# HUMMERT v. TICE

> District Court, M.D. Pennsylvania · June 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10413232

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN DAVID HUMMERT, : CIVIL NO. 1:21-CV-00849
:
Petitioner, : (Magistrate Judge Schwab)
:
v. :
:
WARDEN ERIC TICE, et al., :
:
Respondents. :

MEMORANDUM OPINION

I. Introduction.
In 2004, Charlene Hummert’s (“Charlene”) body was found in the back of
her Land Rover. In this habeas corpus case, Brian Hummert (“Hummert”),
Charlene’s husband, is challenging his conviction from the Court of Common
Pleas of York County, Pennsylvania for the murder of Charlene and for hindering
apprehension or prosecution. Hummert claims that his conviction violates the
Double Jeopardy clause because it was obtained after his initial conviction for
Charlene’s murder was overturned. Hummert further claims that he was denied
due process and effective assistance of counsel. And Hummert claims that his
conviction was obtained through prosecutorial misconduct and governmental
interference. Hummert also argues that his conviction was obtained only after
inordinate delay. For the reasons discussed below, we will deny Hummert’s
petition for a writ of habeas corpus.
II. Background and Procedural History.
Hummert is currently serving a life sentence after being convicted of first-

degree murder and hindering apprehension or prosecution. Commonwealth v.
Hummert, No. 1549 MDA 2012, 2013 WL 11253455, at *1 (quoting the trial court
opinion). This matter comes before the court after 19 years of extensive litigation.

See id. We consider this motion after receiving the parties’ consent to Magistrate
Judge jurisdiction pursuant to 28 U.S.C. § 636(c). Doc. 25.
Charlene was killed on March 21, 2004. Commonwealth v. Hummert, 2013
WL 11253455, at *1 (quoting the trial court opinion). Hummert was arrested for

her murder—and other connected offenses1—on November 3, 2004, and arraigned
on January 1, 2005. Id. (quoting the trial court opinion). Though Hummert initially
pleaded guilty to third-degree murder and was sentenced to 240–840 months in

prison, the trial court later found that this guilty plea was a product of ineffective
assistance of counsel and, accordingly, allowed Hummert to withdraw his guilty
plea. Id. (quoting the trial court opinion). Hummert thus proceeded to a jury trial.
Id. (quoting the trial court opinion). This jury convicted Hummert and a judge

sentenced him to life in prison without parole. Id. (quoting the trial court opinion).

1 Hummert was arrested for “Criminal Homicide, Hindering Apprehension
or Prosecution, Obstructing Administration of Law or other Governmental
Function, Tampering with or Fabricating Physical Evidence and False Reports to
Law Enforcement Authorities.” Id. (quoting the trial court opinion).
The Superior Court affirmed this sentence on appeal but, on November 8, 2008,
the PCRA court “granted a New Trial due to the Commonwealth’s failure to make

full and complete disclosures.” Id. (quoting the trial court opinion). The Superior
Court affirmed this decision on appeal. Id. (quoting the trial court opinion).
“The matter was returned to the Lower Court for a new trial.” Id. at *2

(quoting the trial court opinion). Prior to trial, Hummert filed a motion to dismiss
based in part on an argument that proceeding with this trial would violate the
double jeopardy clause. Id. at *2 (quoting the trial court opinion). The court
denied this motion.2 The second jury trial, therefore, proceeded and, on May 22,

2012, Hummert was again found guilty of first degree murder and hindering
apprehension or prosecution. Id. (quoting the trial court opinion). The Superior
Court upheld his conviction on appeal, id., and the Supreme Court denied appeal,

Commonwealth v. Hummert, 625 Pa. 634, 89 A.3d 660 (Pa. 2014).
Hummert, a state prisoner, began this action on March 18, 2021, by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.3 Hummert
brings the petition based on seven grounds: (1) violation of the Fifth Amendment

2 The Court issued an order withdrawing the Obstruction of the
Administration of Law charge during this stage in the litigation. Id. at *2 (quoting
the trial court opinion).

3 Hummert originally filed this petition in the United States District Court of
the Western District of Pennsylvania. See docket. The court granted the
respondent’s motion to transfer venue to this court. Doc. 5, 7.
Double Jeopardy clause as incorporated to the states by the Fourteenth
Amendment; (2) violation of his due process protections “under the [Six]th and

[Fourteen]th Amendments of the U.S. Constitution”; (3) “prosecutorial misconduct
and fraud upon the court”; (4) ineffective assistance of counsel; (5) inordinate
delay; (6) governmental interference; and (7) cumulative ineffective assistance of

counsel. Doc. 1 at 5–16. Hummert fails to identify the remedy he seeks in his
petition, but he simultaneously filed a brief in support of his petition and, in this
document, he requests that “this case be remanded back for a new trial due to the
egregious amount of ineffective assistance of counsel Petitioner cumulatively

received.” Doc. 2 at 37. But Hummert further argues that “Double Jeopardy
should attach” such that a second trial would not be proper and he should, instead,
be released. Id.

The respondent argues that this Court should dismiss Hummert’s petition
because a majority of the claims were procedurally defaulted and the remaining
claims must fail on the merits. Doc. 27. Hummert filed a reply which he titles
“objections and traverse” in which he objects to, among other things, (1) the

respondent using the term “defendant” for Hummert rather than petitioner; (2) the
reproduced record which he characterizes as “incomplete” and “biased”; (3) the
respondent’s statement of the case because it presented as fact allegations that were

not, according to Hummert, established by the evidence; and (4) the respondent’s
characterizations of his claims as waived or not exhausted. Doc. 32 at 1–6. He
further argues that each of his claims, aside from his double jeopardy claim, “have

IAC [Ineffective Assistance of Counsel] issues[,]” and that finding at this juncture
that his claims are procedurally defaulted would be to make his right to effective
assistance of counsel “for not [sic.].” Id. at 7. Hummert specifically argues that

any failure to exhaust his claims should be excused, as he was represented by
counsel during the PCRA process and “was told repeatedly by counsel, that they
had final say with what was to be raised and how it was going to be raised[,]” and
that counsel “could not nor [sic.] would not raise U.S. Constitutional violation

issues in state court.” Id. at 7. Upon review of the record and the parties’ filings,
we ordered the respondent to submit a supplement to the record. Doc. 36. The
respondents complied. Doc. 37. This matter is now ripe for our review.

III. Discussion.
“The essence of habeas corpus is an attack by a person in custody upon the
legality of that custody, and . . . the traditional function of the writ is to secure

release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
When a prisoner “is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to

immediate release or a speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.” Id. at 500. Where Hummert presented the
claims at issue here to the state courts, and the state courts addressed those claims

on the merits, we review the claims under the deferential standard of 28 U.S.C. §
2254(d). We begin by dismissing claims that are moot. We then turn to
addressing the claims that the respondents claim have been procedurally defaulted.

