Sawyer v. SUPT.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WALTER KEITH SAWYER, No. 1:19-CV-00062

Petitioner, (Chief Judge Brann)

v.

BOBBI JO SALAMON,1

Respondent.

MEMORANDUM OPINION

APRIL 5, 2023

Petitioner Walter Keith Sawyer initiated this action in January 2019 by filing

a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Following a lengthy

stay to exhaust additional claims in state court, Sawyer filed a supplemental habeas

petition in September 2022, asserting four more grounds for relief. After careful

consideration, the Court will deny Sawyer’s Section 2254 petitions.

I. BACKGROUND AND PROCEDURAL HISTORY

The convictions underlying the instant petition stem from an incident that

occurred over a decade ago. In December 2012, Sawyer picked up a sixteen-year-

old girl (B.B.) at a bus station in Harrisburg, Pennsylvania, offering to drive her to

1 At the time of filing, Sawyer was incarcerated at SCI Retreat and properly named the

superintendent of that facility as the respondent in this habeas action. See Doc. 1 at 1. Sawyer

is currently incarcerated at SCI Rockview, so the Court will substitute the proper respondent,

SCI Rockview superintendent Bobbi Jo Salamon. See Barry v. Bergen Cnty. Probation Dep’t,

a gas station where she could buy food while she waited for her connecting bus to

Hazelton.2 B.B. accepted the offer and entered Sawyer’s vehicle.3 Instead of

driving to a gas station, Sawyer took B.B. to a secluded parking lot under a nearby

bridge and threatened B.B. that if she did not have sex with him, he would not

drive her back to the bus station in time to catch the bus to Hazelton.4 As Sawyer

began to undress B.B. in the back seat of his car, a police officer—on routine

patrol in the area—encountered Sawyer’s vehicle.5 The officer questioned B.B.

about what was happening, and she informed him of Sawyer’s attempt to coerce

her into having sex.6 The officer also questioned Sawyer, who provided the birth

certificate and Social Security card of another individual as his own identification.7

In May 2013, Sawyer was charged with kidnapping,8 unlawful restraint,

false imprisonment, unlawful contact with a minor, criminal attempt indecent

2 Commonwealth v. Sawyer, No. 1530 MDA 2014, 2015 WL 7288066, at *1 (Pa. Super. Ct. Apr.

22, 2015) (nonprecedential).

3 Id.

4 Id. There is conflicting information in the record regarding whether Sawyer took B.B. to the

gas station and then to the bridge, or straight to the bridge. This factual discrepancy, however,

is immaterial to any of the claims in this case.

5 Id.

6 Id.

7 Id.

8 It appears that Sawyer was charged with kidnapping under 18 PA. CONS. STAT. § 2901(a)(1)

and (a)(2). See Sawyer, No. 1530 MDA 2014, 2015 WL 7288066, at *6 n.1. Subdivision

(a)(1) requires that the defendant removed a person a substantial distance or confined a person

for a substantial period in a place of isolation with the intent “to hold [the person] for ransom

or reward, or as a shield or hostage.” 18 PA. CONS. STAT. § 2901(a)(1). Subdivision (a)(2),

which appears more applicable to the facts of Sawyer’s case, requires that the defendant

removed a person a substantial distance or confined a person for a substantial period in a place

of isolation with the intent to “facilitate commission of any felony or flight thereafter.” 18 PA.

assault, open lewdness, false identification to law enforcement, and defiant

trespass.9 Following a jury trial, Sawyer was found guilty of kidnapping to

facilitate a felony,10 unlawful contact with a minor – open lewdness,11 and false

identification to law enforcement.12 13 In April 2014, he was sentenced to 25 to 50

years’ imprisonment on the kidnapping count, a concurrent sentence of 5 to 10

years’ imprisonment for unlawful contact with a minor, and a concurrent sentence

of 1 to 2 years’ imprisonment for false identification.14 The 25- to 50-year

sentence for kidnapping was the result of Sawyer being sentenced under the

mandatory minimum “three strikes” provision of 42 PA. CONS. STAT. § 9714 for

having two prior convictions for crimes of violence.15

Sawyer, through counsel, filed a timely post-sentence motion requesting

modification of the sentence for the false identification conviction (as that sentence

exceeded the maximum allowed by law) and raising a weight of the evidence

claim.16 Prior to the trial court ruling on that motion, Sawyer moved to proceed

pro se.17 The trial court held a hearing pursuant to Commonwealth v. Grazier,18

9 See Sawyer, No. 1530 MDA 2014, 2015 WL 7288066, at *1, 6 (incorporating Aug. 6, 2014

trial court opinion issued pursuant to PA. R. APP. P. 1925(a)).

10 18 PA. CONS. STAT. § 2901(a)(2).

