 This order was captioned only with a typewritten “offense

tracking number” or “OTN,” as Kearney’s multiple criminal cases were still before

the Magisterial District Court, no preliminary hearings had been held, and the

cases had not yet been bound over to the Court of Common Pleas.33 During a

PCRA evidentiary hearing, the Clerk of Courts for Fulton County testified that,

when the cases were bound over to the Court of Common Pleas, she handwrote all

four criminal action numbers (211-2011, 223-2011, 226-2011, and 227-2011) on

this July 19, 2011 order.34

On July 29, 2011, Breschi & Associates sent a letter to Magisterial District

Judge Wendy Mellott, seeking a continuance for a hearing scheduled for August 1,

2011.35 That letter contained the Magisterial District Court docket numbers for

four of Kearney’s cases: Nos. CR-80-2011, CR-34-2011, CR-32-2011, and CR-28-

2011—with CR-34-2011 being the at-issue docket number.36

31 See PCRA Court Op. at 6.

32 Id.; see also Doc. 29-1 at 8.

33 PCRA Court Op. at 6; Doc. 29-1 at 8.

34 PCRA Court Op. at 6.

35 Doc. 29-1 at 6.

36 Id.

It is this July 19 order and July 29 letter that largely constitute the basis for

Kearney’s due process claims. According to Kearney, he had no knowledge of

case number 227-2011/CR-34-2011 until two months later when he received notice

of the upcoming preliminary hearing.37 Kearney avers that this criminal action was

commenced against him without probable cause,38 an arrest warrant, or a

summons—in violation of the Pennsylvania Rules of Criminal Procedure—

essentially because counsel (Breschi & Associates) had been erroneously

appointed without his knowledge or request and had “waived” Kearney’s right to

challenge initiation of the action when they moved for a continuance.39 Kearney

claims that the absence of these “Constitutional safeguards” invalidates his

conviction on case 227-2011.

Kearney’s due process claims were fully exhausted in state court.40

Accordingly, this Court’s deference to the state court’s adjudication is

substantial.41 Kearney is entitled to relief only if he can show that the state court’s

ruling “was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility of fairminded

disagreement.”42 Kearney has not made this showing.

37 See Doc. 1-1 at 3; Kearney, 2021 WL 1328562, at *5.

38 Kearney claims the affidavit of probable cause was unsworn. See Doc. 1-1 at 2.

39 See Doc. 1-1 at 3.

40 See generally Kearney, 2021 WL 1328562, at *2-6.

41 Bey, 856 F.3d at 236.

42 Harrington, 562 U.S. at 103.

The Superior Court of Pennsylvania adeptly addressed each of Kearney’s

due process claims. As to subject matter jurisdiction to prosecute (Kearney’s

Ground 3 in the instant petition), the Superior Court found that Kearney had

received notice of the preliminary hearing and that the preliminary hearing was

properly held.43 Kearney was formally arraigned after the hearing and was also

provided an information, statement of rights, and bill of particulars.44 These

procedural protections provided Kearney with the due process that was required to

proceed to trial and ultimately to convict him.45 Indeed, any issue that Kearney

had with, for example, counsel being appointed for case 227-2011 without his

request, not being provided an arrest warrant, or the affidavit of probable cause

being unsworn could have been presented at the preliminary hearing.

The Superior Court further determined that, even if certain state Rules of

Criminal Procedure had been violated or early-stage procedural irregularities

existed (Kearney’s Ground 1), those violations did not “equate to a defect in

jurisdiction or due process.”46 The panel noted that, absent prejudice to a criminal

defendant, such defects can be remedied, and Kearney had failed to establish how

he had been prejudiced by the issues complained of regarding the commencement

43 Kearney, 2021 WL 1328562, at *4-5.

44 Id., at *5.

45 Id.

46 Id., at *6.

of criminal case 227-2011.47

There is, quite simply, nothing in the Superior Court’s opinion that is

contrary to, or which unreasonably applies, federal law. All the various procedural

defects Kearney alleges involve issues that are remedied by his preliminary

hearing, information, bill of particulars, arraignment, and trial. Due process under

the Fourteenth Amendment generally requires notice, a meaningful opportunity to

defend oneself against the offenses charged, and a jury finding of guilt beyond a

reasonable doubt.48 Kearney undoubtedly received these procedural protections.