We finally turn to a discussion of the merits of the claims that we find have not
been procedurally defaulted.

A. All claims based on alleged errors prior to the second trial are moot.

Hummert’s habeas corpus petition contains seven grounds for relief. Within
many of these grounds, however, Hummert identifies multiple claims. Some of
these claims are based on alleged errors in his first trial or, even earlier, in his

initial guilty plea. Hummert alleges that the withholding of letters from a
“purported informant” and of the coroner’s report violated his due process rights,
citing the Sixth and Fourteenth Amendments. Doc. 1 at 7. Hummert states that the
informant letters were withheld “at [his] first trial” and the coroner’s report was

withheld “from both trials[’] discovery.” Id. Hummert also claims his due process
rights were violated when the Commonwealth coerced him to plead guilty to third
degree murder. Id. Hummert similarly alleges that he was subjected to

prosecutorial misconduct and “fraud on the court” when the prosecutor withheld
exculpatory evidence from discovery, including the aforementioned informant
letters during the first trial and the coroner’s report during both trials. Id. at 8.

Further, according to Hummert, he also received ineffective assistance of counsel
at both trials when his trial attorneys failed to obtain the coroner’s report (id. at
10), and when his attorneys failed to object—or, when they did object, failed to do

so properly—to the Commonwealth’s misrepresentations to the court during both
of Hummert’s trials, as well as each of his direct appeals, and his first PCRA (id. at
11). The respondents argue that these claims are moot. Doc. 27 at 19, 20, 21, 24.
Insofar as these claims are based on proceedings other than Hummert’s second

trial, we will dismiss them, as discussed below.
The Superior Court, upon review of the PCRA petition, found similar claims
moot, explaining:

Preliminarily, we note that whatever claims Appellant may
have concerning his first trial and earlier PCRA petition are
moot, because, when he was granted a new trial, the proverbial
slate was wiped clean. See Commonwealth v. Oakes, 392 A.2d
1324, 1326 (Pa. 1978) (‘grant of a new trial wipes the slate
clean of the former trial”); Commonwealth v. A.G., 955 A.2d
1022, 1024 (Pa. Super. 2008) (same).
Doc. 27-1 at 1558. We agree with the Superior Court on this matter and find that
claims based on Hummert’s guilty plea or first trial are moot, as it is the second
trial that led to the conviction at question here. See McDaniels v. Winstead, Civil
Action No. 11-5679, 2012 WL 10997816, at *12, n.12 (E.D. Pa. Oct. 12, 2012),
report and recommendation adopted in part and denied in part, (“Initially, I note
that Ms. McDaniels’ complaints about counsel’s performance during her first trial

are moot. It is the second trial that led to her conviction and judgment of
sentence.”). Accordingly, we will dismiss Hummert’s claims of error in his first
trial and guilty plea. Where Hummert’s claims reference “both trials,” going

forward we will only consider the errors alleged to have occurred during the
second trial.

B. Exhaustion and Procedural Default.

“Federal habeas courts reviewing the constitutionality of a state prisoner’s
conviction and sentence are guided by rules designed to ensure that state-court
judgments are accorded the finality and respect necessary to preserve the integrity

of legal proceedings within our system of federalism.” Martinez v. Ryan, 566 U.S.
1, 9 (2012). One of these rules is that a state prisoner must exhaust available state
remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. §
2254(b) and (c). The exhaustion requirement serves the interests of comity

between the federal and state systems by allowing the state an initial opportunity to
determine and correct any violations of a prisoner’s federal rights. O’Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999) (“Comity . . . dictates that when a prisoner

alleges that his continued confinement for a state court conviction violates federal
law, the state courts should have the first opportunity to review this claim and
provide any necessary relief.”). “The exhaustion rule also serves the secondary

purpose of facilitating the creation of a complete factual record to aid the federal
courts in their review.” Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A
habeas corpus petitioner bears the burden of demonstrating that he has exhausted

state remedies. O’Halloran v. Ryan, 835 F.3d 506, 508 (3d Cir. 1987). The
petitioner “must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process.” O’Sullivan, 526 U.S. at 845.4

“[O]rdinarily a state prisoner does not ‘fairly present’ a claim to a state court
if that court must read beyond a petition or a brief (or a similar document) that
does not alert it to the presence of a federal claim in order to find material, such as

a lower court opinion in the case, that does so.” Baldwin v. Reese, 541 U.S. 27, 32
(2004). “A litigant wishing to raise a federal issue can easily indicate the federal
law basis for his claim in a state-court petition or brief, for example, by citing in
conjunction with the claim the federal source of law on which he relies or a case

4 In Pennsylvania, pursuant to Order 218 of the Pennsylvania Supreme
Court, review of criminal convictions and post-conviction relief matters from the
Pennsylvania Supreme Court is discretionary and “unavailable” for purposes of
exhausting state court remedies under § 2254. Lambert v. Blackwell, 387 F.3d 210,
233 (3d Cir. 2004). Thus, to exhaust state remedies, a Pennsylvania prisoner need
appeal only to the Pennsylvania Superior Court.
deciding such a claim on federal grounds, or by simply labeling the claim
‘federal.’” Id. Although to meet the fair-presentation requirement, a petitioner

need not cite ‘“book and verse”’ the federal constitution, “the substance of a
federal habeas corpus claim must first be presented to the state courts.” Picard, 404
U.S. at 278. “A petitioner can ‘fairly present’ his claim through: (a) reliance on

pertinent federal cases; (b) reliance on state cases employing constitutional
analysis in like fact situations; (c) assertion of the claim in terms so particular as to
call to mind a specific right protected by the Constitution; and (d) allegation of a
pattern of facts that is well within the mainstream of constitutional litigation.”

Nara v. Frank, 488 F.3d 187, 198 (3d Cir. 2007).
“If a claim has not been fairly presented to the state courts but state law
clearly forecloses review, exhaustion is excused.” Carpenter v. Vaughn, 296 F.3d

138, 146 (3d Cir. 2002) (citations omitted); see also McCandless v. Vaughn, 172
F.3d 255, 260 (3d Cir. 1999) (“When a claim is not exhausted because it has not
been ‘fairly presented’ to the state courts, but state procedural rules bar the
applicant from seeking further relief in state courts, the exhaustion requirement is

satisfied because there is ‘an absence of available State corrective process.’”).
Such a claim is procedurally defaulted, rather than unexhausted. McCandless, 172
F.3d at 260. A procedural default occurs when a prisoner’s claim is barred from

consideration in the state courts by an “independent and adequate” state procedural
rule. Martinez, 566 U.S. at 10. A procedural default generally bars a federal court
from reviewing the merits of a habeas claim that the prisoner procedurally

defaulted in state court. Munchinski v. Wilson, 694 F.3d 308, 332 (3d Cir. 2012).
“Grounded in principles of comity and federalism, the procedural default doctrine
prevents a federal court sitting in habeas from reviewing a state court decision that

rests on a state law ground ‘that is sufficient to support the judgment,’ when that
state law ground ‘is independent of the federal question and adequate to support
the judgment.’” Id. at 332–33 (quoting Coleman v. Thompson, 501 U.S. 722, 729
(1991)). “In such situations, ‘resolution of any independent federal ground for the

decision could not affect the judgment and would therefore be advisory.’” Id. at
333.
In the case at hand, Hummert raised the following claims on direct appeal:

