Opinion

Gelsinger v. Capozza

Court
District Court, M.D. Pennsylvania
Filed
May 21, 2024
Cited by
0 cases
Authority
More cited than 29.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL GELSINGER, :

Petitioner :

: No. 1:19-cv-01654

v. :

: (Judge Kane)

ERIC ARMEL, et al., :

Respondents :

MEMORANDUM

Before the Court is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254 through

which pro se Petitioner Michael Gelsinger (“Gelsinger”) challenges his 2014 convictions for

first-degree murder and attempted homicide in the Dauphin County Court of Common Pleas.

This Court previously granted the petition based on a finding that Gelsinger’s trial counsel

provided ineffective assistance of counsel, but the United States Court of Appeals for the Third

Circuit (“the Third Circuit”) vacated the Court’s judgment and remanded the case for further

proceedings consistent with its opinion. Upon further consideration of Gelsinger’s claims and

the parties’ respective arguments in accordance with the Third Circuit’s guidance, the Court will

deny the petition for writ of habeas corpus with prejudice.

I. BACKGROUND

Gelsinger is serving a term of life imprisonment imposed after he was convicted by a jury

of first-degree murder, attempted homicide, prohibited possession of a firearm, and carrying a

firearm without a license. See Commonwealth v. Gelsinger, No. CP-22-CR-0000926-2014

(Dauphin Cnty. Ct. Com. Pl. Dec. 5, 2014). The Superior Court of Pennsylvania (“the Superior

Court”) set forth the background of the case as follows:

At approximately 1:00 a.m. on December 6, 2013, Officer Michael Rudy of

the Harrisburg City Police received a report of shots fired around the 1600 Block

of Thompson Street in Harrisburg. He arrived at 1619 Thompson Street and

encountered Shawn Fox, who resided there, standing on the front porch. Officer

Rudy observed a non-responsive female, later identified as Fox’s girlfriend, Tiana

Dockens (“Victim”), lying on the porch. As Officer Rudy attempted to treat

Victim, Fox's roommate and cousin, Justin Baxter, approached the porch “cursing,

yelling,” and acting “belligerent.” Officer Rudy discovered “a very small hole” on

Victim's abdomen. Other police officers arrived, and Officer Rudy rode in the

ambulance with Victim to Hershey Medical Center where she was pronounced

dead. The Dauphin County Coroner’s Office performed an autopsy that morning

and concluded, “[t]he cause of death [was] a gunshot wound to the abdomen” and

the manner of death was homicide.

At the scene, police recovered three .380 cartridge casings that were

discharged from the same firearm and five .40 casings discharged from a single

Glock pistol. Police determined the Glock belonged to Baxter. They believed

[Gelsinger], while a passenger in a car driven by his brother, Joseph Payne-Casiano,

exchanged gunfire with Baxter resulting in Victim’s death. Moreover, a bullet

recovered from Victim was determined to be “of the .380, 9-millimeter class.” The

dock [sic] was ultimately discovered outside of 1617 Thompson Street, and the

other firearm was never recovered.

On December 11, 2013, the Commonwealth filed a criminal complaint

charging [Gelsinger] with the above crimes. The Commonwealth joined Payne-

Casiano as a co-defendant, and charged him with murder and attempted murder.

On November 18, 2014, [Gelsinger] filed a motion for severance based on

the Commonwealth's intention to introduce at trial a hand-written note by Payne-

Casiano to another inmate. The contested portion of the note read, “1. Get at Moe

see what she gone [sic] say at my bro trial, try convince her to say bull shot first.”

Appellant argued that under the United States Supreme Court decision in Bruton v.

United States, 391 U.S. 123 (1968), if his codefendant declined to testify, the

admission of Payne-Casiano’s note would violate the Confrontation Clause of the

Sixth Amendment[.] The trial court held oral argument and denied the motion on

November 25, 2014.

See Commonwealth v. Gelsinger, No. 627 MDA 2015, 2016 WL 1221444, at *1 (Pa. Super. Ct.

Mar. 29, 2016). Gelsinger’s jury trial began on December 1, 2014. See id. at *2. During trial,

the victim’s father and sister testified that Gelsinger began shooting before Baxter did. See id. at

*2–3. Gelsinger testified on his own behalf, and the essence of his defense “was that Baxter

fired first, and he was ‘in fear [for his] life, so [he] returned fire.’” See id. On December 5,

2014, the jury convicted Gelsinger of first-degree murder, attempted homicide, possession of a

firearm prohibited, and carrying a firearm without a license. See id. Gelsinger subsequently

filed a post-sentence motion challenging the weight and sufficiency of the evidence, which the

trial court denied on April 3, 2015. See id.

Gelsinger timely appealed to the Superior Court, raising the following claims for relief:

(1) the evidence was insufficient to prove that he committed first-degree murder and attempted

homicide because the Commonwealth failed to prove that he “acted willfully, deliberately, or

with premeditation” and failed to disprove that he acted in self-defense; (2) the trial court erred

in denying his motion for severance; and (3) the verdict was against the weight of the evidence

because the testimony presented by the Commonwealth was inconsistent and because the

evidence failed to establish that he “acted with malice and the specific intent to kill.” (Doc. No.

13-1 at 11.) On March 29, 2016, the Superior Court affirmed Gelsinger’s judgment of sentence.

See Gelsinger, 2016 WL 1221444, at *1. On August 22, 2016, the Supreme Court of

Pennsylvania denied Gelsinger’s petition for allowance of appeal. See Commonwealth v.