Moreover, as noted by the Superior Court, Kearney did not establish, and

still has not established, how he was prejudiced such that the procedural defects he

alleges should result in the extreme measure of overturning multiple convictions

reached by jury verdict. Kearney spends a great amount of time arguing that he

should have been provided better notice so that he could have corrected the clerical

47 Id. As for Kearney’s Ground 2, that claim is not cognizable in federal court. In that ground,

Kearney asserts that the state court “failed to correct the July 19, 2011 Order . . . which deprived

Petitioner from showing a true and correct depiction of the record in order to render the

proceedings that transpired thereafter a nullity.” Doc. 1-1 at 2. This type of claim of state-

court error does not implicate a constitutional or federal right and is therefore beyond the

habeas jurisdiction of this Court. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v.

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

reexamine state-court determinations on state-law questions.”). To the extent that Ground 2

raises other procedural defects, those defects do not entitle Kearney to habeas relief, as further

explained above.

48 Jackson v. Virginia, 443 U.S. 307, 314 (1979); Musacchio v. United States, 577 U.S. 237, 243

(2016) (quoting Jackson, 443 U.S. at 314-15); see also Frisbie v. Collins, 342 U.S. 519, 522

(1951) (“[D]ue process of law is satisfied when one present in court is convicted of a crime

after having been fairly appri[s]ed of the charges against him and after a fair trial in accordance

with constitutional procedural safeguards.”).

errors or the allegedly erroneous appointment of counsel,49 but he fails to explain

how the outcome of his criminal proceedings might have been different if the state-

court procedural violations had not occurred.50 That is because Kearney received

the constitutional protections required by the Due Process Clause at subsequent

stages of his criminal prosecution (i.e., preliminary hearing, information, bill of

particulars, formal arraignment, and jury trial).51

B. Ineffective-Assistance-of-Counsel Claims

A collateral attack based on ineffective assistance of counsel is governed by

the familiar two-pronged test set forth in Strickland v. Washington.52 To prevail on

such a claim, a defendant must demonstrate that (1) counsel’s representation fell

below an objective level of reasonableness based on prevailing professional norms,

and (2) the deficient representation was prejudicial.53 The defendant bears the

burden of proving both prongs.54

49 See, e.g., Doc. 29 at 24-26.

50 At one point in his reply brief, Kearney claims—without any legal foundation—that case 227-

2011 would have been dismissed with prejudice because the “collective acts of the Fulton

County Court” and its officers called into question that court’s jurisdiction and integrity. Doc.

29 at 50. The Court finds this argument both unpersuasive and legally baseless.

51 Kearney at times argues that the procedural defects were “structural” errors, but he is incorrect.

A structural defect exists when there is a constitutional violation that affects “[t]he entire

conduct of the trial from beginning to end.” Arizona v. Fulminante, 499 U.S. 279, 309-10

(1991). Examples of such rare and serious constitutional violations include the total deprivation

of the right to counsel and trial before a judge who is not impartial. Id. at 310. The defects

Kearney repeatedly complains of do not constitute structural errors that require the reversal of

his convictions.

52 466 U.S. 668 (1984).

53 Strickland, 466 U.S. at 687-88.

54 See id. at 687.

In determining whether counsel has satisfied the objective standard of

reasonableness under the first prong, courts must be highly deferential toward

counsel’s conduct.55 There is a strong presumption that counsel’s performance

falls within the wide range of reasonable professional assistance.56 Only a “rare

claim” of ineffectiveness of counsel should succeed “under the properly deferential

standard to be applied in scrutinizing counsel’s performance.”57

To satisfy the prejudice prong, the defendant must establish a reasonable

probability that, but for counsel’s errors, the outcome of the proceeding would

have been different.58 The district court need not conduct its analysis of the two

prongs in a particular order or even address both prongs of the inquiry if the

defendant makes an insufficient showing in one.59

When a claim of ineffective assistance of counsel has been exhausted in

state court, review of that claim by a federal habeas court is significantly

circumscribed. The federal court does not review the ineffectiveness claim de

novo; rather, “[t]he pivotal question is whether the state court’s application of the

Strickland standard was unreasonable.”60 Under this “doubly” deferential

standard, “so long as fairminded jurists could disagree on the correctness of the

55 Id. at 689.

56 See United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989).

57 Id. at 711 (citing Strickland, 466 U.S. at 689-90).

58 Strickland, 466 U.S. at 694.

59 See id. at 697; United States v. Lilly, 536 F.3d 190, 196 (3d Cir. 2008).

60 Richter, 562 U.S. at 101 (emphasis added); Collins, 742 F.3d at 547-48.

state court’s decision,” a state court’s determination that a Strickland claim lacks

merit precludes federal habeas relief.61

Kearney raises two claims of ineffective assistance of counsel. He first

asserts that his trial counsel was constitutionally ineffective for failing to raise a

jurisdictional challenge based on his claim “of never being formally charged before

criminal proceedings were instituted against him.”62 He also alleges that his trial

counsel was ineffective for failing to verify the accuracy of his offense gravity

score for the firearms charges at sentencing.63 Both claims have been exhausted,

and neither warrants relief.