(1) sufficiency of the evidence; (2) the denial of his challenge of a juror for cause;
(3) the admission of “a photograph purporting to be the hand of the victim”; (4) the
denial of his motion for a mistrial after the Assistant District Attorney’s closing
argument; and (5) the trial court’s refusal to read three of his requested points for

charge. Doc. 27-1 at 1475–76. And in his PCRA petition and following appeals,
Hummert raised the issue of ineffective assistance of counsel based on seven
grounds: (1) failing to allege that the prosecutor fabricated facts in a filing to the

court; (2) “[f]ailing to request a jury instruction that life means life”; (3) “[f]ailing
to appeal an undecided suppression issue”; (4) “[f]ailing to challenge discrepancies
in [a detective’s] testimony”; (5) “[f]ailing to challenge the inconsistent testimony

of [a] Commonwealth witness”; (6) “[f]ailing to object [to] the chain of custody in
that [Hummert] never consented to stipulating to the chain of custody”; and
(7) “[f]ailing to pursue an alibi based upon the time of death which was in the

complete coroner’s report which was not provided to the defense prior to trial[.]”
Id. at 1557–58. Hummert, therefore, exhausted the above issues. The question
remains, then, which claims Hummert raises in the instant habeas corpus petition
and if they are fairly characterized as having been raised before the state court.

1. The claims that were raised in neither the direct appeal nor
the PCRA processes are procedurally defaulted and no
exception applies.
Hummert claims that the Commonwealth fabricated evidence and suborned
perjury, thereby violating his due process protections, citing the Sixth and
Fourteenth Amendments. Doc. 1 at 7. Hummert also claims that by suborning
perjury and fabricating evidence, the Commonwealth committed prosecutorial
misconduct and fraud upon the court. Id. at 8. Hummert further claims that “the

inactions of appointed coun[s]el, the Commonwealth[,] and the Courts delayed
petitioners case [and] the delay was inordinate in nature.” Id. at 13. Hummert also
claims that his conviction was the product of governmental interference because,
among other things, “[t]he Commonwealth has modified it’s theory of the crime
since Petitioner was able to present on the record a copy of the Coroner’s

Report[.]” Id. at 14. And Hummert brings a claim for cumulative ineffective
assistance of counsel, based on “individual actions [which] may not have risen to
the level of ineffective assistance of counsel by themselves, but add[ed] together,

the cumulative nature should rise to the level of proof needed for ineffective
assistance of counsel.” Id. at 16. Finally, according to Hummert, he also received
ineffective assistance of counsel because his counsel failed to obtain the coroner’s
report,5 “failed to challenge [the] validity of [the] UPC seals[,]” “failed to

5 Hummert claims:
I inquired of both trial counsel prior to [the first and second]
trials, as to any reports from the coroner’s office. I was told by
both counsels that they had checked discovery [and] no report
was present and they inquired with [the district attorney] and
were informed “no such report existed.” With this report it
brings up issues as to time of death thus alibi defenses,
composition of [illegible] thus chain of custody, [time of death]
also could be used to challenge video.
Doc. 1 at 10. We construe this claim as alleging that his counsel’s failure to obtain
the coroner’s report from the Commonwealth constituted ineffective assistance of
counsel causing Hummert to be unable to raise certain defenses. In Hummert’s
own words: “[I]f counsel would have obtained the coroner’s report from the York
County Coroner’s Office, . . . counsel would have been able to raise reasonable
doubt[.]” Doc. 2 at 16. Hummert thus briefed the issue only of failure to obtain the
coroner’s report and brought up alibi defenses as an explanation of the significance
of such failure. Such a claim, as discussed below, is not exhausted.
The respondents briefed this issue on the merits due to the petitioner’s
previous claims in state court regarding alibi defenses. See doc. 27 at 27. An
ineffective-assistance-of-counsel claim for failure to raise an alibi defense was
exhausted, and the Superior Court found that such a claim failed, reasoning “[e]ven
challenge [the] validity of ‘stalking’ pictures,” and failed to raise the issue of the
Commonwealth misrepresenting, mischaracterizing, misquoting, and misciting

evidence. Id. at 10.
Each of these issues were not presented to the state court and can no longer
be presented to the state court, because the time to file a PCRA petition has passed

and no exception to that time period is present. See Pa. C.S. § 9545 (“[a]ny petition
under this subchapter, including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final”). These claims are,
therefore, procedurally defaulted.

There are, however, exceptions to the bar on consideration of procedurally
defaulted claims, Martinez, 132 S.Ct. at 1316, which requires us to further consider
Hummert’s claims of fabrication of evidence and subornation of perjury. A federal

court may consider the merits of a procedurally defaulted habeas claim in two
situations: (1) the petitioner establishes cause for the default and actual prejudice

if the jury found [the proposed alibi] wholly credible, then [Hummert] still could
have had time to kill the victim at 7:00 a.m., to leave for work by 7:15 a.m., and to
arrive at work by 7:45 a.m.” Doc. 27-1 at 1566. And Hummert thus “failed to
establish that there was a reasonable probability of a different outcome had second
trial counsel ‘pursue[d]’ this ‘alibi.’” Id. While we note that we see no apparent
flaw in the state court’s reasoning, we do not reach this question because Hummert
did not raise the issue of failure to raise alibi offenses but instead failure to obtain
the coroner’s report, noting that such a report may have aided alibi defenses in
turn. This is a critical difference and we cannot say that Hummert “fairly
presented” such a claim to the state court.
because of the alleged violation of federal law; or (2) the petitioner demonstrates
that failure to consider the claim will result in a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750. “To show cause and prejudice, ‘a petitioner must
demonstrate some objective factor external to the defense that prevented
compliance with the state’s procedural requirements.’” Cristin v. Brennan, 281

F.3d 404, 412 (3d Cir. 2002) (quoting Coleman, 501 U.S. at 753). “To show a
fundamental miscarriage of justice, a petitioner must demonstrate that he is
actually innocent of the crime by presenting new evidence of innocence.” Keller v.
Larkins, 251 F.3d 408, 415–16 (3d Cir. 2001) (citation omitted).