Gelsinger, No. 290 MAL 2016 (Pa. 2016).

Gelsinger subsequently filed a pro se Post Conviction Relief Act (“PCRA”) petition,

raising several claims for relief, including claims of ineffective assistance of counsel. See

Gelsinger, No. CP-22-CR-0000926-2014. Counsel was appointed to represent Gelsinger in the

PCRA proceeding and filed an amended PCRA petition asserting the following four claims for

relief: (1) trial counsel was ineffective for failing to argue that the Harrisburg Police Department

did not perform gunshot residue testing on Payne-Casiano; (2) trial counsel was ineffective for

failing to object to the Commonwealth’s introduction of Baxter’s holster and magazine at trial;

(3) appellate counsel was ineffective for not raising the issue regarding the failure to perform

gunshot residue testing on appeal; and (4) appellate counsel was ineffective for failing to file a

cross-appeal on direct review as to the unreasonable application of established federal and state

law regarding the alleged Bruton violation. (Id. at 5–6.) The PCRA court held a hearing on

Gelsinger’s amended PCRA petition on May 31, 2018 and June 1, 2018. See Gelsinger, No. CP-

22-CR-0000926-2014. During the hearing, Gelsinger’s trial counsel, Andrea Haynes and Petra

Gross, testified in relevant part that their strategy during the trial was to argue that Gelsinger was

acting in self-defense when he fired his gun at Baxter. (Doc. No. 76-2 at 175, 185.)

On August 17, 2018, the PCRA court dismissed Gelsinger’s amended PCRA petition.

See id. The Superior Court affirmed the dismissal of Gelsinger’s amended PCRA petition on

March 4, 2019. See Commonwealth v. Gelsinger, No. 1513 MDA 2018, 2019 WL 1012156, at

*1 (Pa. Super. Ct. Mar. 4, 2019). On September 10, 2019, the Supreme Court of Pennsylvania

denied Petitioner’s petition for allowance of appeal. See Commonwealth v. Gelsinger, No. 193

MAL 2019 (Pa. 2019).

Gelsinger filed the instant petition for writ of habeas corpus on September 25, 2019.

(Doc. No. 1.) He asserts ten claims for habeas corpus relief: (1) that trial counsel was ineffective

for failing to request a jury instruction on the lesser included charge of aggravated assault with

regard to the attempted murder of Baxter;1 (2) that trial counsel was ineffective for failing to

impeach Monique Dockens with a prior statement; (3) that trial counsel was ineffective for

failing to request a cautionary eyewitness instruction concerning the testimony of Dion and

1 Gelsinger frames his ineffectiveness claims as assertions that PCRA counsel was ineffective

for failing to argue trial counsel’s ineffectiveness. See (Doc. No. 1). This Court previously

construed the claims not as advancing freestanding claims of PCRA counsel’s ineffectiveness,

but rather as arguing PCRA counsel’s ineffectiveness to excuse the procedural default of his

underlying claims of ineffective assistance of trial counsel pursuant to Martinez v. Ryan, 566

U.S. 1 (2012). See (Doc. No. 63 at 12). To the extent the claims are intended as freestanding

claims of PCRA counsel’s ineffectiveness, they are denied because they are not cognizable

habeas corpus claims. See 28 U.S.C. § 2254(i) (stating that “[t]he ineffectiveness or

incompetence of counsel during Federal or State collateral post-conviction proceedings shall not

be a ground for relief in a proceeding arising under Section 2254”).

Monique Dockens; (4) that the trial court violated Gelsinger’s rights under the Sixth Amendment

by denying his motion for severance; (5) that trial counsel was ineffective for failing to request

that Payne-Casiano’s note be suppressed; (6) that trial counsel was ineffective for failing to

request a change of venue; (7) that trial counsel was ineffective for failing to object when the

Commonwealth questioned potential jurors about whether they had heard about the case in the

presence of the entire jury panel; (8) that evidence at trial was insufficient to convict Gelsinger of

first-degree murder and attempted homicide; (9) that trial counsel was ineffective for failing to

object to the trial court’s instruction on consciousness of guilt; and (10) that trial counsel was

ineffective for failing to request a jury instruction indicating that transferred intent applied to

third-degree murder as well as first-degree murder. (Id.) Recognizing that Gelsinger’s

ineffective assistance of counsel claims were procedurally defaulted in state court, the Court

conducted an evidentiary hearing on June 17, 2021, to determine whether the procedural default

could be excused based on PCRA counsel’s purported ineffectiveness pursuant to Martinez.2

(Doc. No. 58.) During the hearing, the Court heard testimony from Gelsinger’s trial counsel and

his PCRA counsel. (Id.)

Based in part on evidence adduced during the June 17, 2021 evidentiary hearing, the

Court issued a Memorandum and Order on September 2, 2021, finding that: (1) the procedural

default of Gelsinger’s first and tenth claims was properly excused based on PCRA counsel’s

ineffectiveness under Martinez and (2) the first and tenth claims succeeded on their merits in

showing ineffective assistance of trial counsel. (Doc. Nos. 63–64.) The Court accordingly

2 As discussed in more detail below, Martinez holds that procedural default of an ineffective

assistance of trial counsel claim may be excused in certain circumstances based on the

ineffective assistance of counsel, or the lack of counsel, in initial post-conviction collateral

proceedings. See Martinez, 566 U.S. at 8–18.

granted the petition for writ of habeas corpus based on Gelsinger’s first and tenth claims, vacated

his convictions and sentences for first-degree murder and attempted homicide, and stated that the

Commonwealth could retry Gelsinger within ninety days. (Id.) The Court additionally found

that Gelsinger’s eight other claims were moot because the Court had granted habeas corpus relief

with respect to the first and tenth claims. (Doc. No. 63 at 25 n.4.) Respondents appealed on

September 30, 2021. (Doc. No. 65.)