11 Id. § 6318(a)(2).

12 Id. § 4914(a).

13 See Sawyer, No. 1530 MDA 2014, 2015 WL 7288066, at *1, 6.

14 Id., at *1, 6.

15 See id., at *1, 13; 42 PA. CONS. STAT. § 9714(a)(2).

16 Sawyer, No. 1530 MDA 2014, 2015 WL 7288066, at *6, 9.

17 Id., at *6.

informing Sawyer of his right to counsel and ultimately permitting Sawyer to

exercise his constitutional prerogative to represent himself.19 The trial court

additionally modified the false-identification sentence during this hearing to reflect

the one-year maximum penalty permitted by state law.20

Sawyer filed a pro se amendment to the counseled post-sentence motions,

raising additional claims concerning (1) lack of subject matter jurisdiction due to

the absence of an arrest warrant and preliminary arraignment; (2) failure by the

Commonwealth to present at the preliminary hearing or by way of formal

amendment to the charging documents the charge of unlawful contact with a

minor; (3) a speedy trial violation; (4) unlawful delay by the prosecution resulting

in destruction of video evidence; and (5) an illegal sentence under the recidivist

statute because Sawyer did not have two prior crimes of violence.21

The trial court agreed with Sawyer only as to his illegal sentence claim,

finding that he had just one prior crime of violence and therefore should have been

sentenced to a mandatory minimum term of 10 to 20 years (rather than 25 to 50

years) on the kidnapping conviction.22 Notably, in the body of the trial court’s

Rule 1925(a) opinion, the court correctly stated the revised kidnapping sentence as

19 Sawyer, No. 1530 MDA 2014, 2015 WL 7288066, at *6.

20 Id., at *6, 9.

21 See id., at *10-13.

“120-240 months of incarceration”23; however, in the opinion’s closing sentence—

in what was likely a scrivener’s error—the court indicated that it was resentencing

Sawyer on the kidnapping charge to “120-140 months” of imprisonment.24 This

“120-140 months” amended judgment of sentence also appeared on the state-court

docket.25

Sawyer, continuing to act pro se, appealed to the Superior Court of

Pennsylvania. The Superior Court rejected all Sawyer’s claims except his

challenge to the “120-140 months” sentence for kidnapping.26 The panel assumed

a scrivener’s error but vacated the judgment of sentence and remanded to the trial

court for resentencing.27 The trial court, as expected, resentenced Sawyer to 120 to

240 months’ imprisonment on the kidnapping charge.28

After resentencing, Sawyer attempted another direct appeal, raising seven

issues for review.29 The Superior Court, however, observed that Sawyer was “on

direct appeal following remand for the limited purpose of correcting an illegal

sentence,” and thus it could not reach the merits of six out of seven of Sawyer’s

23 See 42 PA. CONS. STAT. § 9714(a.1) (“An offender sentenced to a mandatory minimum

sentence under this section shall be sentenced to a maximum sentence equal to twice the

mandatory minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating to sentence of

imprisonment for felony) or any other provision of this title or other statute to the contrary.”).

24 See Sawyer, No. 1530 MDA 2014, 2015 WL 7288066, at *2 n.3, 13, 14 (emphasis supplied).

25 See id., at *2 n.3.

26 See id., at *1, 6.

27 Id., at *6.

28 See Commonwealth v. Sawyer, No. 1981 MDA 2015, 2016 WL 5340506, at *2 (Pa. Super. Ct.

July 19, 2016) (nonprecedential).

claims.30 The panel then reviewed and rejected Sawyer’s only cognizable claim: a

challenge to his new sentence under the recidivist statute.31 In rejecting Sawyer’s

remaining claim, the Superior Court reasoned that the legal questions presented

had already been resolved during Sawyer’s previous appeal and therefore the “law

of the case doctrine” precluded the court from revisiting those issues.32 On

December 28, 2016, the Supreme Court of Pennsylvania denied Sawyer’s petition

for allowance of appeal.33

Sawyer then began his lengthy pursuit of post-conviction relief. He filed his

first pro se petition under Pennsylvania’s Post Conviction Relief Act (PCRA)34 in

January 2017.35 The PCRA court appointed counsel, who filed a supplemental

PCRA petition in April 2017.36 An evidentiary hearing was held on July 25, 2017,

after which the PCRA court dismissed Sawyer’s petition.37 The Superior Court

denied Sawyer’s counseled PCRA appeal on October 16, 2018.38 Sawyer filed his

first Section 2254 petition in this Court approximately two months later.39

30 Id.

31 Id., at *2-3.

32 Id.

33 Commonwealth v. Sawyer, No. 607 MAL 2016, 164 A.3d 477 (Pa. 2016) (table).

34 42 PA. CONS. STAT. § 9541 et seq.

35 Commonwealth v. Sawyer, No. 433 MDA 2018, 2018 WL 4998304, at *2 (Pa. Super. Ct. Oct.

16, 2018) (nonprecedential).

36 Id.

37 Id.

38 Id., at *1, 6.

On June 3, 2019, the Court granted Sawyer’s request for a stay while he

pursued additional state-court relief.40 Sawyer had apparently filed a second pro se

PCRA petition in May 2019, which was then followed by a counseled

supplemental petition in September 2019.41 In his second PCRA petition, Sawyer

raised a claim regarding an alleged recantation made by B.B. to a private

investigator hired by Sawyer’s family.42 The PCRA court dismissed Sawyer’s

second petition in January 2020 and the Superior Court affirmed.43 The panel

found that Sawyer had failed to establish why “he could not have obtained this

information from the victim” earlier or why “he [had] waited until approximately

six years after the incident and four years after his trial to pursue this

information.”44 The Superior Court concluded that Sawyer could not meet the

“new facts” exception to the PCRA’s one-year statute of limitations,45 and

therefore his petition was untimely.46

Undeterred, Sawyer filed a third pro se PCRA petition in January 2021, as

well as a “Petition for Extraordinary Relief Illegal Sentence.”47 In these post-

40 Doc. 13.

41 See Commonwealth v. Sawyer, No. 287 MDA 2020, 2020 WL 6544581, at *2 (Pa. Super. Ct.

Nov. 6, 2020) (nonprecedential).