Here, Hummert does not present new evidence of innocence. Hummert’s
procedural default, therefore, will only be excused if he establishes cause and
prejudice. Hummert explains his reasons for procedural default as a choice by

counsel not to argue certain issues. See doc. 1 at 7 (“counsel did not want to argue
some of the above points or stated they could not be reargued since I received
relief in form of [a] new trial after [the first] trial”), 9 (“counsel stated they could
not or would not raise some of these issues”), 10 (“counsel refused or if they did

bring up [a] challenge did so in a nonzealous [sic.] manner”), 15 (“counsel refused
to bring up issue in appeals to PCRA”). Hummert also explains that his claims for
inordinate delay and governmental interference occurred during the post-
conviction proceedings, though he does not explain why he did not bring the
claims to the state court through appeal or other mechanisms. See id. at 13, 14.

To establish “cause” for a procedural default, a petitioner must “show that
some objective factor external to the defense impeded counsel’s efforts to comply
with the State’s procedural rule.” Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir.

2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Mere “[a]ttorney
ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner’s
agent when acting, or failing to act, in furtherance of the litigation, and the
petitioner must ‘bear the risk of attorney error.’” Coleman v. Thompson, 501 U.S.

722, 753 (1991) (quoting Murray, 477 U.S. at 488). Attorney error that rises to the
level of a Sixth Amendment violation, however, does constitute cause. Id. at 753–
54. “Where a petitioner defaults a claim as a result of the denial of the right to

effective assistance of counsel, the State, which is responsible for the denial as a
constitutional matter, must bear the cost of any resulting default and the harm to
state interests that federal habeas review entails.” Id. at 754. Thus, because there is
a constitutional right to effective assistance of counsel on direct appeal, “an

attorney’s errors during an appeal on direct review may provide cause to excuse a
procedure default; for if the attorney appointed by the State to pursue the direct
appeal is ineffective, the prisoner has been denied fair process and the opportunity
to comply with the State’s procedures and obtain an adjudication on the merits of
his claims.” Martinez v. Ryan, 566 U.S. 1, 11 (2012).

Hummert neither specifies which attorneys failed to raise certain issues nor
at what stage—direct appeal or PCRA—he sought to raise these issues. Even if he
is alleging that his appellate counsel refused to raise the issues, his allegations do

not rise to the level of ineffective assistance of counsel. Accordingly, we will
dismiss the following claims: (1) Hummert’s claims that the Commonwealth
violated his due process protections and rights to be protected from prosecutorial
misconduct and fraud upon the court based on the Commonwealth allegedly

suborning perjury and fabricating evidence (doc. 1 at 7, 8); (2) Hummert’s claim of
inordinate delay (id. at 13); (3) Hummert’s claim of governmental interference
based on the Commonwealth “modif[ying] it’s theory of the crime” (id. at 16); and

(4) Hummert’s claim of cumulative ineffective assistance of counsel (id. at 14).
The United States Supreme Court has, however, created a narrow exception
to the rule set forth in Coleman that an attorney’s errors in post-conviction
collateral proceedings do not constitute cause to excuse a procedural default.

Martinez, 132 S.Ct. at 1315. The Court in Martinez held that a prisoner may
establish cause for the procedural default of an ineffective-assistance-of-trial-
counsel claim by demonstrating the ineffective assistance of his or her counsel in

“initial-review collateral proceedings,” which the Court defined as collateral
proceedings that “provide the first occasion to raise a claim of ineffective
assistance at trial.” Id. The Court declined to hold, however, that there is a

constitutional right to counsel in initial-review collateral proceedings. Id. The
Court stressed that the rule of Coleman continues to apply “except as to initial-
review collateral proceedings for claims of ineffective assistance of counsel at

trial.” Id. at 1319.
In light of Martinez, we again consider Hummert’s procedurally defaulted
ineffective assistance of counsel claims. Hummert explains his procedural default
of these claims by stating “counsel refused or if they did bring up [a] challenge did

so in a nonzealous manner.” Doc. 1 at 10. Again, these allegations do not rise to
the level of ineffective assistance of counsel, which requires a petitioner to
establish that the representation “fell below an objective standard of

reasonableness’ and that he was prejudiced by this failure to meet the
reasonableness standard. See Strickland, 466 U.S. at 687. Accordingly, we dismiss
Hummert’s ineffective assistance of counsel claims based on failure to “challenge
[the] validity of” the UPC seals and the “‘stalking’ pictures” and failing to raise the

issue of the Commonwealth mischaracterizing the evidence. Doc. 1 at 10.
2. The claims that were raised only in the context of another
claim are procedurally defaulted and, again, no exception
applies.
As summarized above, Hummert’s PCRA petition was based on several
instances of alleged ineffective assistance of counsel. See doc. 27-1 at 1526.
Relevantly, Hummert alleged that his counsel was ineffective for “[f]ailing to
object [to] the chain of custody in that [Hummert] never consented to stipulating to

the chain of custody” and “[f]ailing to pursue an alibi based upon the time of death
which was in the complete coroner’s report which was not provided to the defense
prior to trial[.]” Id. In the present habeas corpus petition, Hummert claims that the
government withheld the coroner’s report from his counsel and used a faulty chain

of custody of evidence from the first trial in the second trial. Doc. 1 at 7, 8, 14.
Hummert alleges that these actions are examples of prosecutorial misconduct and
fraud upon the court, and violated his right to due process and his right to be free

from governmental interference. Id. The respondents argue, without citing cases,
that these claims have not been exhausted, and are therefore procedurally
defaulted, because “[w]hile [Hummert] did raise issues related to chain of custody
and production of the coroner’s report on collateral review, he did so only in the

context of his ineffective assistance of counsel claim and not as independent
claims.” Doc. 27 at 19–20.
To be exhausted, a “federal habeas claim must have been ‘fairly presented’
to the state courts, i.e., it must be the substantial equivalent of that presented to the

state courts.” Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing Evans
v. Court of Common Pleas, Delaware County, Pennsylvania, 959 F.2d 1227, 1230
(3d Cir. 1992)). “In addition, the state court must have available to it the same

method of legal analysis as that to be employed in federal court.” Id. (citing Evans,
959 F.2d at 1230). “Petitioners who have not fairly presented their claims to the
highest court have failed to exhaust those claims.” Lines v. Larkins, 208 F.3d 153,
159 (3d Cir. 2000). And such claims will be procedurally defaulted when, as here,

the time to file a state petition has passed and no exception to that time period is
present. See Pa. C.S. § 9545.
The claims that Hummert presented to the PCRA court are similar to his

claims for prosecutorial misconduct, fraud against the court, governmental
interference, and violations of due process, but with critical differences. Each of
the claims are based on the absence of the coroner’s report during the second trial
or a challenge to the chain of custody of evidence. But in the PCRA claims,

Hummert alleged that his counsel was ineffective for not obtaining the coroner’s
report or objecting to the chain of custody of evidence. Doc. 27-1 at 1526. Here,
however, Hummert brings fundamentally different claims that require a different
analysis and the application of different legal standards. See Lambert, 134 F.3d
506, 513 (3d Cir. 1997) (citing Evans, 959 F.2d at 1230).