On appeal, the Third Circuit vacated this Court’s order granting the petition for writ of

habeas corpus. See Gelsinger v. Superintendent Fayette SCI, No. 21-2844, 2022 WL 3666228,

at *1 (3d Cir. Aug. 25, 2022); (Doc. No. 69-1). The Third Circuit noted that, based on the

record, it appeared that this Court “both excused Gelsinger’s procedural default and granted

relief on his underlying IAC claim based, at least in part, on evidence beyond the state court

record” gleaned from the evidentiary hearing. See Gelsinger, 2022 WL 3666228, at *2. The

Third Circuit held that considering this evidence was improper under the Supreme Court’s

holding in Shinn v. Ramirez, 596 U.S. 366 (2022), because Shinn holds that “a habeas court

‘may not consider new evidence on the merits of a negligent prisoner’s defaulted claim unless

the exceptions in [28 U.S.C.] § 2254(e)(2) are satisfied.’” See Gelsinger, 2022 WL 3666228, at

*2 (quoting Shinn, 596 U.S. at 366 (internal alterations omitted)). “The proper procedure,” the

Third Circuit continued, “is to first ‘decide whether an underlying ineffectiveness claim succeeds

considering only the state court record,” and then, if such a step is satisfied, conduct an

evidentiary hearing to determine whether the procedural default of the underlying claim may be

excused based on PCRA counsel’s ineffectiveness. See id. (quoting Williams v. Superintendent

Mahanoy SCI, 45 F.4th 713, 724 (3d Cir. 2022)). “[I]f the state court record alone does not

allow the petitioner to succeed on the underlying ineffectiveness claim, ‘a federal court must skip

hearings altogether and deny habeas relief.’” Id. (quoting Williams, 45 F.4th at 723 (internal

alterations omitted). The Third Circuit accordingly remanded the case to this Court to determine

whether Gelsinger’s underlying ineffective assistance of counsel claims could be established

based solely on the record that was developed in state court and not based on any evidence

adduced during the June 17, 2021 evidentiary hearing. See id. at *3.

Following remand, this Court reopened the case on November 21, 2022, and directed the

parties to file supplemental briefs addressing the issues as framed by the Third Circuit. (Doc.

No. 73.) Gelsinger timely filed a supplemental brief through counsel on January 9, 2023. (Doc.

No. 76.) Respondents have not filed a supplemental brief responding to Gelsinger’s brief, and

the deadline for doing so has expired. The petition is accordingly ripe for resolution.

II. LEGAL STANDARDS

A. Substantive Standard

Habeas corpus is an “extraordinary remedy” reserved for defendants who were

“grievously wronged” by criminal proceedings. See Calderon v. Coleman, 525 U.S. 141, 146

(1998). The exercise of restraint by a federal court in reviewing and granting habeas corpus

relief is appropriate due to considerations of comity and federalism. See Engle v. Isaac, 456 U.S.

107, 128 (1982). “The States possess primary authority for defining and enforcing the criminal

law. In criminal trials they also hold the initial responsibility for vindicating constitutional

rights. Federal intrusions into state criminal trials frustrate both the States’ sovereign power and

their good-faith attempts to honor constitutional law.” Id. States also have a recognized interest

in the finality of convictions that have survived direct review within the state court system. See

Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).

A district court may entertain an application for a writ of habeas corpus filed by a person

in state custody “only on the ground that he is in custody in violation of the Constitution or laws

of the United States.” See 28 U.S.C. § 2254(a). If a claim presented in a Section 2254 petition

has been adjudicated on the merits in state court proceedings, the Anti-Terrorism and Effective

Death Penalty of 1996 (“AEDPA”) sets stringent limits on a federal court’s ability to issue a writ

of habeas corpus. Specifically, AEDPA states, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The standard for obtaining habeas corpus relief under AEDPA is “difficult to meet.” See

Mays v. Hines, 592 U.S. 385, 391 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 102

(2021)). Federal habeas corpus relief is meant to guard against “extreme malfunctions in the

state criminal justice systems” and is not meant to substitute for “ordinary error correction

through appeal.” See Harrington, 562 U.S. at 102–03 (citing Jackson v. Virginia, 443 U.S. 307,

332 n.5 (1979) (Stevens, J. concurring in judgment)). “Federal habeas courts must defer to

reasonable state-court decisions,” see Dunn v. Reeves, 594 U.S. 731, 732 (2021), and may only

grant habeas corpus relief when the state court’s decision “was so lacking in justification” that its

error was “beyond any possibility for fair minded disagreement,” see Mays, 592 U.S. at 391

(quoting Harrington, 562 U.S. at 102).