42 Id.

43 Id., at *2-3.

44 Id., at *3.

45 See 42 PA. CONS. STAT. § 9545(b)(1)(ii) (requiring petitioner to allege and prove that “the facts

upon which the claim is predicated were unknown to the petitioner and could not have been

ascertained by the exercise of due diligence”).

46 See Sawyer, No. 287 MDA 2020, 2020 WL 6544581, at *3.

47 See Commonwealth v. Sawyer, No. 1213 MDA 2021, 2022 WL 1584836, at *2 (Pa. Super. Ct.

conviction filings, Sawyer claimed that had been wrongfully sentenced under the

recidivist statute (Section 9714) because he allegedly had no prior convictions that

qualify as a “strike.”48 The PCRA court dismissed Sawyer’s third PCRA petition

as untimely and, in May 2022, the Superior Court affirmed on the same basis.49

Sawyer returned to federal court in June 2022 and moved to lift the stay in

his case.50 He filed a “supplemental” Section 2254 petition three months later,

raising four additional grounds for habeas relief.51 Sawyer’s initial and

supplemental petitions are fully briefed and ripe for disposition.

II. STANDARDS OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)52

mandates that petitioners demonstrate that they have “exhausted the remedies

available in the courts of the State” before seeking federal habeas relief.53 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.54

48 See id.

49 Id., at *2, 3.

50 See Doc. 14.

51 See generally Doc. 19.

52 28 U.S.C. §§ 2241-2254.

53 Id. § 2254(b)(1)(A).

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

If a state prisoner has not fairly presented a claim to the state courts “but

state law clearly forecloses review, exhaustion is excused, but the doctrine of

procedural default may come into play.”55 Generally, if a prisoner has

procedurally defaulted on a claim by failing to raise it in state-court proceedings, a

federal habeas court will not review the merits of the claim, even one that

implicates constitutional concerns.56

A few limited exceptions to this rule exist. One exception is that “[a]

prisoner may obtain federal review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.”57 “Cause for a procedural

default exists where something external to the petitioner, something that cannot

fairly be attributed to him[,] . . . impeded [his] efforts to comply with the State’s

procedural rule.”58 To establish prejudice, a petitioner must show not merely that

there were errors that created a possibility of prejudice, but that they “worked to

his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.”59 If cause and prejudice are established, the federal

court reviews the claim de novo “because the state court did not consider the claim

55 Carpenter, 296 F.3d at 146 (citations omitted).

56 Martinez v. Ryan, 566 U.S. 1, 9 (2012) (citing Coleman v. Thompson, 501 U.S. 722, 747-48

(1991); Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)).

57 Id. at 10 (citing Coleman, 501 U.S. at 750).

58 Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original) (citations and internal

quotation marks omitted).

59 Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United States v. Frady, 456 U.S.

on the merits.”60

Another rare exception that will excuse a procedural default is if the

petitioner can show that “failure to consider the claim will result in a fundamental

‘miscarriage of justice.’”61 To satisfy the “fundamental miscarriage of justice”

exception, a petitioner typically will have to show actual innocence.62

III. DISCUSSION

Sawyer raises a bevy of claims in his initial and supplemental Section 2254

petitions. Many of them are unexhausted and procedurally defaulted. The Court

will examine Sawyer’s claims in turn, subdivided by each petition filed.

A. Initial Section 2254 Petition

Sawyer’s initial Section 2254 petition raises two grounds for relief: a

sufficiency of the evidence challenge (Ground One) and six interrelated claims that

Sawyer describes as “ineffective assistance of counsel” and “trial court error”

(Ground Two). The Court begins with Sawyer’s sufficiency claim.

1. Ground One: Sufficiency of the Evidence

Sawyer maintains that the evidence at trial was insufficient to sustain his

convictions for kidnapping and unlawful contact with a minor. Sawyer argues that,

because the jury acquitted him on the charge of attempted indecent assault, it

60 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.) (citation omitted).

61 Carpenter, 296 F.3d at 146 (quoting Coleman, 501 U.S. at 750).

follows that there was insufficient evidence to convict him for kidnapping or

unlawful contact with a minor, thereby resulting in inconsistent verdicts and a due

process violation. This claim, however, is procedurally defaulted and therefore

unreviewable.

During his first direct appeal, Sawyer asserted a weight of the evidence—not

a sufficiency of the evidence—challenge with the trial court in his “statement of

errors complained of on appeal,” i.e., his statement under Pennsylvania Rule of

Appellate Procedure 1925(b). The Superior Court made clear that, although

Sawyer was attempting to argue inconsistent verdicts (and thus insufficient

evidence) in his appellate brief, he had not raised that claim with the trial court in

his Rule 1925(b) statement as required by Pennsylvania law.63 Specifically, the

panel explained,

In his Rule 1925(b) statement, [Sawyer] included a boilerplate

challenge to the weight of the evidence. Likewise, in the statement of

questions presented, [Sawyer] also couched this issue in terms of

weight of the evidence. [C]laiming “the verdict is contrary to the

weight of the evidence concedes that there is sufficient evidence to

sustain the verdict . . . .” Commonwealth v. Moreno, 14 A.3d 133, 136

(Pa. Super. 2011), appeal denied, 615 Pa. 791, 44 A.3d 1161 (2012).