There are factual and legal differences. Hummert’s habeas claims allege
that the Commonwealth withheld the coroner’s report and used the chain of
custody of evidence at issue, whereas his PCRA claims alleged that his counsel

was ineffective for not using the time of death from the coroner’s report for an alibi
defense and not objecting to the chain of custody of evidence. Compare doc. 1 at 7,
8, 14 with doc. 27-1 at 1526. Further, Hummert’s habeas claims evokes the
questions of whether his due process rights were violated and whether his

conviction was a product of prosecutorial misconduct, fraud upon the court, or
governmental interference, while his PCRA petition only asked the state court to
find that he was provided ineffective assistance of counsel. Compare doc. 1 at 7, 8,

14 with doc. 27-1 at 1526. Accordingly, these claims were not presented to the
state court and, because they can no longer be presented, see Pa. C.S. § 9545, these
claims are procedurally defaulted.
We will, therefore, dismiss as procedurally defaulted Hummert’s due

process, prosecutorial misconduct, fraud upon the court, and governmental
interference claims based upon allegations of withholding the coroner’s report and
using a disputed chain of custody of evidence.
C. Addressing Habeas Claims on the Merits.
Hummert did present the remaining claims to the state courts, and the state

courts addressed those claims on their merits. Thus, we review the clams under the
deferential standard of 28 U.S.C. § 2254(d). We begin by setting forth the
standards for addressing habeas claims on the merits. Then we turn to discuss

Hummert’s double jeopardy claim followed by a discussion of each of the
remaining ineffective-assistance-of-counsel claims. We conclude that Hummert is
not entitled to habeas relief.

1. The Standard for Addressing Habeas Claims on the Merits.
“The federal habeas statute, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes important limitations on the power

of federal courts to overturn the judgments of state courts in criminal cases.” Shoop
v. Hill, 139 S. Ct. 504, 506 (2019). In addition to overcoming procedural hurdles,
a state prisoner must meet exacting substantive standards to obtain habeas corpus
relief. A federal court may not grant habeas corpus relief with respect to any claim

that was adjudicated on the merits in state court unless the state court’s
adjudication
(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(d).
The standard under Section 2254(d) is highly deferential and difficult to
meet. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). It “reflects the view that
habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice

systems,’ not a substitute for ordinary error correction through appeal.” Harrington
v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307,
332 n.5 (1979) (Stevens, J., concurring)). State courts are presumed to know and
follow the law, Woods v. Donald, 575 U.S. 312, 316 (2015), and § 2254(d)

“‘demands that state-court decisions be given the benefit of the doubt[,]’”
Pinholster, 563 U.S. at 181 (quoting Woodford v. Visciotti, 537 U.S. 19, 24
(2002)).

Under § 2254(d)(1), only the holdings, not the dicta, of the Supreme Court
constitute “clearly established Federal law.” Howes v. Fields, 565 U.S. 499, 505
(2012). “Furthermore, in determining what is ‘clearly established,’ Supreme Court
decisions cannot be viewed ‘at a broad level of generality,’ but instead must be

viewed on a ‘case-specific level.’” Rosen v. Superintendent Mahanoy SCI, 972
F.3d 245, 253 (3d Cir. 2020) (quoting Fischetti v. Johnson, 384 F.3d 140, 148 (3d
Cir. 2004)). Thus, “[t]he ‘clearly established Federal law’ provision requires
Supreme Court decisions to be viewed through a ‘sharply focused lens.’” Id.
(quoting Fischetti, 384 F.3d at 149).

Under the “contrary to” clause of § 2254(d)(1), “a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 412 (2000). In other words, “a state court
decision is ‘contrary to’ clearly established law where ‘the Supreme Court has
established a rule that determines the outcome of the petition.’” Rosen, 972 F.3d at

252 (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir.
1999) (en banc)). Thus, ‘“[i]t is not sufficient for the petitioner to show merely
that his interpretation of Supreme Court precedent is more plausible than the state

court’s; rather, the petitioner must demonstrate that Supreme Court precedent
requires the contrary outcome.” Id. (quoting Matteo, 171 F.3d at 888 (italics in
original)).
Under the “unreasonable application” clause of § 2254(d)(1), “a federal

habeas court may grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. Because

federal habeas relief may be granted only if the “state court’s application of clearly
established federal law was objectively unreasonable[,] an incorrect application of
federal law alone does not warrant relief.” Keller v. Larkins, 251 F.3d 408, 418 (3d

Cir. 2001). “The term ‘unreasonable’ refers not to ‘ordinary error’ or even to
circumstances where the petitioner offers ‘a strong case for relief,’ but rather to
‘extreme malfunctions in the state criminal justice syste[m].’” Mays v. Hines, 141

S. Ct. 1145, 1149 (2021) (quoting Harrington, 562 U.S. at 102).
Under the “unreasonable application” clause of § 2254(d)(1), “if the state-
court decision was reasonable, it cannot be disturbed.” Hardy v. Cross, 565 U.S.
65, 72 (2011). “A state court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington, 562 U.S. at 101 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “In other words, a federal

court may intrude on a State’s ‘sovereign power to punish offenders’ only when a
decision ‘was so lacking in justification . . . beyond any possibility for fairminded
disagreement.’” Mays, 141 S. Ct. at 1149 (quoting Harrington, 562 U.S. at 103).
“When assessing whether a state court’s application of federal law is

unreasonable, ‘the range of reasonable judgment can depend in part on the nature
of the relevant rule’ that the state court must apply.” Renico v. Lett, 559 U.S. 766,
776 (2010) (quoting Yarborough, 541 U.S. at 664). “Because AEDPA authorizes

federal courts to grant relief only when state courts act unreasonably, it follows
that ‘[t]he more general the rule’ at issue—and thus the greater the potential for
reasoned disagreement among fair-minded judges—‘the more leeway [state] courts

have in reaching outcomes in case-by-case determinations.’” Id. (emphasis in
original).
Under the “unreasonable determination of the facts” provision of

§ 2254(d)(2), the test “is whether the petitioner has demonstrated by ‘clear and
convincing evidence,’ § 2254(e)(1), that the state court’s determination of the facts
was unreasonable in light of the record.” Roundtree v. Balicki, 640 F.3d 530, 537–
38 (3d Cir. 2011). “[T]he evidence against which a federal court measures the

reasonableness of the state court’s factual findings is the record evidence at the
time of the state court’s adjudication.” Id. at 538.
“In considering a § 2254 petition, we review the ‘last reasoned decision’ of

the state courts on the petitioner’s claims.” Simmons v. Beard, 590 F.3d 223, 231–
32 (3d Cir. 2009) (citing Bond v. Beard, 539 F.3d 256, 289–90 (3d Cir. 2008)).
Thus, “[w]e review the appellate court decision, not the trial court decision, as long
as the appellate court ‘issued a judgment, with explanation, binding on the parties

before it.’” Burnside v. Wenerowicz, 525 F. App’x 135, 138 (3d Cir. 2013). But
when the highest state court that considered the claim does not issue a reasoned
opinion, we look through that decision to the last reasoned opinion of the state

courts. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). And we “presume that the
unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct.
1188, 1192 (2018). “But the State may rebut the presumption by showing that the

unexplained affirmance relied or most likely did rely on different grounds than the
lower state court’s decision, such as alternative grounds for affirmance that were
briefed or argued to the state supreme court or obvious in the record it reviewed.”