Kearney’s first claim requires only a brief discussion. He essentially argues

that his trial attorney was ineffective for failing to raise the purported procedural

defects in the commencement of case 227-2011. The Superior Court found that

this claim fails because Kearney cannot show prejudice.64 This determination was

a reasonable application of Strickland.

As the Superior Court explained, even if successful challenges were made

prior to or at the preliminary hearing, it would “not preclude the Commonwealth

from re-filing charges and beginning the process anew.”65 Kearney has presented

61 Richter, 562 U.S. at 101, 105 (citation omitted).

62 Doc. 1-1 at 2.

63 Id.

64 Kearney, 2021 WL 1328562, at *6 & n.17.

65 Commonwealth v. Stultz, 114 A.3d 865, 881 (Pa. Super. Ct. 2015); see also Commonwealth v.

Sanchez, 82 A.3d 943, 984 (Pa. 2013) (explaining that after a criminal defendant has been tried

no persuasive evidence or argument that, had the serious charges he was facing

been dismissed due to early procedural missteps, the Commonwealth would not

have simply refiled the charges to correct those deficiencies.66 Accordingly, the

state court’s determination on this ineffectiveness claim was not unreasonable.

Kearney’s second ineffectiveness claim alleges that his attorney was

deficient for failing to challenge the state court’s sentencing guidelines’

calculation. He argues that the sentencing court—without sufficient evidence—

found that the gun at issue was loaded and thereby improperly increased his

offense gravity score, and that his attorney was deficient for failing to challenge

this determination.

The Superior Court held that the facts, as found by the sentencing court (and

PCRA court), were sufficient to find that the handgun at issue was loaded.67 Thus,

the Superior Court concluded, Kearney’s trial counsel could not have been

ineffective for failing to raise a meritless objection to the sentencing court’s

calculations.68 This determination was also a reasonable application of Strickland.

Even if, as Kearney claims, his trial counsel’s performance fell below an

objectively reasonable standard, Kearney cannot establish prejudice. Kearney

and found guilty of the crime or crimes charged, “any defect in the preliminary hearing is

rendered immaterial”).

66 See Stultz, 114 A.3d at 881; see also PA. R. CRIM. P. 544(A) (providing procedure for re-filing

of charges after dismissal or withdrawal at, or prior to, preliminary hearing).

67 Kearney, 2021 WL 1328562, at *6-7.

68 Id., at *7.

argues that the state courts “relied upon the limited testimony of Ashley Ramp to

sustain the higher [offense gravity score],” and that this testimony was unreliable.69

But Kearney’s assertion is incomplete. The Superior Court, like the sentencing

and PCRA court, relied on evidence from three different witnesses.70 Specifically,

victim Tabetha Mellot testified that the silver handgun presented at trial was the

gun Kearney had pointed at her in her home, and Trooper Rush testified that the

“silver handgun identified by the witnesses contained a magazine with bullets

when obtained by the police.”71 As the Superior Court explained, this

circumstantial evidence was sufficient to find that the handgun was loaded, thus

implicating a higher offense gravity score. Consequently, even if Kearney’s

attorney had objected to the sentencing court’s calculations, that objection would

have been meritless. Kearney cannot show prejudice, and therefore the Superior

Court’s determination on this Strickland claim was reasonable.

69 Doc. 29 at 57.

70 Kearney, 2021 WL 1328562, at *6.

71 Id. (citing PCRA Court Op. at 5-6).

IV. CONCLUSION

For the foregoing reasons, the Court will deny Kearney’s petition for a writ

of habeas corpus under 28 U.S.C. § 2254. The Court will likewise deny a

certificate of appealability, as Kearney has failed to make a substantial showing of

the denial of a constitutional right.72 An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

72 See 28 U.S.C. § 2253(c)(2).