Here, [Sawyer]’s proposed argument actually implicates the sufficiency

of the evidence rather than its weight. See Commonwealth v. Miller,

613 Pa. 584, 588, 35 A.3d 1206, 1208 (2012) (stating inconsistent

verdicts “are allowed to stand so long as the evidence is sufficient to

support the conviction”).64

63 Sawyer, No. 1530 MDA 2014, 2015 WL 7288066, at *2.

The Superior Court thus held that Sawyer had waived his claim regarding

sufficiency of the evidence.65

Rule 1925(b) is an “independent and adequate” state procedural rule, and the

Superior Court’s determination that Sawyer had waived his sufficiency claim by

failing to adhere to Rule 1925(b) generally bars federal habeas review.66 Sawyer

has not established cause or prejudice to excuse his procedural default of this post-

conviction claim,67 and therefore the Court is precluded from reviewing it.68

It is of no matter that Sawyer attempted to raise a sufficiency of the evidence

claim as part of his second direct appeal.69 As the Superior Court aptly explained,

that second appeal followed remand for the limited purpose of correcting an illegal

65 Id., at *2 (citing Commonwealth v. Castillo, 888 A.2d 775 (2005) (reaffirming general rule that

any issue not included in Rule 1925(b) statement is deemed waived for purposes of appellate

review)); see also PA. R. APP. P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or

not raised in accordance with the provisions of this paragraph (b)(4) are waived.”).

66 See Coleman v. Thompson, 501 U.S. 722, 729-32 (1991); Buck v. Colleran, 115 F. App’x 526,

528 (3d Cir. 2004) (nonprecedential) (finding claims not properly raised in Rule 1925(b)

statement to be procedurally defaulted).

67 It appears that Sawyer has only himself to blame for default because, as noted above, he chose

to represent himself on direct appeal. In his supplemental Section 2254 petition, Sawyer

incorrectly claims that there was an “egregious error of having an untrained person represent

themself on Direct Appeal, a Constitutional violation of a magnitude not seen often.” Doc. 19

at 3. There was, of course, no such constitutional violation because Sawyer waived his right

to counsel at a hearing held specifically to determine whether he understood his right to counsel

and desired to knowingly and intelligently waive that right.

68 See Martinez, 566 U.S. at 9 (“[U]nder [the doctrine of procedural default,] a federal court will

not review the merits of claims, including constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state procedural rule. A state court’s invocation

of a procedural rule to deny a prisoner’s claims precludes federal review of the claims if, among

other requisites, the state procedural rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and consistently followed.” (citations omitted));

Cox v. Horn, 757 F.3d 113, 118-19 (3d Cir. 2014).

69 See Doc. 2 at 99; Doc. 2-1 at 2-4 (attempting to assert, in his brief on appeal from resentencing,

sentence, so the panel could not reach the merits of Sawyer’s other, unrelated

arguments, including sufficiency of the evidence.70 Hence, the fact that Sawyer

improperly raised a sufficiency argument during his second direct appeal does not

alter the conclusion that he procedurally defaulted this claim and it is therefore

unreviewable.

The Court additionally finds that this claim is meritless. Sawyer contends

that his acquittal on the charge of attempted indecent assault means that he

necessarily should have been acquitted on the charges of kidnapping and unlawful

contact. Sawyer argues that “both the Kidnapping to Facilitate a Felony and the

Unlawful Contact with a Minor requ[i]re that the element of [the underlying felony

of] Criminal Attempt Indecent Assault be proven.”71

Sawyer is wrong. The crime of unlawful contact with a minor for the

purpose of committing one of the enumerated prohibited offenses (the statute lists

six of them) does not require the criminal defendant to commit the underlying

prohibited offense, let alone be convicted for it. As the Superior Court admonished

in Commonwealth v. Morgan, once a person “contacts or communicates with the

minor for the purpose of engaging in the prohibited activity, the crime of unlawful

70 See Sawyer, No. 1981 MDA 2015, 2016 WL 5340506, at *2 (citing Commonwealth v.

Anderson, 801 A.2d 1264, 1266 (Pa. Super. Ct. 2002) (noting that, on direct review following

remand for resentencing, the only issues subject to appellate scrutiny are challenges to the

sentence imposed on remand); Commonwealth v. Lawson, 789 A.2d 252, 253 (Pa. Super. Ct.

2001) (“[W]here a case is remanded to resolve a limited issue, only matters related to the issue

on remand may be appealed.”)).

contact with a minor has been completed. Actual [commission of the underlying

prohibited activity] is not an element of the crime contemplated in 18 Pa.C.S. §

6318. Therefore, the actor need not be successful in completing the purpose of his

contact or communication with the minor.”72

The same is true for kidnapping to facilitate a felony. The final element of

that crime is the mens rea of intending to “facilitate commission of any felony or

flight therefrom.”73 Thus, kidnapping to facilitate a felony can be completed even

if the underlying felony is not.74 Accordingly, Sawyer’s sufficiency of the

evidence claim is both procedurally defaulted and meritless.