Id.
“AEDPA also restricts the ability of a federal habeas court to develop and
consider new evidence.” Shoop v. Twyford, 142 S. Ct. 2037, 2043 (2022).
“Review of factual determinations under § 2254(d)(2) is expressly limited to ‘the

evidence presented in the State court proceeding.’” Id. “[R]eview under
§ 2254(d)(1) is [also] limited to the record that was before the state court that
adjudicated the claim on the merits.” Pinholster, 563 U. S. at 181. Only in certain,

narrow circumstances may a habeas petitioner present evidence that was not part of
the state-court record. Shoop, 142 S. Ct. at 2044. “Thus, although state prisoners
may occasionally submit new evidence in federal court, ‘AEDPA’s statutory
scheme is designed to strongly discourage them from doing so.” Id. (quoting

Pinholster, 563 U. S. at 186).
2. The Double Jeopardy Claim.
Hummert avers that the Commonwealth violated his right to protection from

double jeopardy, as guaranteed by the Fifth and Fourteenth Amendments of the
United States Constitution. Doc. 1 at 5. Hummert explains that he was first tried in
September 2006, and found guilty, but a judge “ordered [a] new trial on [October

30, 2008,] due to [his] PCRA that showed a Brady violation and a second time [the
C]ommonwealth failed to ‘make full and complete disclosures.’” Id. According to
Hummert, double jeopardy was violated when he was tried again, in May 2012,
and found guilty. Id. The respondent, however, argues that Hummert did not

exhaust this claim in state court. Doc. 27 at 18. The respondent elaborates:
Defendant filed a PCRA after his first trial for the purpose of
seeking a new trial; he now clearly regrets that decision as he
was convicted at the second trial as well. Regardless,
Defendant did not raise this bizarre issue on either direct appeal
or PCRA review.
Id. Hummert takes issue with this characterization of his argument, explaining that
the record “shows that he has a legitimate claim” and that he exercised “due
diligence” in raising the issue prior to the second trial. Doc. 32 at 10–11.
Hummert’s discussions of double jeopardy concerns in his direct appeal and
PCRA proceedings are confined to argument in his PCRA that his second trial
counsel was ineffective for not raising additional grounds to dismiss the second
trial as violating double jeopardy. See doc. 27-1 at 1493, 1497, 1527, 1551. As
discussed above, however, raising a claim within the context of an ineffective-
assistance-of-counsel claim does not exhaust the issue with the state court. See

Lambert, 134 F.3d at 513 (citing Evans, 959 F.2d at 1230) (“the state court must
have available to it the same method of legal analysis as that to be employed in
federal court”). Further, in his PCRA petition, Hummert raised an ineffective

assistance of counsel claim and reasoned that alleged prosecutorial misconduct
other than that alleged by Hummert in the present habeas petition merited double
jeopardy protections. See doc. 27-1 at 1493, 1497, 1527. We, therefore, conclude
that the double jeopardy claim was not exhausted in either the direct appeal or

PCRA processes.
Hummert, however, filed a motion to dismiss the second trial based, in part,
on the issue of double jeopardy. Doc. 27-1 at 1433. And when this motion was

denied by the trial court, he appealed to the Superior Court. Id. And when the
Superior Court affirmed, he requested allowance of an appeal to the Pennsylvania
Supreme Court, which was denied. Id. Hummert argues that this motion to
dismiss, therefore, exhausted this claim. The Commonwealth does not address this

argument.
In Briston v. Wholey, the Third Circuit reviewed the petitioner’s motion to
dismiss “before the Court of Common Pleas, and his brief on appeal in the

Pennsylvania Superior Court,” and concluded that, because the petitioner had
“asserted his double jeopardy claim ‘in terms so particular as to call to mind’ the
Fifth Amendment’s proscription of double jeopardy” “he fully exhausted his

federal double jeopardy claim prior to filing his federal habeas petition.” 307 Fed.
Appx. 616, 617–18 (3d Cir. Jan. 22, 2009). Here, Hummert’s double jeopardy
claim has been fairly presented to the state court through the motion to dismiss and

appellate proceedings. See docs. 37-1–37-16. We, therefore, proceed to the merits
of the double jeopardy claim.

i. Double Jeopardy Standards.

The Double Jeopardy Clause of the Fifth Amendment, which provides “nor
shall any person be subject for the same offense to be twice put in jeopardy of life
or limb,” U.S. CONST amend. V, “is applicable to the States through the Fourteenth

Amendment,” Benton v. Maryland, 395 U.S. 784, 787 (1969). “The Double
Jeopardy Clause, however, does not offer a guarantee to the defendant that the
State will vindicate its societal interest in the enforcement of the criminal laws in
one proceeding.” Oregon v. Kennedy, 456 U.S. 667, 672 (1982) (citing United

States v. Jorn, 400 U.S. 470, 483 – 84 (1971) (plurality opinion); Wade v. Hunter,
336 U.S. 684, 689 (1949)). The Supreme Court, therefore, has acknowledged only
a limited exception to permitting a second proceeding, finding that even

“[p]rosecutorial conduct that might be viewed as harassment or overreaching, even
if sufficient to justify a mistrial on defendant’s motion . . . does not bar retrial
absent intent on the part of the prosecutor to subvert the protections afforded by the

Double Jeopardy Clause.” Id. at 675–76.

ii. The Superior Court Opinion.