B. Exhaustion and Procedural Default

Absent unusual circumstances, a federal court should not entertain a petition for writ of

habeas corpus, unless the petitioner has first satisfied the exhaustion requirement articulated in

28 U.S.C. § 2254(b). Under Section 2254(c), a petitioner will not be deemed to have exhausted

his available state remedies if he had the right under the law to raise, by any available procedure,

the question presented. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999). A claim is exhausted

when it has been “fairly presented” to the state court. See Picard v. Connor, 404 U.S. 270, 275

(1971). To that end, the federal habeas claim “must be the substantial equivalent of that

presented to the state courts.” See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). The

petition must present the claim “in a manner that puts [the respondents] on notice that a federal

claim is being asserted.” See Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005). “The

Supreme Court has instructed that a claim is not ‘fairly presented’ if the state court ‘must read

beyond a petition or brief . . . in order to find material’ that indicates the presence of a federal

claim.” Collins v. Sec’y of Pa. Dep’t of Corrs., 742 F.3d 528, 542 (3d Cir. 2014) (quoting

Baldwin v. Reese, 541 U.S. 27, 32 (2004)). Moreover, a habeas corpus petitioner has the burden

of proving the exhaustion of all available state remedies. See 28 U.S.C. § 2254. Overall, the

exhaustion requirement advances the goals of comity and federalism while reducing “piecemeal

litigation.” See Duncan v. Walker, 533 U.S. 167, 180 (2001).

“When a claim is not exhausted because it has not been ‘fairly presented’ to the state

courts, but 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.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Claims deemed exhausted

because of a state procedural bar are considered procedurally defaulted. See Lines v. Larkins,

208 F.3d 153, 159 (3d Cir. 2000). The district court then analyzes the claims under the

procedural default doctrine. See id. The purpose of this rule is to prevent habeas petitioners

from avoiding the exhaustion doctrine by defaulting their claims in state court. See Coleman v.

Thompson, 501 U.S. 722, 732 (1991). In Cone v. Bell, 556 U.S. 449 (2009), the United States

Supreme Court explained:

It is well established that federal courts will not review questions of federal law

presented in a habeas petition when the state court’s decision rests upon a state-law

ground that is independent of the federal question and adequate to support the

judgment. In the context of federal habeas proceedings, the independent and

adequate state ground doctrine is designed to ensure that the State’s interest in

correcting their own mistakes is respected in all federal habeas cases. When a

petitioner fails to properly raise his federal claims in state court, he deprives the

State of an opportunity to address those claims in the first instance and frustrates

the State’s ability to honor his constitutional rights. Therefore, consistent with the

longstanding requirement that habeas petitioners must exhaust available state

remedies before seeking relief in federal court, we have held that when a petitioner

fails to raise his federal claims in compliance with relevant state procedural rules,

the state court’s refusal to adjudicate the claim ordinarily qualifies as an

independent and adequate state ground for denying federal review.

See id. at 465 (internal quotations and citations omitted).

However, habeas corpus review is not barred in every instance in which a state court

invokes a procedural rule to preclude its review of the federal claims asserted by a state prisoner.

A state procedural rule can preclude federal habeas corpus review “only when the state rule is

‘independent of the federal question [presented] and adequate to support the judgment.’” See

Levya v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187, 199

(3d Cir. 2007)). The requirements of independence and adequacy are distinct. See id. A rule is

“independent” if it is not dependent on any federal constitutional question, but “[a] state

procedural ground will not bar federal habeas relief if the state law ground is ‘so interwoven with

federal law’ that it cannot be said to be independent of the merits of a petitioner’s federal

claims.” See Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir. 2004). A rule is “adequate” if “it

was firmly established, readily ascertainable, and regularly followed at the time of the purported

default.” Levya, 504 F.3d at 366 (quoting Szuchon v. Lehman, 273 F.3d 299, 372 (3d Cir.

2001)).

A petitioner whose constitutional claims have not been addressed on the merits due to

procedural default can overcome the default, thereby allowing federal court review, if the

petitioner can demonstrate either: (1) “cause” for the default and “actual prejudice” as a result of

the alleged violation of federal law; or (2) that the failure to consider the claims will result in a

“fundamental miscarriage of justice.” See Coleman, 501 U.S. at 750. In order to show “cause

and prejudice” sufficient to overcome a state court default, a petitioner must demonstrate the

“cause” for his default and “prejudice” attributable thereto. See Werts v. Vaughn, 228 F.3d 178,

192 (3d Cir. 2000) (citing Harris v. Reed, 489 U.S. 255 (1989)). “[T]he existence of cause for a

procedural default must ordinarily turn on whether the prisoner can show that some objective

factor external to the defense impeded counsel’s efforts to comply with the State’s procedural

rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Under the “prejudice prong,” a petitioner

has the burden of showing “not merely that the errors at his trial created a possibility of

prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire

trial with error of constitutional dimensions.” See United States v. Frady, 456 U.S. 152, 170

(1982); see also Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008).

To show “fundamental miscarriage of justice,” a petitioner must establish that “a

constitutional violation has probably resulted in the conviction of one who is actually innocent.”

See Schlup v. Delo, 513 U.S. 298, 326 (1995). Demonstrating actual innocence requires a

stronger showing than that needed to establish prejudice. See id. In Goldblum v. Klem, 510

F.3d 204 (3d Cir. 2007), the Third Circuit explained the applicable two-step inquiry as follows:

first, a “court must decide ‘whether the petitioner has presented new reliable evidence . . . not

presented at trial,” and second, if a petitioner “puts forth new evidence not considered by the

jury, a court asks ‘whether it is more likely than not that no reasonable juror would have

convicted him in light of the new evidence.’” See id. at 225 (citing Hummard v. Pinchak, 378

F.3d 333, 340 (3d Cir. 2004)). If a petitioner can establish cause and prejudice or a fundamental

miscarriage of justice, the Court excuses his default and reviews the merits of the claim

presented.

C. Ineffective Assistance of Post-Conviction Counsel as Cause for Procedural

Default

In Martinez v. Ryan, the United States Supreme court recognized that, under certain

circumstances, the procedural default of an ineffective assistance of trial counsel claim may be

excused where the default was caused, in turn, by ineffective assistance of counsel, or the lack of

counsel, in initial post-conviction collateral proceedings. See Martinez, 566 U.S. at 8–18.

Specifically, the Supreme Court held:

Where, under state law, claims of ineffective assistance of trial counsel must be

raised in an initial-review collateral proceeding, a procedural default will not bar a

federal habeas court from hearing a substantial claim of ineffective assistance at

trial if, in the [state] initial-review collateral proceeding, there was no counsel or

counsel in that proceeding was ineffective.

See id. at 17. For Martinez to apply, Petitioner must show that his ineffective assistance of trial

counsel claims have “some merit,” and that he had ineffective counsel at the initial-review stage

of state collateral proceedings. See Workman v. Sup’t Albion SCI, 915 F.3d 928, 937 (3d Cir.

2019). To demonstrate that a claim has some merit, a petitioner must “show that some

reasonable jurists could debate whether (or for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” See id. at 938. This standard is different from the “standard

applied on the merits under Strickland v. Washington,” see id., because “substantiality is a

notably lower standard than the proof of prejudice required by Strickland’s second prong.” See

Richardson v. Sup’t Coal Twp. SCI, 905 F.3d 750, 764 (3d Cir. 2018).

To demonstrate that PCRA counsel’s deficient performance caused prejudice, Petitioner

“must show that his [PCRA counsel] could have obtained a different result had [counsel]

presented the now-defaulted ineffective-assistance-of-trial-counsel claim.” See Workman, 915

F.3d at 938. However, at this stage, “what is important is that the underlying ineffective-

assistance-of-trial-counsel claim is ‘substantial,’ not that a petitioner has, in fact, been

‘prejudiced’ by trial counsel’s deficient performance under Strickland.” See id. at 939.

Accordingly, if Petitioner “shows that his underlying ineffective-assistance-of-trial-counsel

claim has some merit and that his state post-conviction counsel’s performance fell below an

objective standard of reasonableness, he has shown sufficient prejudice from counsel’s

ineffective assistance that his procedural default must be excused under Martinez.” See id.

Although district courts routinely conducted evidentiary hearings in the years following

Martinez to determine whether counsel in a collateral proceeding was sufficiently ineffective to

excuse a procedural default under Martinez, the United States Supreme Court severely restricted

the conditions under which such evidentiary hearings may be conducted in Shinn. In Shinn, the

Supreme Court noted that “the standard to expand the state-court record” in a Section 2254

habeas corpus proceeding, “is a stringent one”:

If a prisoner has “failed to develop the factual basis of a claim in State court

proceedings,” a federal court “shall not hold an evidentiary hearing on the claim”

unless the prisoner satisfies one of two narrow exceptions, see 28 U.S.C. §

2254(e)(2)(A), and demonstrates that the new evidence will establish his innocence

“by clear and convincing evidence,” § 2254(e)(2)(B).

See Shinn, 596 U.S. at 371. Evidentiary hearings, the Supreme Court noted, are barred in “all

but these extraordinary cases.” See id. The Shinn Court concluded that Martinez does not create

an exception to the barriers to evidentiary hearings created by 28 U.S.C. § 2254(e). See id.

Thus, the Supreme Court held, “under § 2254(e)(2), a federal habeas court may not conduct an

evidentiary hearing or otherwise consider evidence beyond the state-court record based on

ineffective assistance of state postconviction counsel.” See id. at 382. Under Shinn, if a

petitioner cannot meet the “stringent requirements” necessary to expand the state court record

under Section 2254(e), “a federal court may not hold an evidentiary hearing—or otherwise

consider new evidence—to assess cause and prejudice under Martinez.” See id. at 389.

The Third Circuit provided additional explanation of the standard district courts must

apply under Shinn in Williams, 45 F.4th at 723. Under Shinn, the Williams court explained,

“when a state post-conviction attorney negligently fails to develop the facts needed to support a

claim, ‘a federal court may order an evidentiary hearing or otherwise expand the state-court

record only if the prisoner can satisfy § 2254(e)(2)’s stringent requirements,’” and district courts

may not “end-run” around this limit on evidentiary hearings by conducting a Martinez hearing on

procedural default “and then using the expanded federal record to decide the merits of a habeas

claim.” See id. at 723 (quoting Shinn, 596 U.S. at 384, 389). Given the limits imposed on

evidentiary hearings by Section 2254(e) and Shinn, the Williams court noted that Martinez

evidentiary hearings on procedural default are a “waste of time” unless the petitioner “can

prevail on the state court record” on his underlying ineffective assistance of trial counsel claim.

See id. at 723. Thus, under Shinn, “to avoid prolonging federal habeas proceedings,” district

courts “must skip hearings altogether and deny habeas relief unless the prisoner prevails on the

merits considering only the state court record.” See id. at 723–24 (citing Shinn, 596 U.S. at

390). “So before holding a Martinez hearing . . . federal courts in these cases should decide

whether an underlying ineffectiveness claim succeeds considering only the state court record. If

not, federal courts should deny relief without more.” See id. at 724.