2. Ground Two: Ineffective Assistance, Trial Court Error

Under the “Ground Two” umbrella of his initial petition, Sawyer attempts to

assert six interrelated claims that he describes as “ineffective assistance of trial

counsel” and “trial court error.”75 Sawyer appears to have raised most of these

72 Commonwealth v. Morgan, 913 A.2d 906, 910-11 (Pa. Super. Ct. 2006).

73 See 18 PA. CONS. STAT. § 2901(a)(2).

74 See Commonwealth v. King, 786 A.2d 993, 994 (Pa. Super. Ct. 2001) (“[Section 2901(a)(2)]

states, inter alia, that the kidnapper must kidnap his victim with the intent to facilitate

commission of a felony; the actual commission of or conviction for a felony is not an element

of the crime of kidnapping. The statutory language of the crime is concerned with the state of

mind of the kidnapper. To successfully prosecute the crime of kidnapping under this section,

the Commonwealth must establish [the defendant] kidnapped his victim with the intent to

facilitate the commission of a felony.”).

75 See, e.g., Doc. 1 at 7 (describing “Ground Two” as “trial court erred [sic] and ineffective

assistance of trial counsel/violation 6th and 14th Amendments”); Doc. 2 at 26 (labeling

“Ground Two” as “Violation of 6th Amendment Right to Receive Effective Assistance of

Counsel and the Trial Court Error(s)” and including all claims—except the sufficiency of the

claims in his first PCRA appeal.76 The Superior Court, however, determined that

Sawyer had waived two of the claims directly “assailing the jury instructions”

because he had failed to raise them on direct appeal.77 Thus, it is critical to

determine exactly what type of claims Sawyer is asserting in the instant petition

and whether he fairly presented them to the state courts (or whether he

procedurally defaulted them).

Sawyer’s memorandum of law in support of his skeletal initial petition is

difficult to follow. For example, Sawyer first provides three “questions” for

review,78 then what appears to be seven interrelated habeas claims,79 then

“analysis” on two grounds for relief.80 Sawyer repeatedly conflates claims of

ineffective assistance of counsel (which generally are cognizable in federal habeas

proceedings) with claims of trial court error (which generally are not). As best the

Court can ascertain, Sawyer’s claims under Ground Two are as follows:

1. Ineffective assistance of trial counsel “for failing to request jury

instruction and/or clarification concerning the age of consent during trial

when the strategy defending the case was that of consent.”81

2. Ineffective assistance of trial counsel for failing to object to questioning

indicating that Sawyer “would be guilty of multiple crimes unless he

could show by a preponderance of the evidence that he reasonably

thought that B.B. was over 18” and by failing to object to jury

76 See Sawyer, No. 433 MDA 2018, 2018 WL 4998304, at *2-3 (citing page 3 of Sawyer’s brief

on appeal).

77 See id., at *3.

78 See Doc. 2 at 2-3.

79 See id. at 3-24.

80 See id. at 25-28.

instructions which “were incorrect on the law and allowed [Sawyer] to be

convicted for legal conduct.”82

3. Ineffective assistance of trial counsel for failing to object “to the

erroneous jury instructions which made the threshold for conviction

easier.”83

4. Trial court error by “factually finding that the instructions given to the

jury were the standard jury instructions.”84

5. Cumulative prejudice from trial counsel’s ineffectiveness “in permitting

testimony concerning the incorrect age of consent during trial and failing

to object to incorrect jury instructions.”85

6. Trial court error in failing “to provide the correct legal analysis and

standard concerning its jury instructions in its [Rule] 1925[(a)]

Opinion.”86

The Court starts with the claims under Ground Two that are clearly

unreviewable. Sawyer’s fourth claim (that the trial court erred in finding that the

instructions given to the jury were the standard jury instructions) and his sixth

claim (that the trial court erred in its Rule 1925(a) opinion) are not cognizable on

federal habeas review. Neither claim implicates a federal issue, and this Court

does not review state-court determinations on questions of state law.87 To the

extent that Sawyer is challenging trial counsel’s performance with respect to the

82 Id. at 8.

83 Id. at 12.

84 Id. at 16.

85 Id. at 17.

86 Id. at 18.

87 See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law

that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.”);

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

jury instructions given, such an argument is already asserted in other claims under

the umbrella of Ground Two.

The Court next turns to Sawyer’s claims of ineffective assistance of counsel.

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

familiar two-pronged test set forth in Strickland v. Washington.88 To prevail on

such a claim, a criminal 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.89 The

defendant bears the burden of proving both prongs.90

In determining whether counsel has satisfied the objective standard of

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

counsel’s conduct.91 There is a strong presumption that counsel’s performance

falls within the wide range of reasonable professional assistance.92 Only a “rare

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

standard to be applied in scrutinizing counsel’s performance.”93 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.94 The

88 466 U.S. 668 (1984).