The Superior Court considered Hummert’s pretrial motion to dismiss the
second trial on appeal. Doc. 27-1 at 1433. The Superior Court set forth the
standard for double jeopardy protections as follows:
The Double Jeopardy Clause of the Fifth amendment to the
United States Constitution commands that “no person shall …
be subject for the same offense to be twice put in jeopardy of
life or limb. Under this Clause, once a defendant is placed in
jeopardy for an offense, and jeopardy terminates with respect to
that offense, the defendant may neither be tried nor punished a
second time for the same offense. The Pennsylvania Supreme
Court has recognized that “the corresponding proscription
contained in the Pennsylvania Constitution, Pa. Const. art. 1,
§ 10, ‘involves the same meaning, purpose, and end[ ]’; thus, it
has generally been construed as coextensive with its federal
counterpart.”
Doc. 37-14 at 4–5 (internal citations omitted) (alterations in original). The
Superior Court then concludes, “[b]ecause further discussion by this Court would
amount to little more than reiteration of the trial court’s Opinion, we adopt the
rationale employed in the trial court’s Opinion as our own with regard to each of
Hummert’s claims.” Id. at 5 (citing Trial Court Opinion, 6/30/10, at 7–16). We
thus turn now to the trial court opinion. See doc. 37-6.
The trial court explained that “[p]rosecutorial overreaching may result in
dismissal of charges pursuant to the prohibitions against double jeopardy[,]” when

the misconduct is “designed to provoke a mistrial” or “undertaken in bad faith to
prejudice or harass the defendant.” Id. at 11. The court then observes that “a mere
finding of willful prosecutorial misconduct will not necessarily warrant dismissal

of charges” as dismissal is “an extreme sanction to be imposed sparingly and only
when blatant prosecutorial misconduct exists.” Id. at 12 (citing Commonwealth of
Pennsylvania v. Burke, 566 Pa. 402, 417, 781 A.2d 1136, 1144–1145 (2001)).
The trial court ultimately concluded:

The record does not support a finding that the prosecutor acted
intentionally or in bad faith to deny the Defendant of a fair trial.
Moreover, the facts of record supporting a Brady violation do
not rise to the level of prosecutorial misconduct present in
Moose, which the Supreme Court described as a “willful
violation of Rule 305”, [sic.] “villainy”, [sic.] and raised such
ethical concerns that it referred the District Attorney to the
Disciplinary Board.”
Id. at 15–16 (citing Commonwealth of Pennsylvania v. Moose, 529 Pa. 218, 229,
235, 240, n.12 (1992)). Accordingly, the Court denied the motion to dismiss on
double jeopardy grounds. Id. at 16.
iii. The state court’s adjudication was neither contrary to
clearly established Federal Law, as determined by the
Supreme Court of the United States nor was it an
unreasonable application of clearly established federal
law nor based on an unreasonable determination of the
facts.
Hummert has not cited to contrary Supreme Court precedent, nor has he
cited to Supreme Court cases applicable to the fact scenario here. And, as
described above, the state court applied standards consistent with the clearly
established Federal Law. Thus, the Superior Court’s decision on Hummert’s claim
of double jeopardy was not contrary to clearly established federal law. So we turn
to whether the state court’s decision resulted in a decision that involved an
unreasonable application of clearly established federal law, as set forth above, or
resulted in a decision on an unreasonable determination of the facts. We find that

the decision did not result in such an unreasonable result.
As set forth above, the Superior Court, through the adoption of the trial
court’s opinion, found that no exception applied to foreclose the possibility of

Hummert constitutionally facing a second trial. “A state court’s determination that
a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.” Harrington, 562
U.S. at 101 (quoting Yarborough, 541 U.S. at 664). In other words, “[a]ll that

matter[s] [is] whether the [Pennsylvania Superior Court], notwithstanding its
substantial ‘latitude to reasonably determine that a defendant has not [shown
prejudice],’ still managed to blunder so badly that every fairminded jurist would
disagree.” Mays, 141 S. Ct. at 1149 (quoting Knowles, 556 U.S. at 123). Applying

this deferential standard, we find that the Superior Court’s determination was
reasonable. And, because Hummert has not argued that the Superior Court got the
facts wrong, we cannot conclude that the Superior Court’s decision was based on

an unreasonable determination of the facts.

3. The Ineffective-Assistance-of-Counsel Claims.
Hummert alleges that his conviction was, in part, a result of ineffective

assistance of counsel. Doc. 1 at 10–11. As discussed above, several of these
claims are moot or unexhausted. All that remains is Hummert’s ineffective-
assistance-of-counsel claim for failing to correct the record when the

Commonwealth presented false testimony. Id. During the PCRA proceedings,
Hummert raised the following two issues on appeal: (1) “Failing to challenge
discrepancies in Detective Loper’s testimony regarding the Appellant’s height,
which was a material issue of fact at Appellant’s trial and his testimony regarding

the length of the chain alleged to have been used [to kill Charlene] which
contradicted other witnesses’ testimony”; and (2) “Failing to challenge the
inconsistent testimony of Commonwealth witness Carolyn Benish who in the first

trial stated that the decedent did not mention the stalker in the two to three months
preceding her death[,] whereas, in the second trial, she testified that the decedent
did say she believed someone was stalking her in the months preceding her death.”

Doc. 27-1 at 1557 (alteration in original). Mindful of our obligation to generously
construe pro se filings, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), we find
that Hummert exhausted his claim based on failure to correct false Commonwealth

testimony. We will thus address this claim on the merits.
We begin our discussion of this final claim by setting forth the standards for
deciding ineffective-assistance-of-counsel claims. We next set forth the Superior
Court’s opinion regarding this claim. Then, addressing the merits of the claim, we

conclude that Hummert has not shown that the Superior Court’s decision was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States. Nor has Hummert

shown that the decision was based on an unreasonable determination of the facts.
Thus, Hummert is not entitled to habeas relief on this claim.

i. Ineffective Assistance of Counsel Standards.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of counsel for his defence.”
U.S. CONST. AMEND VI. The purpose of the right to the assistance of counsel is to

ensure a fair trial, and “the Court has recognized that ‘the right to counsel is the
right to the effective assistance of counsel.’” Strickland v. Washington, 466 U.S.
668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).

“The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Id. “The Sixth

Amendment guarantees reasonable competence, not perfect advocacy judged with
the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003). The clearly
established federal law as to an ineffective-assistance-of-counsel claim is
Strickland, which sets forth a two-prong analysis.

Under the first prong of Strickland, the petitioner must establish that
counsel’s performance was deficient. 466 U.S. at 687. “Strickland’s first prong
sets a high bar.” Buck v. Davis, 137 S. Ct. 759, 775 (2017). To establish that

counsel’s performance was deficient, the petitioner must establish that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466
U.S. at 688. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. As such, the court “must apply a ‘strong presumption’ that

counsel’s representation was within the ‘wide range’ of reasonable professional
assistance,” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689), and
“[t]o overcome that presumption, a defendant must show that counsel failed to act

‘reasonabl[y] considering all the circumstances[,]’” Pinholster, 563 U.S. at 189
(quoting Strickland, 466 U.S. at 688). “The challenger’s burden is to show ‘that
counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.’” Harrington, 562 U.S. at 104
(quoting Strickland, 466 U.S. at 687).
Under the second prong of Strickland, the petitioner must establish

prejudice. Strickland, 466 U.S. at 687. To do so, the petitioner must show a
reasonable probability that, if not for counsel’s errors, the result of the proceeding
would have been different. Id. at 694. The petitioner “need not prove that the
evidence would have been insufficient if not for counsel’s errors . . . [or] ‘that

counsel’s deficient conduct more likely than not altered the outcome.’” Saranchak
v. Sec’y, Pa. Dep’t of Corr., 802 F.3d 579, 588 (3d Cir. 2015) (quoting Strickland,
466 U.S. at 693). Rather, the issue is whether there is a reasonable probability of a

different result. Id. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “That requires
a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Pinholster,
563 U.S. at 189 (quoting Harrington, 562 U.S. at 112).

To prevail on an ineffective-assistance claim, a petitioner must satisfy both
prongs of Strickland. A court can choose which prong of the standard to apply
first, and it may reject an ineffectiveness claim on the ground that the petitioner
was not prejudiced without addressing whether counsel’s performance was
deficient. Strickland, 466 U.S. at 697.

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010). “Even under de novo review, the standard for
judging counsel’s representation is a most deferential one.” Premo v. Moore, 562

U.S. 115, 122 (2011). And “[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington,
562 U.S. at 105. 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.
ii. The Superior Court Opinion.

The Superior Court set forth the three-part standard for ineffective-
assistance-of-counsel claims under the PCRA as follows:
[C]ounsel is presumed to be effective.
To overcome this presumption, a PCRA petitioner must plead
and prove that: (1) the underlying legal claim is of arguable
merit; (2) counsel’s action or inaction lacked any objectively
reasonable basis designed to effectuate his client’s interest; and
(3) prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.
A failure to satisfy any of the three prongs of [this] test requires
rejection of a claim of ineffective assistance[.]
Doc. 27-1 at 1559–60 (emphasis and alterations in original) (Commonwealth v.
Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting Commonwealth v. Brown,
196 A.3d 130, 150 (Pa. 2018)).
The Superior Court did not find inconsistency in the testimony of Carolyn
Benish (“Benish”), a friend of Charlene’s and a witness in both trials:
[W]e fail to see the inconsistency in Benish’s testimony. In his
brief, Appellant states: ‘At the first trial, [Benish] testified she
was not aware that the victim was being stalked; however, at
the second trial, she testified the victim had alluded to being
stalked.’ Appellant’s Brief at 19. This assertion is contrary to
the record. During the first trial, when Benish was asked if the
victim ‘ever mention[ed the] existence or possible existence of
a stalker[,]” she replied: “Yes.” N.T. First Trial at 528. Benish
then gave details about her conversation with he victim, who
had thought that somebody was following her. Id. at 528–29.
During the second trial, when asked if the victim indicated to
her ‘that she thought someone was stalking her in the months
before her death[,]’ Benish again answered, ‘Yes.’ N.T. Second
Trial at 692. These statements are not in conflict.
Doc. 27-1 at 1562 (alterations in original). And the Superior Court stated that
Hummert failed to “cite to the notes of testimony from” Lieutenant Loper, who
investigated Charlene’s murder, thereby violating Pennsylvania Rule of Appellate
Procedure 2119(c). Id.
The Superior Court further found that even if some inconsistency were
found in the testimony, “Appellant’s ineffectiveness claims relating to these

witnesses’ testimonies would still fail.” Id. at 1563. The court reasoned:
[Hummert] has failed to establish ‘prejudice, to the effect that
there was a reasonable probability of a different outcome.’
Medina, 209 A.3d at 1000. None of these details – [Hummert]’s
height, the cable’s length, nor the victim’s conversations with
Benish – were cited in this Court’s sufficiency analysis on
direct appeal from the second trial. Hummert, NO. 1549 MDA
2012, at 4-6. These particulars thereby were not needed to
establish [Hummert]’s guilty, and the outcome of the trial
would not have changed even if trial counsel had challenged
them. As [Hummert] has failed to satisfy one of the three
prongs of the ineffectiveness test for either his challenges to
Lieutenant Loper’s or Benish’s testimony, both claims fail.
Medina, 209 A.3d at 1000.
Doc. 27-1 at 1563.

iii. The state court’s adjudication was not contrary to
clearly established Federal Law, as determined by the
Supreme Court of the United States.
Although the Pennsylvania courts use slightly different language to
articulate the ineffective-assistance-of-counsel standard, the standard used by the
Pennsylvania courts is consistent with the Strickland standard. The Third Circuit
“has repeatedly recognized that Pennsylvania’s test for ineffective assistance of
counsel is consistent with the Supreme Court’s decision in Strickland because it
requires ‘findings as to both deficient performance and actual prejudice.’” Tyson v.
Superintendent Houtzdale SCI, 976 F.3d 382, 391 (3d Cir. 2020) (quoting Mathias
v. Superintendent Frackville SCI, 876 F.3d 462, 476 (3d Cir. 2017)). And the
Superior Court applied that standard. Thus, the Superior Court’s decision on

Hummert’s claim of ineffective assistance of counsel was not contrary to clearly
established federal law. So, we turn to whether the state court’s decision resulted
in a decision that involved an unreasonable application of clearly established

federal law, i.e., Strickland, or resulted in a decision on an unreasonable
determination of the facts.

iv. The state court’s decision was not an unreasonable
application of clearly established federal law. Nor was it
based on an unreasonable determination of the facts.
The state court’s adjudication of Hummert’s ineffective-assistance-of-
counsel claim was not an unreasonable application of Strickland. Nor was the state
court’s decision based on an unreasonable determination of the facts.

As set forth above, the Superior Court concluded that Hummert failed to
demonstrate an inconsistency in Benish’s testimony and failed to satisfy the
prejudice prong of his claim of ineffective assistance of counsel. The Superior
Court explained that the testimony in question from Benish and Lieutenant Loper

was not relied upon in its direct appeal sufficiency analysis. Doc. 27-1 at 1563.
Under the “double deferential” standard that applies to a Strickland claim
evaluated under 28 U.S.C § 2254(d)(1), Knowles, 556 U.S. at 123, the Superior
Court’s determination in this regard was reasonable. Further, “[a] state court’s
determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington, 562 U.S. at 101 (quoting Yarborough, 541 U.S. at 664). In other
words, “[a]ll that matter[s] [is] whether the [Pennsylvania Superior Court],

notwithstanding its substantial ‘latitude to reasonably determine that a defendant
has not [shown prejudice],’ still managed to blunder so badly that every fairminded
jurist would disagree.” Mays, 141 S. Ct. at 1149 (quoting Knowles, 556 U.S. at
123). Here, the Superior Court has reasonably determined that the failure to

challenge these inconsistencies—to the extent there were, in fact inconsistencies—
does not appear to have prejudiced Hummert.
Hummert also has not argued that the Superior Court got the facts wrong.

Thus, we cannot conclude that the Superior Court’s decision was based on an
unreasonable determination of the facts.
IV. Conclusion.
For the foregoing reasons, we will deny Hummert’s petition for a writ of

habeas corpus, and we will deny a certificate of appealability. An appropriate
order follows.

S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413232. Public record. Not legal advice.