The Third Circuit in the instant case specifically directed this Court to decide this case

based on the standards enumerated by Shinn and Williams. The “proper procedure” for this

Court to follow, the Third Circuit explained, “is to first ‘decide whether an underlying

ineffectiveness claim succeeds considering only the state court record,’” and then, if such a step

is satisfied, conduct an evidentiary hearing to determine whether the procedural default of the

underlying claim may be excused based on PCRA counsel’s ineffectiveness. See Gelsinger,

2022 WL 3666228, at *2 (quoting Williams, 45 F.4th at 724).

D. Standard for Ineffective Assistance of Counsel Claims

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court

explained that there are two components to demonstrating a violation of the right to effective

assistance of counsel. First, the petitioner must show that counsel’s performance was deficient.

This requires showing that “counsel’s representation fell below an objective standard of

reasonableness.” See id. at 668; see also Williams v. Taylor, 529 U.S. 362, 390–91 (2000).

Second, under Strickland, the petitioner must show that he was prejudiced by the deficient

performance. “This requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. To

establish prejudice, the defendant “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” See

id. at 694. The Strickland test is conjunctive and a habeas petitioner must establish both the

deficiency in the performance prong and the prejudice prong. See id. at 687; Dooley v. Petsock,

816 F.2d 885, 889 (3d Cir. 1987).

When considering an ineffective assistance of counsel claim, the Court’s analysis is

“doubly deferential” when a state court has already decided that counsel’s performance was

adequate. See Dunn, 594 U.S. at 739. The Court must apply a high level of deference both to

counsel’s actions and to the state court’s determination that counsel’s actions were

constitutionally adequate. See id.; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing

Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003)). The federal court may only grant habeas corpus

relief if “every ‘fairminded jurist’ would agree that every reasonable lawyer would have made a

different decision.” See id. at 2411 (emphasis in original) (quoting Harrington, 562 U.S. at 101).

E. Standard for Sufficiency of Evidence Claims

Federal habeas courts considering sufficiency of evidence claims must view the evidence

in the light most favorable to the prosecution and determine whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” See Jackson,

443 U.S. at 319 (emphasis in original). The Court must look to state law to determine the

substantive elements of the offense. See Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting

Jackson, 443 U.S. at 324 n.16). When the claim has been decided on its merits in state court, the

federal court must be doubly deferential: the jury’s verdict may only be set aside if no rational

finder of fact could have reached the same verdict and the state court decision upholding the jury

verdict may only be disturbed if it is objectively unreasonable. See Lambert v. Warden Greene

SCI, 861 F.3d 459, 467 (3d Cir. 2017) (citing Coleman, 566 U.S. at 650).

F. Standard for Claims Challenging Denial of Motions to Sever

The United States Supreme Court has held that “‘a defendant is deprived of his Sixth

Amendment right of confrontation when the facially incriminating confession of a nontestifying

codefendant is introduced at their joint trial,’ even with a proper instruction.” Samia v. United

States, 599 U.S. 635, 647 (2023) (quoting Richardson v. Marsh, 481 U.S. 207, 208 (1987)). This

rule, first recognized in Bruton, 391 U.S. at 135, represents a “narrow exception” to the general

principle that incriminating out-of-court statements may be admitted as evidence provided that

the jury has been given proper instructions on how to consider the statements as evidence. See

Richardson, 481 U.S. at 207 (citing Bruton, 391 U.S. at 135–36). Although Bruton recognizes

that jury instructions are not sufficient to cure the prejudice caused to a defendant by admission

of a codefendant’s out-of-court confession, jury instructions may be sufficient to cure the

prejudice in instances where a codefendant’s out-of-court statement does not directly implicate

the defendant but rather only does so inferentially. See id.; accord Samia, 599 U.S. at 649–50.

III. DISCUSSION

As noted above, the Third Circuit has remanded this case for further proceedings as to

Gelsinger’s first and tenth claims, on which the Court previously granted habeas corpus relief

based on a finding that Gelsinger established ineffective assistance of counsel. Pursuant to the

Third Circuit’s directions on remand, the Court must reassess the merits of these claims based

only on the evidence developed in the state court record. See Gelsinger, 2022 WL 3666228, at

*2–3; see also Shinn, 596 U.S. at 382; Williams, 45 F.4th at 724. The Court may only consider

whether Gelsinger can overcome the procedural default of the claims caused by PCRA counsel’s

purported ineffectiveness if the Court first determines that the claims succeed on their merits

based on the closed state court record. See Gelsinger, 2022 WL 3666228, at *2–3.

In Gelsinger’s first and tenth claims, he asserts that counsel was ineffective for failing to

request jury instructions on a lesser included charge and transferred intent. (Doc. No. 1.)

Gelsinger contends that these claims may still be established on the closed state court record

because ineffective assistance of counsel is established when counsel fails to suggest jury

instructions that would be favorable to his client “unless the failure is a strategic choice.” (Doc.

No. 76 at 23 (quoting Bey v. Superintendent Greene SCI, 856 F.3d 230, 238 (3d Cir. 2017).)

Gelsinger notes that “[r]espondents do not offer a strategic reason for the omitted instructions”

and posits that “none exists.” (Id.)

The Court finds that Gelsinger cannot establish ineffective assistance of counsel on the

closed state court record. Although Gelsinger is correct that an attorney’s choice to decline to

request jury instructions favorable to the attorney’s client may constitute ineffective assistance of

counsel, this is not true when the decision is based on a strategic choice. See Bey, 856 F.3d at

238. Accordingly, to determine whether counsel acted reasonably in declining to request jury

instructions, the Court must consider the decision in light of counsel’s trial strategy. See id.; see

also United States v. Ware, 595 F. App’x 118, 121 (3d Cir. 2014) (unpublished) (denying habeas

corpus petition where record established that counsel “had a strategic reason” for declining to

request a jury instruction favorable to the defendant).

During PCRA proceedings, trial counsel testified that Gelsinger’s strategy at trial was to

argue that he was acting in self-defense based on Baxter purportedly shooting first. (Doc. No.

76-2 at 175, 185.) Neither Gelsinger’s PCRA counsel nor counsel for the Commonwealth,

however, elicited any testimony or other evidence as to whether the choice not to request jury

instructions was a strategic decision based on the overarching theory of self-defense or how the

failure to request the jury instructions would have harmed that strategy. See generally (id. at

172–89). Accordingly, because Gelsinger failed to develop the state court record on these

claims, the Court cannot conclude that the failure to request jury instructions was harmful to

counsel’s strategy when there is no evidence to establish that point. The Court must presume

that counsel’s actions were based on a reasonable strategy, and “the absence of evidence cannot

overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance.” See Williams, 45 F.4th at 726. Gelsinger’s argument to the contrary

that Respondents have not “offer[ed]” a strategic reason for trial counsel’s failure to request jury

instructions favorable to Gelsinger misapprehends the burden of proof applicable to a petition for

writ of habeas corpus. It is Gelsinger’s burden to establish deficient representation by trial

counsel; it is not respondent’s burden to show that counsel acted reasonably. On a closed state

court record, Gelsinger cannot meet this burden. The Court will accordingly deny Gelsinger’s

first and tenth claims for habeas corpus relief.

Gelsinger’s other ineffective assistance of counsel claims also fail on the closed state

court record.3 Gelsinger asserts ineffective assistance based on trial counsel’s failure to: (1)

impeach Monique Dockens with a prior statement (claim two); (2) request a cautionary jury

instruction concerning the testimony of Dion and Monique Dockens (claim three); (3) request

that Payne-Casiano’s note be suppressed (claim five); (4) request a change of venue (claim six);

(5) object to potential jurors being questioned in front of other potential jurors (claim seven); and

(6) object to the trial court’s instruction on consciousness of guilt (claim nine). (Doc. No. 1.)

3 The Court previously found that Gelsinger’s other claims were moot based on the Court’s

decision to grant a writ of habeas corpus on the first and tenth claims. See (Doc. No. 63 at 25

n.10). Because the Court has now denied relief on those claims, the Court must determine

whether the remaining ineffective assistance of counsel claims can succeed on the closed state

court record before it may determine whether Gelsinger can overcome the procedural default of

the claims based on PCRA counsel’s alleged ineffectiveness. See Gelsinger, 2022 WL 3666228,

at *2 (quoting Williams, 45 F.4th at 724).

The Court must presume, however, that counsel took these actions based on a reasonable trial

strategy. See Williams, 45 F.4th at 726. The state court record is devoid of any evidence as to

how counsel’s allegedly deficient performance harmed counsel’s overarching theory that

Gelsinger acted in self-defense, and the Court cannot grant habeas corpus relief on an ineffective

assistance of counsel claim based on an absence of evidence. See id. Accordingly, the Court

will deny relief on claims two, three, five, six, seven, and nine.

The Court must additionally analyze Gelsinger’s claims that there was insufficient

evidence to convict him of first-degree murder and attempted homicide (claim eight) and that the

trial court violated his rights under the Sixth Amendment by denying his motion for severance

(claim four).4 Unlike Gelsinger’s ineffective assistance of counsel claims, these two claims were

denied on their merits in state court. AEDPA accordingly requires this Court to grant significant

deference to the state court decision denying habeas corpus relief on the claims. See 28 U.S.C. §

2254(d); Dunn, 594 U.S. at 732; Mays, 592 U.S. at 391.

Gelsinger argues that there was insufficient evidence to convict him of first-degree

murder or attempted homicide. The Court must begin its analysis by looking to the substantive

elements of the offenses under state law. See Coleman, 566 U.S. at 655. Under Pennsylvania

law, first-degree murder requires proof “that a human being was unlawfully killed, that the

accused was responsible for the killing, and that the accused acted with a specific intent to kill.”

See Commonwealth v. Pagan, 950 A.2d 270, 278–79 (Pa. 2008) (citing 18 Pa.C.S. § 2502(a),

(d)). “An intentional killing is a ‘killing by means of poison, or by lying in wait, or by any other

kind of willful, deliberate and premeditated killing.’” Id. (quoting 18 Pa.C.S. § 2502(d)). “The

4 As noted above, these claims are no longer moot given that the Court has now determined that

Gelsinger is not entitled to habeas corpus relief on his first and tenth claims.

Commonwealth may prove that a killing was intentional solely through circumstantial evidence.

Moreover, a specific intent to kill may be inferred from the use of a deadly weapon to inflict

injury on a vital part of the body.” Id. (citing Commonwealth v. McCullum, 602 A.2d 13, 322–

23 (1992). To prove an attempt to commit a crime under Pennsylvania law, the Commonwealth

must prove (1) that the defendant had a specific intent to commit the crime and (2) that he took a

substantial step towards completion of the crime. See Commonwealth v. Henley, 474 A.2d

1115, 1118 (Pa. 1984).

The Superior Court considered Gelsinger’s sufficiency of evidence argument on its

merits and concluded that there was sufficient evidence to convict him of first-degree murder and

attempted homicide. The Superior Court noted that there was testimony in the record that

Gelsinger had fired his gun at Baxter three times from the car in which he was sitting, and that

Baxter had not drawn a weapon or otherwise taken any aggressive actions towards the car at the

time Gelsinger fired the shots. See Gelsinger, 2016 WL 1221444, at *7.

This Court must defer to the state court’s sufficiency of evidence ruling if “any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

See Jackson, 443 U.S. at 319 (emphasis in original). Here, there was clearly sufficient evidence

for a finder of fact to convict Gelsinger. Eyewitness testimony from the victim’s father was “a

hundred and fifty percent” certain that Gelsinger had fired the first shots, and both the victim’s

father and the victim’s sister testified that Baxter had not pointed his gun at Gelsinger or

otherwise moved aggressively towards Gelsinger prior to Gelsinger shooting. See Gelsinger,

2016 WL 1221444, at *6. Furthermore, Gelsinger himself testified that it was the bullets fired

from his gun that killed the victim. See id. at *4. Although Gelsinger testified that Baxter shot

first and that killing the victim was an “accident,” see id., the jury was free to credit the contrary

testimony of the victim’s father and sister that Gelsinger had shot first and appeared to be the

aggressor when he and Baxter were firing their guns. Furthermore, as the Superior Court noted,

it is of no moment that Gelsinger intended to kill Baxter when he killed the victim because the

transferred intent doctrine recognizes that “the intent to murder may be transferred where the

person actually killed is not the intended victim.” See id. at *7 n.10 (quoting Commonwealth v.

Jones, 912 A.2d 268, 279 (Pa. 2006)). Thus, the Court will deny habeas corpus relief with

respect to the sufficiency of evidence claim (claim eight).

Finally, Gelsinger argues that the trial court’s denial of his motion to sever his trial from

Payne-Casiano’s trial violates his Sixth Amendment right to confront witnesses against him

(claim four). (Doc. No. 1 at 17.) This argument is based on the admission of a handwritten note

given by Payne-Casiano to another inmate in Dauphin County Prison, James Moffitt, which

implored Moffitt to “Get at Moe see what she gone say at my bro trial, try convince her to say

bull shot first.” See Gelsinger, 2016 WL 1221444, at *1 (all errors in original note). Moffitt

testified that Payne-Casiano had given him the note while they were incarcerated together

because Payne-Casiano wanted Moffitt “to do some things for him.” See id. at *4. Prior to

publishing the note to the jury, the trial court gave a cautionary instruction that it could only

consider the note as evidence against Payne-Casiano and not against Gelsinger. See id.

Gelsinger argues that admitting this note into evidence without severing his trial from Payne-

Casiano’s trial violates his rights under the Confrontation Clause pursuant to Bruton, 391 U.S. at

12, and its progeny. (Doc. No. 1 at 17.)

The Superior Court considered Geisinger’s severance argument and denied it on its

merits. The Superior Court noted that the trial court had given a cautionary instruction to the

jury not to consider the note as evidence against Gelsinger. See Gelsinger, 2016 WL 1221444, at

*9. The Superior Court further noted that the case did not “present a classic Bruton issue”

because the note was not “a confession by Payne-Casiano offered for the truth of the matter

asserted” and did not “directly and powerfully implicate [Gelsinger] in the crime.” See id. The

Superior Court additionally stated that the note was not an “assertion,” because it did not

affirmatively state that Gelsinger was the one who shot first but rather simply tried to “convince

a witness to testify in a manner favorable to [Gelsinger’s] defense.” See id.

The Superior Court’s conclusion that the trial court’s jury instruction was sufficient to

cure any prejudice to Gelsinger was reasonable and was not contrary to clearly established

federal law. As the Superior Court noted, Payne-Casiano’s note did not directly implicate

Gelsinger in the crime, but only did so inferentially. See id. The United States Supreme Court

has held that jury instructions may be sufficient to cure the prejudice caused to a defendant by

the introduction of such inferentially incriminating statements. See Richardson, 481 U.S. at 208.

The Superior Court found that the jury instruction was sufficient in this case considering the

content of the note and the other circumstances surrounding its admission into evidence. See

Gelsinger, 2016 WL 1221444, at *9. This Court must defer to the Superior Court’s reasonable

conclusion and cannot substitute its own judgment as to whether severance was warranted. See,

e.g., Dunn, 594 U.S. at 732. Accordingly, the Court will deny habeas corpus relief with respect

to Gelsinger’s severance claim (claim four).

IV. CONCLUSION

For the foregoing reasons, the Court will deny Gelsinger’s petition for writ of habeas

corpus with prejudice. A certificate of appealability will not issue because no reasonable jurist

would disagree with this ruling or conclude that the issues presented are adequate to deserve

encouragement to proceed further. See Buck v. Davis, 580 U.S. 100, 115 (2017) (citing Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003)). An appropriate Order follows.

s/ Yvette Kane _

Yvette Kane, District Judge

United States District Court

Middle District of Pennsylvania

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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