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

90 See id. at 687.

91 Id. at 689.

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

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

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.95

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.”96 Under this “doubly” deferential

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

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

merit precludes federal habeas relief.97

Sawyer asserts three claims of ineffective assistance of trial counsel as well

as a related cumulative prejudice claim. However, his second and third

ineffectiveness claims implicate the same legal issue concerning the propriety of

the jury instructions concerning the defense of mistake of age. Thus, the gravamen

of Sawyer’s Sixth Amendment claims appears to be that (1) trial counsel failed to

correct the issues surrounding the age of consent in Pennsylvania (both during trial

and when instructions were given) and (2) trial counsel failed to object to the jury

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

96 Richter, 562 U.S. at 101 (emphasis added); Collins v. Sec’y of Pa. Dep’t of Corr., 742 F.3d

528, 546-47 (3d Cir. 2014).

instructions regarding the defense of mistake of age. Sawyer expends a great deal

of energy making convoluted and circulatory arguments in his memorandum

(many of which attack the jury instructions themselves rather than trial counsel’s

performance), but ultimately he only identifies the two foregoing attorney errors.

Both of these Sixth Amendment claims appear to have been exhausted in

state court.98 The PCRA court and the Superior Court analyzed only the prejudice

prong of the Strickland analysis, finding that, even if Sawyer’s attorney’s conduct

had fallen below a constitutionally permissible standard, Sawyer had failed to

establish a reasonable probability that, but for counsel’s deficient performance, the

outcome of the trial would have been different.99 The Superior Court recounted

trial testimony from B.B. that Sawyer had tried to coerce her into having sex with

him, and that both B.B. and the officer who discovered B.B. in the car testified that

she was “crying, very upset, and scared.”100 The panel reasoned, “There was no

testimony that B.B. was engaging in consensual sex; thus it strains credulity that

the jury could have concluded her encounter with [Sawyer] was consensual.”101

While the Superior Court’s analysis is somewhat abbreviated, it cannot be

said that its determination on these Sixth Amendment claims was unreasonable.

Sawyer was convicted of kidnapping to facilitate a felony, unlawful contact with a

98 See, e.g., Sawyer, No. 433 MDA 2018, 2018 WL 4998304, at *2.

99 See id., at *5-6.

100 Id., at *5.

minor – open lewdness,102 and false identification to a police officer. He disputes

only the first two convictions. Furthermore, his challenge to the kidnapping

offense appears to rely solely on his argument that, without an underlying felony

for unlawful contact with a minor (i.e., that the contact was not unlawful because it

was consensual) or attempted indecent assault (for which he was acquitted), there

would be no predicate intention “[t]o facilitate the commission of any felony” as is

required to establish the kidnapping offense for which he was convicted.103

The Court first observes that, as Sawyer correctly asserts, the age of consent

in Pennsylvania is 16,104 and it is undisputed that B.B. was 16 at the time of the

incident. Sawyer maintains that, because his attorney’s theory of defense was

consensual contact between B.B. and Sawyer, counsel’s failure to correct

inaccurate statements during trial about the age of consent prejudiced him and

resulted in convictions for kidnapping and unlawful contact. He further argues that

he was unduly prejudiced by his attorney’s failure to object to the jury instructions

on mistake of age, which Sawyer claims were irrelevant to the charges at issue and

caused the jury to convict him if they did not believe that he was mistaken about

102 Unlawful contact with a minor – open lewdness is defined as follows: “A person commits an

offense if he is intentionally in contact with a minor . . . for the purpose of engaging in an

activity prohibited under any of the following, and either the person initiating the contact or

the person being contacted is within this Commonwealth: (2) Open lewdness as defined in

section 5901 (relating to open lewdness).” 18 PA. CONS. STAT. § 6318(a)(2). It appears that

this was the only unlawful-contact-with-a-minor offense charged. See Sawyer, No. 1530 MDA

2014, 2015 WL 7288066, at *6 n.4.

103 See 18 PA. CONS. STAT. § 2901(a)(2) (defining the crime of kidnapping to facilitate a felony).

104 See 18 PA. CONS. STAT. § 3122.1 (statutory sexual assault); 18 PA. CONS. STAT. § 3123(a)(7)

B.B.’s age.

Sawyer’s arguments are unpersuasive. Notably, Sawyer was convicted of

unlawful contact with a minor and, under that statute, “minor” means under the age

of 18.105 It is undisputed that B.B. was 16 years old at the time of the incident.

The jury was properly instructed on the age of minority,106 and nowhere in the

charge was there any incorrect instruction about the age of consent.107 Moreover,

the defense of mistake of age was available to Sawyer,108 and jury instructions

were provided concerning that defense. The fact that Sawyer maintains that his

theory of defense was consent—rather than mistake of age—does not necessarily

mean that he was prejudiced (within the meaning of Strickland) by the trial court

providing a mistake-of-age instruction.109

Rather, as the Superior Court correctly explained, Sawyer cannot establish

prejudice because there was no evidence presented that would have indicated B.B.

was engaging in consensual sexual contact with Sawyer.110 Therefore, even

105 See 18 PA. CONS. STAT. § 6318(c) (defining “minor” as an “individual under 18 years of age).

106 See Doc. 2 at 77.

107 See generally id. at 73-79. Any misstatements about the age of consent occurred during the

trial, not during jury instructions. See, e.g., id. at 68 (trial counsel for Sawyer posing a question

during cross-examination stating “as long as she’s legal—legal meaning 18.”).

108 See Commonwealth v. Vazquez, No. 1123 WDA 2021, 2023 WL 2470282, at *1, 20 n.35 (Pa.

Super. Ct. 2023) (nonprecedential) (finding that mistake-of-age defense was available for all

convictions—including unlawful contact with a minor under Section 6318—except for

corruption of a minor); see also Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa. Super. Ct.

2006) (noting that mistake-of-age defense was raised to a charge under Section 6318).

109 It should be noted that trial counsel testified at the PCRA hearing that the theory of defense was

consent but also that B.B. had told Sawyer “she was of age.” See Sawyer, No. 433 MDA 2018,

2018 WL 4998304, at *4.

assuming that counsel’s performance was deficient surrounding the issues of the

age of consent and the mistake-of-age defense, “it strains credulity that the jury

could have concluded [B.B.’s] encounter with [Sawyer] was consensual.”111

In other words, even if there had been no misstatements about the age of

consent being 18 rather than 16, and even if proper jury instructions were provided

on the age of consent in Pennsylvania (rather than on mistake of age), there was

absolutely no evidence adduced at trial that the encounter between B.B. and

Sawyer was consensual. So even if trial counsel had performed precisely as

Sawyer demands in his post-conviction petitions, there is not a reasonable

probability that his theory of consent would have been accepted by the jury and

resulted in an acquittal on the kidnapping and unlawful contact charges. And,

because there is not a reasonable probability that the outcome of the trial would

have been different, the Superior Court’s application of Strickland for these claims

of ineffectiveness was more than reasonable.

Finally, Sawyer raises a cumulative prejudice claim. The Superior Court

summarily rejected this claim by citing Commonwealth v. Elliott for the

proposition that “no number of failed ineffective-assistance-of-counsel claims may

collectively warrant relief if they do not do so individually.”112 However, in

Elliott, the Pennsylvania Supreme Court’s very next sentence explains that “[w]hen

111 Id., at *5-6.

the failure of individual claims is based upon a lack of prejudice, . . . then the

cumulative prejudice from those individual claims may properly be assessed.”113

Federal law similarly provides for a cumulative prejudice or “cumulative error”

claim.114 So the Superior Court should have reached the merits of Sawyer’s

cumulative prejudice claim.

Nevertheless, even if the Superior Court’s application of federal law here

was unreasonable, de novo review of this claim shows that it is meritless.115 As

thoroughly explained above, whatever minor prejudice may have been caused by

the attorney errors alleged, it does not rise to the level of having “had a substantial

and injurious effect or influence in determining the jury’s verdict.”116 Again, this

is primarily because there was no evidence on which the jury could have relied to

believe Sawyer’s theory of consent. To the contrary, all the evidence adduced at

trial established that any contact between B.B. and Sawyer was nonconsensual.

B. Supplemental Section 2254 Petition

Sawyer filed his supplemental Section 2254 petition in September 2022. In

it, he raises four additional habeas claims: (1) another attempt to assert sufficiency

113 Elliott, 80 A.3d at 450 (emphasis supplied).

114 See Collins v. Sec’y of Pa. Dep’t of Corr., 742 F.3d 528, 542-43 (3d Cir. 2014); Albrecht v.

Horn, 485 F.3d 103, 139 (3d Cir. 2007) (citing Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir.

2002)).

115 See Saranchak v. Sec’y, Pa. Dep’t of Corr., 802 F.3d 579, 589 (3d Cir. 2015) (explaining that,

if a state court’s resolution of a claim reflects an unreasonable application of clearly established

federal law, the federal habeas court “review[s] the underlying claim de novo.” (citation

omitted)).

of the evidence; (2) prosecutorial misconduct; (3) a due process challenge to his

sentence under the recidivism statute alleging a violation of Alleyne v. United

States117; and (4) a due process claim regarding lack of a preliminary

arraignment.118 These claims are either procedurally barred, meritless, or both.

1. Ground One: Sufficiency of the Evidence

In his first supplemental ground, Sawyer tries to resurrect his sufficiency of

the evidence claim. However, as fully explained in Section III(A)(1) above,

Sawyer procedurally defaulted this claim and has not established cause or

prejudice to excuse the default. The claim is likewise meritless, as detailed above.

2. Ground Two: Prosecutorial Misconduct

In his second ground for relief, Sawyer claims that the prosecutor committed

misconduct by “submitting falsified documents, introduc[ing] perjured evidence[,]

and allow[ing] for the destruction of exculpatory evidence.”119 This claim,

however, is procedurally defaulted and unreviewable.

Sawyer attempted to raise this claim in his second direct appeal.120 The

Superior Court, however, found that this claim was not cognizable on appeal

following remand for resentencing.121 The panel cited Commonwealth v. Lawson,

which holds that “where a case is remanded to resolve a limited issue, only matters

117 570 U.S. 99 (2013).

118 See generally Doc. 19.

119 Doc. 19 at 8.

120 See Sawyer, No. 1981 MDA 2015, 2016 WL 5340506, at *2.

related to the issue on remand may be appealed.”122 Sawyer, of course, could have

raised this claim during his first direct appeal but did not. Thus, because he never

properly presented this claim to the state courts for a merits determination, it is

procedurally defaulted. Sawyer has not established cause or prejudice to excuse

this default, so this Court cannot consider it.123

3. Ground Three: Illegal Sentence

Sawyer next claims that he was improperly sentenced under the recidivist

statute, 42 PA. CONS. STAT. § 9714. He primarily argues that his sentence violates

Alleyne v. United States124 because no facts were presented to the jury about prior

convictions that implicate a mandatory minimum sentence. The Superior Court

rejected this argument in 2015 during Sawyer’s first direct appeal, and then again

in 2016 when he tried to raise it following resentencing. Sawyer also appears to

claim that his sentence was illegal because he did not have any qualifying prior

convictions for a crime of violence. The Superior Court affirmed dismissal of this

claim as barred by the PCRA’s statute of limitations.125

First, Sawyer’s Alleyne claim is barred by the AEDPA’s statute of

limitations. Under 28 U.S.C. § 2244(d)(1)(A), a petitioner generally has one year

from the date on which a conviction becomes final in which to raise a habeas claim

122 Commonwealth v. Lawson, 789 A.2d 252, 253 (Pa. Super. Ct. 2001) (citing Commonwealth v.

Jackson, 765 A.2d 389 (Pa. Super. Ct. 2000)).

123 See Martinez, 566 U.S. at 9.

124 570 U.S. 99 (2013).

in federal court.126 The one-year clock is tolled for the period “during which a

properly filed application for State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending.”127 Had Sawyer asserted this

claim in his initial Section 2254 petition in 2019, it would have been timely.

However, he did not raise it until September 2022, approximately three years past

the expiration of the statute of limitations. Sawyer provides no basis for equitable

tolling or relation back, and therefore this claim must be dismissed.128

Even if this claim were not barred by the statute of limitations, the state

court’s adjudication of it was correct and thus reasonable. Alleyne holds that any

fact that increases the mandatory minimum sentence is an element of the crime that

must be found beyond a reasonable doubt by the trier of fact.129 However, Alleyne

carves out a specific exception for the “fact” of prior convictions, which are not

required to be found by a jury beyond a reasonable doubt.130 Thus, as the Superior

Court held,131 Sawyer’s sentencing under the recidivism statute—where the court

(rather than a jury) found that Sawyer had one qualifying prior conviction for a

crime of violence—did not violate Alleyne and was not illegal.

126 See 28 U.S.C. § 2244(d)(1)(A).

127 Id. § 2244(d)(2).

128 See Mayle v. Felix, 545 U.S. 644, 650, 662-64 (2005) (holding that habeas claims raised in an

amended Section 2254 petition—if filed beyond the AEDPA’s one-year statute of

limitations—must relate back under Federal Rule of Civil Procedure 15(c) to the original

petition in order to avoid the AEDPA’s time bar).

129 Alleyne, 570 U.S. at 103, 108.

130 See Alleyne, 570 U.S. at 111 n.1 (citing Almendarez-Torres v. United States, 523 U.S. 224

(1998)).

Finally, as to Sawyer’s assertion that none of his prior convictions qualify as

a crime of violence for purposes of Section 9714, that claim is procedurally

defaulted because it was dismissed by the state court as untimely.132 Sawyer

provides no cause or prejudice to excuse the default, so this claim cannot be

reviewed.

4. Ground Four: Lack of Preliminary Arraignment

Sawyer’s fourth and final supplemental claim fails for many of the same

reasons as his third. Sawyer asserts that, because he was never given a preliminary

arraignment on the charges for which he was later convicted, the trial court lacked

subject matter jurisdiction to hear his case.

Sawyer raised this claim during his first direct appeal and it was rejected on

the merits by the Superior Court in 2015.133 Again, had Sawyer pressed this claim

in his initial Section 2254 petition, it would have been timely. But he did not raise

it until September 2022, nearly three years past the expiration of the AEDPA’s

limitations period. Sawyer provides no basis for equitable tolling or relation back,

and therefore this claim must be dismissed as barred by the statute of limitations.134

132 See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (stating that state court’s determination as

to timeliness is the “end of the matter” for purposes of the AEDPA (quotation marks and

citation omitted)); see also Merritt v. Blaine, 326 F.3d 157, 167 (3d Cir. 2003) (federal court

has “responsibility to give deference to the state court’s determination of the timeliness of the

state PCRA petition”).

133 See id., at *2, 3.

Additionally, the state court’s determination on this claim was reasonable.

To the extent that Sawyer is arguing that his Fourteenth Amendment due process

rights were violated by his lack of preliminary arraignment, he is incorrect. As the

state court noted, Sawyer was provided with the constitutionally required

procedural protections at a June 2013 hearing; i.e., “he was given a copy of the

criminal complaint requesting a warrant for his arrest, notice of his right to secure

counsel, notice of his right to waive the presence of counsel, notice of his right to a

preliminary hearing[,] and [notice of] his right to have bail set.”135 Sawyer was

appointed counsel and eventually tried and convicted by a jury of his peers.

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.136 Sawyer undoubtedly received these

procedural protections. Moreover, as noted by the Superior Court, Sawyer did not

establish (and still has not established) how he was prejudiced by the lack of a

preliminary arraignment such that it should result in the extreme measure of

overturning multiple convictions reached by jury verdict.137 Accordingly,

Sawyer’s final supplemental claim does not warrant relief.

135 Sawyer, No. 1530 MDA 2014, 2015 WL 7288066, at *3, 11.

136 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.”).

IV. CONCLUSION

For all the foregoing reasons, the Court must deny Sawyer’s initial and

supplemental petitions for a writ of habeas corpus under 28 U.S.C. § 2254. The

Court will likewise deny a certificate of appealability, as Sawyer has failed to

make a substantial showing of the denial of a constitutional right.138 An

appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge