# Varner v. Houser

> District Court, M.D. Pennsylvania · June 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10414832

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** June 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10414832

## How later opinions describe it (automated extraction)

- explaining that, “[b]efore seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1
- explaining that, under the procedural default doctrine, a federal habeas court “will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule” (listing cases)
- stating that “[u]nless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CARL LEONARD VARNER, :
Petitioner :
: No. 1:21-cv-00908
v. :
: (Judge Kane)
MORRIS V. HOUSER, :
SUPERINTENDENT, et al., :
Respondents :

MEMORANDUM

Petitioner Carl Leonard Varner (“Petitioner”), a state prisoner in the custody of the
Pennsylvania Department of Corrections, commenced the above-captioned action by filing a pro
se petition for a writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254 (“Section
2254”). (Doc. Nos. 1, 1-1.) He asserts eight (8) claims for the ineffective assistance of trial
counsel in violation of the Sixth Amendment to the United States Constitution. (Id.) In addition,
he asserts a final claim under the cumulative error doctrine, arguing that trial counsel’s
performance was so deficient on those individual claims that, together, they can be aggregated to
demonstrate that his defense at trial was prejudiced by such alleged deficiencies. (Id.) For the
reasons set forth below, the Court finds that Petitioner is not entitled to the extraordinary relief
that he seeks and, thus, the Court will deny his Section 2254 petition and direct the Clerk of
Court to close this case.
I. BACKGROUND
A. Petitioner’s State Court Proceedings
The Honorable Judge Carole Van Horn of the Court of Common Pleas of Franklin
County, Pennsylvania presided over Petitioner’s jury trial, which commenced on December 8,

2014, and concluded on December 17, 2014. (Doc. Nos. 16-1 at 1; 16-6 at 1.) Ultimately, the
jury found Petitioner guilty of first-degree murder and twenty-five (25) associated counts,
including robbery, burglary, conspiracy, kidnapping to facilitate a felony, kidnapping to commit
burglary, and unlawful restraint (serious bodily injury). (Doc. Nos. 1-1 at 13; 16-6 at 45–46.)
As explained by the Pennsylvania Superior Court (“Superior Court”), these counts stemmed
from an incident that occurred on October 22, 2012, in Chambersburg, Pennsylvania:
During the evening of October 22, 2012, two men forced their way into a
residence in Chambersburg by brandishing firearms. This residence was home
to at least eight men, six of whom were present at the time. None of those present
in the home at the time of the break-in spoke English.

After breaking in, the two assailants demanded to see “El Gallo,” meaning “the
rooster.” Finding no satisfaction from the victims’ responses, the two men
separated the victims into different bedrooms in the home. Both assailants
proceeded to rob the victims. One assailant, later identified as Jason Shauf
[(“Shauf”)], fired a shotgun into the ceiling when his demands to see “El Gallo”
were not met. The other assailant, [(later identified as Petitioner),] after robbing
Hugo Olguin and Augustin Marquez, shot Olguin in the neck with .22 caliber
revolver, ultimately resulting in Olguin’s death.

After an investigation, police arrested Shauf and [Petitioner]. Pursuant to a
search warrant, police found a .22 revolver and a .410 shotgun in the basement
of [Petitioner’s] residence.

At trial, several of the victims identified [Petitioner] as the man who shot Olguin,
as did Shauf.

See Commonwealth v. Varner, No. 208 MDA 2015, 2016 WL 1657475, at *1 (Pa. Super. Ct.
Apr. 26, 2016).
Notably, while Petitioner admits that, on October 22, 2012, he had been drinking with
Shauf during the day, he has maintained throughout the course of his legal proceedings that he
did not accompany Shauf to the Chambersburg residence later that evening. (Doc. No. 1-1 at
13.) He claims that he “was actually drunk and under the influence of elicit [sic] drugs[,]” which

caused him to “pass-out” on a couch at Shauf’s residence. (Id.)
Petitioner was sentenced on January 7, 2015, to life imprisonment without the possibility
of parole, as well as a consecutive term of forty-four (44) to eighty-eight (88) years in prison
(Doc. Nos. 1 ¶¶ 2–3; 16 ¶¶ 2–3).1 Petitioner subsequently filed a notice of appeal and a concise
statement of matters complained of on appeal. (Doc. No. 14-1 at 2.) The Superior Court
affirmed Petitioner’s judgment of sentence on April 26, 2016. See Varner, 2016 WL 1657475, at
*3. Petitioner did not seek further review from the Pennsylvania Supreme Court or the United
States Supreme Court. (Doc. No. 1 at 2–3.)
Petitioner subsequently moved to dismiss court-appointed counsel. (Doc. No. 14-1 at 3,
42.) Following a hearing, the trial court granted Petitioner’s motion and dismissed counsel. (Id.)

On April 25, 2017, Petitioner filed a pro se petition pursuant to Pennsylvania’s Post Conviction
Collateral Relief Act (“PCRA”). (Id.) The trial court appointed counsel to assist Petitioner with
his PCRA proceedings, but on July 10, 2017, Petitioner filed a pro se amended petition. (Id.)
Petitioner then filed two (2) motions seeking an extension of time in which to file a supplemental
PCRA petition, both of which were granted by the trial court. (Id.) On September 25, 2017,
Petitioner filed a pro se memorandum in support of his PCRA claims. (Id. at 3.) However, on
December 29, 2017, Petitioner filed, through counsel, a notice stating that he would not be filing

1 The jury also convicted Shauf, Petitioner’s co-defendant, on twenty-six (26) counts, including
second-degree murder. (Doc. No. 16-6 at 46–47.)
a supplemental PCRA petition and, instead, he requested that the trial court incorporate his pro
se amended petition that he filed on July 10, 2017. (Id. at 3, 42 n.3.)
On April 2, 2018, and July 19, 2018, the trial court held hearings on Petitioner’s PCRA
claims. (Id. at 3, 42–43.) Particularly relevant here, a number of Petitioner’s PCRA claims are

the same claims that he asserts, here, in his Section 2254 petition. More specifically, those
claims are that his trial counsel were ineffective for failing to: call Jose Espinosa as a witness at
trial; challenge the affidavit of probable case underlying the application for the warrant to search
his residence; pursue a witness identification statement from the crime scene that the perpetrators
were two “black males[;]” challenge the false timeline identification testimony of two (2)
witnesses at trial; comply with state procedural requirements for notice of alibi defense and to
request an alibi instruction; object to the prosecution’s presentation of inadmissible testimony of
Petitioner’s other crimes, prior bad acts, and mental health issues; ensure Petitioner’s right to a
fair and impartial jury by failing to object to the seating of a juror; and object to the prosecutor’s
improper and prejudicial remarks during closing argument. See, e.g., (Doc. No. 41-1 at 4–97).

As will be discussed more fully below, Petitioner did not assert an additional PCRA claim that
trial counsel were ineffective for failing to call Molly Schooly (“Ms. Schooly”), Shauf’s
girlfriend, as a witness at trial. See (id.).
On April 25, 2019, the trial court denied Petitioner’s PCRA claims. (Id. at 39, 43.)
Petitioner filed a timely notice of appeal, as well as an extension of time to file his concise
statement of errors complained of on appeal, which the Superior Court granted. (Id. at 43.) On
June 28, 2019, counsel filed a motion to withdraw, and Petitioner subsequently filed a motion to
dismiss counsel so that he could proceed pro se. (Id.) Following a hearing, which included a full
colloquy regarding Petitioner’s right to counsel, the Superior Court allowed Petitioner to proceed
without counsel in his collateral appeal. (Id.) On July 5, 2019, Petitioner filed his concise
statement of errors complained of on appeal, as well as an amended pro se statement on
September 9, 2019. (Id.) Nine (9) out of Petitioner’s ten (10) PCRA claims alleged ineffective
assistance of counsel. (Id. at 43–44, 45.)

Thereafter, on July 6, 2020, the Superior Court affirmed the trial court’s order denying
Petitioner’s request for PCRA relief. (Id. at 41–56.) The Pennsylvania Supreme Court denied
Petitioner’s allowance of appeal on May 10, 2021. See Commonwealth v. Varner, 253 A.3d
214, 215 (Pa. 2021).
B. Petitioner’s Federal Habeas Proceedings
On May 13, 2021,2 Petitioner filed his Section 2254 petition, along with a supporting
memorandum of law and various exhibits. (Doc. Nos. 1 through 1-2.) By Administrative Order
dated May 21, 2021, Petitioner was advised, in accordance with Mason v. Meyers, 208 F.3d 414
(3d Cir. 2000), that he could have his Section 2254 petition ruled on as filed or he could
withdraw his petition and file one all-inclusive Section 2254 petition within the one-year

statutory period prescribed by the Antiterrorism and Effective Death Penalty Act, Pub.L. No.
104-132, 110 Stat. 1214 (Apr. 24, 1996). (Doc. No. 5.) Along with the Administrative Order,
Petitioner was also provided a Notice of Election form. (Id. at 4.) He was directed to complete
and file that form within forty-five (45) days, notifying the Court as to how he wished to proceed
in this action. (Id. at 3.) The Administrative Order notified Petitioner that, if he did not

2 Here, Petitioner included a declaration that he placed his petition in the prison mailing system
on May 13, 2021. (Doc. No. 1 at 15.) As such, the Court uses May 13, 2021, as the petition’s
filing date. See Pabon v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011) (providing that “[t]he
federal ‘prisoner mailbox rule’ provides that a document is deemed filed on the date it is given to
prison officials for mailing” (citing Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998))).
complete and return the Notice of Election form within forty-five (45) days, the Court would rule
on his Section 2254 petition as filed. (Id.)
On June 1, 2021, the Administrative Order was returned to the Court as undeliverable
because it did not include the control number. (Doc. No. 6.) That same day, the Administrative

Order was resent to Petitioner. (Id.) After forty-five (45) days passed from the date on which
the Administrative Order was resent to Petitioner, the Court issued an Order stating that it would
rule on his Section 2254 petition as filed. (Doc. No. 8.) In addition, the Court directed service of
the petition on Morris L. Houser, as well as the Attorney General of the Commonwealth of
Pennsylvania and the District Attorney of Franklin County, Pennsylvania. (Id.) Respondents
were directed to file an answer, motion, or other response to the allegations in the petition within
twenty (20) days. (Id.)
After receiving two (2) extensions of time (Doc. Nos. 10 through 13), Respondents filed,
on November 5, 2021, a response and supporting exhibits. (Doc. Nos. 14, 14-1.) On November
15, 2021, the Court directed Respondents to mail a new complete copy of their response and

exhibits to Petitioner at the appropriate address—i.e., the requisite Smart Communications
address in St. Petersburg, Florida. (Doc. No. 15 at 2; id. at 2 n.2 (noting that Respondents shall
also include copies of the transcripts from Petitioner’s jury trial and PCRA proceedings).) In
accordance with the Court’s Order, Respondents filed a new response, attaching thereto copies of
his underlying transcripts. (Doc. No. 16.) In response, Petitioner filed motions seeking an
extension of time in which to file a traverse, as well as a motion to exceed the page limitation for
his traverse. (Doc. Nos. 18, 20, 22.) The Court granted his motions (Doc. Nos. 19, 23), and, on
February 7, 2022, Petitioner filed his traverse (Doc. No. 24).
On March 30, 2022, the Court, after conducting a thorough review of the matter, issued
an Order directing Respondents to submit additional documentation from the underlying state
court proceedings. (Doc. No. 26.) As reflected by the Court’s docket, Respondents did not
timely submit such documentation, despite filing an extension of time in which to do so. (Doc.

Nos. 27, 28.) As a result, on June 28, 2022, Petitioner filed a motion for civil contempt, along
with a supporting brief, based upon Respondents’ failure to comply with the Court’s March 30,
2022 Order. (Doc. Nos. 29, 30.) In addition, Petitioner also filed a motion seeking leave to
expand the record, along with a supporting brief and corresponding exhibits. (Doc. Nos. 31, 32.)
The Court subsequently granted Petitioner’s motion to expand the record to the extent
that he sought to make the documents he attached to his motion a part of the Court’s record.
(Doc. No. 33 (deeming Doc. Nos. 31-1 through 31-7 a part of the record in this matter).) In
addition, the Court, inter alia, directed Respondents to show cause why sanctions should not be
imposed for failure to comply with the Court’s prior Orders—that is, for failure to file the
documents as previously directed by the Court. (Doc. No. 34.) The Court further directed

Respondents to file those documents by January 26, 2023. (Id.)
In response to the Court’s directives, Respondent District Attorney of Franklin County
filed an answer, representing to the Court, inter alia, that the previously ordered documents
would be filed with the Court no later than January 26, 2023. (Doc. No. 36.) As a result, the
Court denied Petitioner’s motion for civil contempt (Doc. No. 29) without prejudice to renewal
of the same should Respondent District Attorney of Franklin County fail to timely file such
documents or seek a reasonable extension of time in which to do so (Doc. No. 38). As reflected
by the Court’s docket, Respondents timely filed the various state court documents. (Doc. Nos.
41, 42.) Petitioner subsequently filed a letter addressing those documents. (Doc. No. 43.) As
such, Petitioner’s Section 2254 petition (Doc. No. 1) is ripe for the Court’s disposition.
II. LEGAL STANDARD
AEDPA, as codified in statute, provides the legal standard of review for a habeas corpus

petition brought by a person held in custody pursuant to a state-court judgment. See generally
Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. No. 104–132, 110
Stat. 1214, § 104 (codified in relevant part at 28 U.S.C. § 2254). Section 2254 limits “the power
of a federal court to grant an application for a writ of habeas corpus on behalf of a state
prisoner.” See Cullen v. Pinholster, 563 U.S. 170, 181 (2011). More specifically, it provides
that a federal court “shall not” grant an application for a writ of habeas corpus 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.

See 28 U.S.C. § 2254(d). Thus, in accordance with the plain language of Section 2254(d), a writ
of habeas corpus may be granted only under three (3) separate clauses—i.e., (1) the “contrary to”
clause; (2) the “unreasonable application” clause; and (3) the “unreasonable determination” clause.
See id.
Under the “contrary to” clause of Section 2254(d)(1), a federal court may grant the writ
“‘if the state court arrives at a conclusion opposite to that reached by [the United States 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.’” See Werts v. Vaughn, 228 F.3d 178,
196 (3d Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 362, 412–13 (2000)); Penry v.
Johnson, 532 U.S. 782, 792 (2001) (stating that “[a] state court decision will be ‘contrary to’ our
clearly established precedent if the state court either applies a rule that contradicts the governing
law set forth in our cases, or confronts a set of facts that are materially indistinguishable from a
decision of this Court and nevertheless arrives at a result different from our precedent” (citation

and some internal quotation marks omitted)).
Under the “unreasonable application” clause of Section 2254(d)(1), a habeas petitioner
“must persuade a federal court that no fairminded juris[t] could reach the state court’s conclusion
under [the Supreme Court’s] precedents.” See Brown v. Davenport, 596 U.S. 118, 135 (2022)
(citation and internal quotation marks omitted); see also Keller v. Larkins, 251 F.3d 408, 418 (3d
Cir. 2001) (explaining that a federal court may grant the writ under this clause “‘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 [petitioner’s] case’” (quoting Williams, 529
U.S. at 412–13)).
Finally, under the “unreasonable determination” clause of Section 2254(d)(2), the

standard “is whether the petitioner has demonstrated by clear and convincing evidence . . . that
the state court’s determination of the facts was unreasonable in light of the record.” See
Roundtree v. Balicki, 640 F.3d 530, 537–38 (3d Cir. 2011) (citation, internal citation, and
internal quotation marks omitted). “[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 (citation omitted). However, “it is not enough to show that
reasonable minds reviewing the record might disagree about the finding in question.” See
Brown, 596 U.S. at 135 (citation and internal quotation marks omitted). Rather, Section
2254(d)(2) requires federal courts to accord the state court “substantial deference.” See
Brumfield v. Cain, 576 U.S. 305, 314 (2015).
Additionally, federal courts are required to presume that a state court’s findings of fact
are correct. See 28 U.S.C. § 2254(e)(1) (“Section 2254(e)”) (providing that, in a proceeding

commenced by a petition “for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue made by a State court shall be
presumed to be correct[,]” and the petitioner “shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence”); see also Miller-El v. Cockrell, 537 U.S. 322,
340 (2003) (stating that the clear and convincing standard in Section 2254(e)(1) applies to factual
determinations by state courts, and “a decision adjudicated on the merits in a state court and
based on a factual determination will not be overturned on factual grounds unless objectively
unreasonable in light of the evidence presented in the state-court proceeding, [Section]
2254(d)(2)” (citation omitted)).
However, if the petitioner’s claimed violations of federal law were not adjudicated on the

merits by the state court, and review in federal court is available, then AEDPA’s deferential
standard, set forth in Section 2254(d) does not apply, and the federal court reviews the claim de
novo. See Cone v. Bell, 556 U.S. 449, 472 (2009) (citations omitted); see also Han Tak Lee v.
Glunt, 667 F.3d 397, 403 (3d Cir. 2012) (explaining that, “if the state court did not reach the
merits of the federal claims, then they are reviewed de novo” (citing Cone, 556 U.S. at 472)).
III. DISCUSSION
In his Section 2254 petition, Petitioner asserts eight (8) claims for the ineffective
assistance of counsel in violation of the Sixth Amendment to the United States Constitution.
(Doc. Nos. 1, 1-1.) More specifically, he claims that trial counsel were ineffective for: (1) failing

to make a meritorious pretrial objection challenging the misrepresentations within the affidavit of
probable cause supporting the warrant to search his residence (Doc. Nos. 1 at 6; 1-1 at 21); (2)
failing to call an exculpatory defense witness whose testimony would have rendered a different
verdict at his trial reasonably probable (Doc. Nos. 1 at 7; 1-1 at 25); (3) forfeiting complaints
about pretrial discovery violations or failing to preserve evidence (Doc. Nos. 1 at 9; 1-1 at 30);
(4) failing to adequately impeach two (2) prosecution witnesses (Doc. Nos. 1 at 10; 1-1 at 35);
(5) failing to comply with state procedural requirements for notice of alibi defense and failing to
request an alibi instruction (Doc. No. 1-1 at 40); (6) forfeiting objections to the prosecution’s
presentation of the inadmissible testimony of Petitioner’s other crimes, prior bad acts, and
“mental health stability” (id. at 45); (7) failing to “assure” Petitioner’s right to a fair and

impartial jury (id. at 51); and (8) forfeiting claims of prosecutorial error by failing to object and
request curative admonition where prosecutor purposely made improper and prejudicial remarks
during closing argument (id. at 56). Finally, Petitioner claims that, under the cumulative error
doctrine, trial counsel’s performance was so deficient on all of these individual claims that,
together, these deficiencies can be aggregated to show that they prejudiced Petitioner’s defense
at trial. (Id. at 63.) As for relief, Petitioner requests, inter alia, that the Court issue a writ of
habeas corpus and order that he be released from incarceration unless the State decides to hold a
new trial within ninety (90) days of the date on which the Court grants habeas relief. (Id. at 66.)
In the alternative, Petitioner seeks an evidentiary hearing on his claims of ineffective assistance
of counsel. (Id.)
Although Respondents have filed a response to the petition, they assert the tersest of
arguments—i.e., that Petitioner’s habeas claims were asserted in connection with his PCRA

proceedings before the Court of Common Pleas of Franklin County and on appeal to the Superior
Court and that, because these claims were ultimately found to be without merit based upon “the
applicable law and/or trial counsels’ [sic] strategy at trial” (Doc. No. 16 at 4), this Court should
affirm the judgment of the state court and deny Petitioner’s four (4) grounds for habeas relief (id.
at 6). While Respondents are under the impression that Petitioner asserts only four (4) grounds
for habeas relief in this matter (Doc. No. 16 at 4), Petitioner, as set forth above, has asserted nine
(9) grounds for relief (Doc. Nos. 1, 1-1). Much to the Court’s dismay, Respondents have not
addressed a single one of these nine (9) grounds for relief in any meaningful way. Nevertheless,
the Court has undertaken a thorough review of the voluminous state court record in this matter.
For the reasons discussed below, the Court will deny Petitioner the extraordinary remedy of the

federal writ of habeas corpus.
A. Standard for Ineffective Assistance of Counsel Claims
The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the [a]ssistance of [c]ounsel for his
defence.” See U.S. Const. amend VI. However, “[t]hat a person who happens to be a lawyer is
present at trial alongside the accused . . . is not enough to satisfy [this] constitutional command.”
See Strickland v. Washington, 466 U.S. 668, 685 (1984) (“Strickland”). Rather, “[t]he Sixth
Amendment recognizes the right to the assistance of counsel because it envisions counsel’s
playing a role that is critical to the ability of the adversarial system to produce just results.” See
id. For that reason, the Supreme Court “has recognized that ‘the right to counsel is the right to
the effective assistance of counsel.’” See id. at 686 (quoting McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)).
To show that a petitioner was denied the effective assistance of counsel, he must satisfy a

two (2)-prong standard, as set forth by the Supreme Court in Strickland. Under the first prong of
the Strickland standard, a petitioner must show that “counsel’s performance was deficient.”
See Strickland, 466 U.S. at 687. This requires a showing that “counsel’s representation fell
below an objective standard of reasonableness.” See id. at 687–88; Williams, 529 U.S. at 390–
91. Indeed, “[c]ounsel’s performance is deficient only “when counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” See
McKernan v. Superintendent Smithfield SCI, 849 F.3d 557, 564 (3d Cir. 2017) (quoting
McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 (3d Cir. 2012)). As explained by
the United States Court of Appeals for the Third Circuit (“Third Circuit”), this requires the
“reasonably effective assistance” of counsel:

[Courts] consult no checklist, as no catalog can “satisfactorily take [into]
account . . . the range of legitimate decisions regarding how best to represent a
criminal defendant.” Id. at 688–89[.] That is why [the courts’] review of
counsel’s performance is “highly deferential,” United States v. McCoy, 410 F.3d
124, 135 (3d Cir. 2005), for “it is all too easy for a court” to find a certain act or
omission unreasonable after the defense ultimately proves unsuccessful,
Strickland, 466 U.S. at 689[;] see also Rolan v. Vaughn, 445 F.3d 671, 681–82
(3d Cir. 2006) (“[C]ounsel’s strategic choices will not be second-guessed by
post-hoc determinations that a different trial strategy would have fared better.”).

See Rogers v. Superintendent Greene SCI, 80 F.4th 458, 462 (3d Cir. 2023).

Under the second prong of the Strickland standard, a petitioner must show that counsel’s
“deficient performance prejudiced [his] defense.” See Strickland, 466 U.S. at 687. “Simply
‘show[ing] that the errors had some conceivable effect on the outcome of the proceeding’ is not
enough, as ‘[v]irtually every act or omission of counsel would meet that test.’” Rogers, 80 F.4th
at 464 (quoting Strickland, 466 U.S. at 693). This prong requires a “showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
See id. Thus, the petitioner must show that there is “a reasonable probability that,” if not for

counsel’s errors, “the result of the proceeding would have been different.” See id. at 694. A
reasonable probability, in turn, “is a probability sufficient to undermine confidence in the
outcome.” See id. This “requires a substantial, not just conceivable, likelihood of a different
result.” See Cullen, 563 U.S. at 189 (citation and internal quotation marks omitted).
A habeas petitioner must satisfy both prongs and a failure to do so is fatal to his
Strickland claims. See Strickland, 466 U.S. at 687 (stating that “[u]nless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable”); Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987).
Additionally, a court is permitted to choose which prong of the Strickland standard to apply first,
and a court may reject an ineffective assistance claim on the ground that the petitioner was not

prejudiced without ever addressing whether counsel’s performance was deficient. See
Strickland, 466 U.S. at 697. As explained by the Supreme Court in Strickland:
Although [the Supreme Court has] discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there is no reason for a
court deciding an ineffective assistance claim to approach the inquiry in the same
order or even to address both components of the inquiry if the defendant
makes an insufficient showing on one. In particular, a court need not determine
whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. The object of
an ineffectiveness claim is not to grade counsel’s performance. If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which [the Supreme Court expects] will often be so, that course should be
followed. Courts should strive to ensure that ineffectiveness claims not become
so burdensome to defense counsel that the entire criminal justice system suffers
as a result.
See id.
For purposes of AEDPA, see 28 U.S.C. § 2254(d)(1), the “clearly established Federal
law” as to an ineffective assistance of counsel claim is the two (2)-prong standard established by
Strickland. See Rainey, 603 F.3d at 197 (citation omitted); Cullen, 563 U.S. at 189 (explaining

that “[t]here is no dispute that the clearly established federal law” for an ineffective assistance of
counsel claim under the Sixth Amendment is Strickland). Although the Pennsylvania Supreme
Court uses slightly different language than that of the United States Supreme Court to address
ineffective assistance of counsel claims, the Third Circuit has ruled that Pennsylvania’s standard
is consistent with the federal standard set forth in Strickland. See Werts, 228 F.3d at 202–04
(holding that a Pennsylvania state court applying Pennsylvania’s ineffective assistance of
counsel standard did not contradict Strickland); Jacobs v. Horn, 395 F.3d 92, 106 n.9 (3d Cir.
2005) (citing Werts, 228 F.3d at 204 and noting that the Third Circuit has “previously ruled that
Pennsylvania’s test for assessing ineffective assistance of counsel claims is not contrary to
Strickland”)). And, here, the record establishes that the state courts applied Pennsylvania’s

standard to Petitioner’s PCRA claims of ineffective assistance of counsel. See (Doc. No. 14-1 at
8 (containing trial court’s decision); id. at 45 (containing Superior Court’s decision)).
Finally, it bears emphasis that “[s]urmounting Strickland’s high bar is never an easy
task,” see Padilla v. Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s
application of Strickland was unreasonable under [Section] 2254(d) is all the more difficult.”
See Harrington v. Richter, 562 U.S. 86, 105 (2011). Accordingly, when the state court has
decided an ineffective assistance of counsel 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.’”
See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.
465, 473 (2007)). Further, “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.”
See id. (citation omitted). This has been referred to by the Supreme Court as “‘doubly

deferential.’” See, e.g., Cullen, 563 U.S. at 190 (explaining that “[w]e take a highly deferential
look at counsel’s performance . . . through the deferential lens of Section 2254(d)” (citation,
internal citation, and internal quotation marks omitted)). That said, where a petitioner’s claimed
violations of federal law were not adjudicated on the merits by the state courts, AEDPA’s
deferential standard, see 28 U.S.C. § 2254(d), does not apply, and the petitioner’s claims are
reviewed de novo by this Court. See Cone, 556 U.S. at 472 (citations omitted); Han Tak Lee,
667 F.3d at 40.
B. Petitioner’s Ineffective Assistance of Counsel Claims
As set forth above, Petitioner contends that his criminal convictions were obtained, and
his sentence was imposed, in violation of his right to the effective assistance of counsel under the

Sixth Amendment to the United States Constitution. (Doc. Nos. 1, 1-1.) In support of this
contention, he asserts eight (8) grounds for relief in his Section 2254 petition and accompanying
memorandum of law, alleging the ineffective assistance of his trial counsel, namely, Michael
Palermo, Esquire (“Attorney Palermo”) and Eric Weisbrod, Esquire (“Attorney Weisbrod”).
(Doc. Nos. 1-1 at 13; 16-7 at 35.) The Court addresses Petitioner’s eight (8) grounds for relief in
turn.
1. Ground One

In Ground One, Petitioner asserts that his trial counsel were ineffective in failing to
challenge alleged “misrepresentations” contained in the affidavit of probable cause supporting
the warrant to search his residence. (Doc. No. 1 at 6.) In support, Petitioner avers that
investigators from the Chambersburg Police Department intentionally misrepresented in its
application for a search warrant that Shauf, his co-defendant, had stated during an interview that
Petitioner possessed firearms and shot the victim at the Chambersburg residence when—
Petitioner argues—Shauf never stated this during his interview. (Doc. No. 1-1 at 12, 22.)
The affiant’s probable cause statement supporting the application for the warrant to
search Petitioner’s residence explicitly states, in relevant part, as follows:
On 10-23-2012 [Shauf] was interviewed at the Chambersburg [PD]. During this
interview[,] Shauf admitted that he and [Petitioner] had gone to 310 East King
St. on 10-22-2012. Shauf stated that [Petitioner] shot the man in the upstairs of
the residence. Shauf further stated that [Petitioner] had taken the gun(s) with
him that evening.

(Doc. No. 1-2 at 79.) In connection with this statement, Petitioner asserts that the issuing
authority for the search warrant relied upon these alleged misrepresentations and that, without
such alleged misrepresentations, there would have been no grounds for probable cause. (Doc.
No. 1-1 at 22; Doc. No. 1 at 6.) As a result, Petitioner claims that trial counsel should have
sought a “Franks Hearing” but failed to do so. (Id.) Petitioner also claims that counsel’s failure
to do so violated his right to the effective assistance of counsel. (Id.) The Court, however, is
unpersuaded.
As an initial starting point, the Court notes that there is no indication in the state court
record that Petitioner’s trial counsel sought a “Franks Hearing” or that the state courts’ decisions
discussed trial counsel’s failure to do so. See, e.g., (Doc. No. 14-1 at 27 (containing the trial
court’s opinion and order, which does not mention or discuss a “Franks Hearing”) ; id. at 41–56
(containing the Superior Court’s memorandum opinion, which also does not mention or discuss a
“Franks Hearing”)).
However, the state courts addressed Petitioner’s allegation that his trial counsel failed to

challenge the affiant’s statement of probable cause supporting the warrant to search his
residence. More specifically, the trial court (sitting as the PCRA court) concluded as follows:
Defendant claims that trial counsel were ineffective for failing to file a habeas
corpus petition to challenge the affidavit of probable cause underlying the search
warrant and criminal complaint. Attorneys Weisbrod and Palermo testified that
their professional opinion was that a habeas corpus motion would not have been
successful because a preliminary hearing had been held where all the charges
were bound over to the Court of Common Pleas. Testimony also showed that
[Petitioner’s] request to counsel that they file the motion occurred just prior to
the beginning of his trial. This Court finds no merit to the claim that counsel
was ineffective for failing to file a habeas corpus motion with the Court because
counsel’s omission in this case had a reasonable basis to advance Defendant’s
interests.

(Id. at 27.) And, on appeal, the Superior Court affirmed the trial court’s decision, stating:
At the PCRA hearing, [Petitioner’s] trial attorneys testified that they believed a
motion to challenge the affidavit of probable cause would have been
unsuccessful based on the fact that a full preliminary hearing had been held in
the case, after which all charges were bounded over for trial. Under the
circumstances, we agree that any such motion would have been frivolous. See
Commonwealth v. Chamberlain, 30 A.3d 381, 423 (Pa. 2011) (any issue
concerning defect in affidavit of probable cause becomes moot upon district
justice’s finding at preliminary hearing that prima facie case has been
established). Thus, this claim is meritless.

(Doc. No. 14-1 at 46 (internal citation omitted)); see also (Doc. No. 16-8 at 23–25, 59–62
(containing counsel’s testimony from PCRA hearing)).
Thus, under these circumstances, where it is unclear whether AEDPA’s deferential
standard would apply to the state court’s decision on this ineffective assistance claim, see 28
U.S.C. § 2254(d), the Court will bypass the issue and simply conduct a de novo review since
Petitioner is not entitled to habeas relief on this claim under such de novo review. See Hannibal
v. Sec’y Pennsylvania Dep’t of Corr., No. 21-3075, 2024 WL 1422015, at *7 (3d Cir. Apr. 2,
2024) (unpublished) (stating that “when a state court’s rationale is less than clarion, it is
permissible to sidestep AEDPA deference if the claim would fail under de novo review” (citing

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010))). As explained by the United States Supreme
Court:
Courts cannot grant writs of habeas corpus under § 2254 by engaging only in de
novo review when it is unclear whether AEDPA deference applies, § 2254(d).
In those situations, courts must resolve whether AEDPA deference applies,
because if it does, a habeas petitioner may not be entitled to a writ of habeas
corpus under § 2254(d). Courts can, however, deny writs of habeas corpus under
§ 2254 by engaging in de novo review when it is unclear whether AEDPA
deference applies, because a habeas petitioner will not be entitled to a writ of
habeas corpus if his or her claim is rejected on de novo review, see § 2254(a).
See Berghuis, 560 U.S. at 390; see also Knowles, 556 U.S. at 114 (explaining that, “[w]hether
reviewed under the standard of review set forth in § 2254(d)(1) or de novo, [the habeas
petitioner] failed to establish that his counsel’s performance was ineffective . . . ”).
However, the Court notes that, “[e]ven under de novo review, the standard for judging
counsel’s representation is a most deferential one.” See Harrington, 562 U.S. at 105. Indeed,
“[u]nlike a later reviewing court, the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with opposing counsel, and with the
judge. It is all too tempting to second-guess counsel’s assistance after conviction or adverse
sentence.” See id. (citation and internal quotation marks omitted).
Assuming arguendo that trial counsel were objectively unreasonable in failing to move
for a “Franks Hearing” before trial, the Court finds that Petitioner was not prejudiced by trial
counsel’s failure to do so. The United States Supreme Court has expressly recognized the long-
standing “presumption of validity” with respect to affidavits of probable cause supporting search
warrants. See Franks v. Delaware, 438 U.S. 154, 171 (1978) (“Franks”). In Franks, however,
the Supreme Court held that a criminal defendant can, under certain circumstances, dispute the
truthfulness of an affiant’s factual statements in the affidavit of probable cause supporting a
search warrant. See id. at 155–56; see also United States v. Yasuf, 461 F.3d 374, 383 (3d Cir.

2006) (explaining that the Franks Court “created a mechanism to allow a defendant to overcome
the general presumption that an affidavit of probable cause supporting a search warrant is
valid”). In pertinent part, the Supreme Court explained that, where a criminal defendant “makes
a substantial preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant’s request.” See Franks, 438 U.S. at 155–56.
Here, the Court finds that the affiant’s representations in the statement of probable cause
supporting the application for the warrant to search Petitioner’s residence constitute a fair
reading, or reasonable understanding, of the actual statements in Shauf’s interview with the

investigators at the Chambersburg Police Department. In reaching this finding, the Court has not
only reviewed Shauf’s videotaped interview with the investigators on October 23, 2012 (Doc.
No. 42), but has also read the transcript of that interview in its entirety (Doc. No. 31-7). During
that interview, Shauf made statements to the effect that: he was with Petitioner on October 22,
2012 (Doc. No. 31-7 at 4); Petitioner had “beef” with people at 310 East King Street, the
Chambersburg residence in question (id. at 11, 13, 37); Petitioner wanted to go to the residence
to “confront” those people (id. at 39); he and Petitioner went to the residence on October 22,
2012 (id. at 13–14, 37, 43–44); Petitioner had two (2) guns with him when they went into the
residence (id. at 24–25, 40–41, 43); while they were inside the residence, Petitioner went upstairs
with the guns (id. at 45–46, 48–49); he heard gun shots while Petitioner was upstairs with the
guns (id. at 15–16, 21–22, 26–27, 49–52, 60–63); and he admitted that “[Petitioner] fucking
shot” (id. at 65); and he did not know that Petitioner was “going to shoot the guy” (id. at 21); see
also (id. 15, 21, 27, 30, 65).

Accordingly, the Court concludes that the affiant’s representations in the underlying
statement of probable cause supporting the application for the warrant to search Petitioner’s
residence (i.e., that Petitioner took guns into the residence and shot the victim) constitute a fair
reading, or reasonable understanding, of the actual statements that Shauf made to investigators
during his interview with investigators at the Chambersburg Police Department. Stated
differently, the Court discerns no false statement in the affiant’s statement of probable cause. As
a result, the Court cannot conclude that a Franks hearing would have resulted in the suppression
of any evidence obtained from Petitioner’s residence via the search warrant. Accordingly, the
Court will deny Petitioner’s request for habeas relief in Ground One of his petition.
2. Ground Two

In Ground Two of his petition, Petitioner asserts that trial counsel were ineffective in
failing to call two (2) defense witnesses at trial—namely, Jose Espinosa (“Mr. Espinosa”) and
Ms. Schooly. (Doc. No. 1 at 7–9.) In support, Petitioner alleges that Mr. Espinosa would have
discredited the prosecution’s case—i.e., that the witnesses were able to view and accurately
identify the perpetrators. (Id. at 7; Doc. No. 1-1 at 25 (averring that Mr. Espinosa’s testimony
would have addressed “the use of drugs and alcohol” on the evening in question, as well as the
layout of and poor lighting in the Chambersburg residence).) In addition, Petitioner alleges that
Ms. Schooly would have discredited the prosecution’s case that he was physically present at the
Chambersburg residence during the time of the crimes. (Id. at 26 (claiming that Ms. Schooly’s
alibi witness testimony would have been compelling as she lived in the residence “where
Petitioner asserts he was sleeping on the couch in a drug induced and drunken state” on the night
in question).)
a. Mr. Espinosa

With respect to Petitioner’s ineffective assistance claim concerning Mr. Espinosa’s
purported testimony, the Court recounts the state court record. In the trial court’s opinion
denying Petitioner PCRA relief on this claim, the trial court (sitting as the PCRA court) found as
follows:
Through counsel, Defendant claims that the lack of Espinosa’s testimony
“definitely prejudiced Defendant.” Espinosa testified at the PCRA hearing that
he knew the individuals in the house at the time of the incident including the
victim, and was familiar with the layout of the house. Espinosa testified at the
PCRA hearing that he had been present at the home just prior to the incident and
testified to the drug and alcohol use taking place. Defendant claims this
testimony at trial would have been significant to show impairment of the
Commonwealth’s witnesses, thus creating doubt about the veracity and accuracy
of their testimony. Defendant claims that Espinosa’s knowledge of the
conditions in the house would have been significant because he would have
testified to the low light levels in the home, creating even more doubt in the
Commonwealth witnesses’ testimony. Lastly, Espinosa testified at the PCRA
hearing that he had heard statements from the Commonwealth witnesses
indicating they wanted someone held accountable for their friend’s death.

* * * *

The Commonwealth concedes that Espinosa existed and was available, that
counsel was informed of his existence, and that he was prepared to cooperate
and testify at trial. The gravamen of the claim rests on whether the absence of
testimony was so prejudicial to Defendant that it denied him a fair trial.
Defendant claims that Espinosa’s testimony about the Commonwealth’s
witnesses’ drug and alcohol use, the layout and lighting of the scene of the
crimes, and the conversation with the other witnesses after the incident would
have cast enough doubt on the veracity of the Commonwealth witnesses so as to
impact the outcome of the trial. This Court does not agree.

During the trial, the jury heard testimony regarding the use of alcohol and illegal
drugs at the house on the evening of the crime. Trial counsel testified at the
PCRA hearing that Espinosa’s testimony would have been helpful, but only
testimony regarding Espinosa’s observations, meaning the testimony about the
alcohol and drug use. The Court does not believe, however, that cumulative
evidence on this point would have persuaded the jury that the Commonwealth’s
witnesses were unreliable.

Regarding testimony about the lighting and layout of the house, we find that
testimony from Espinosa about the lighting of the inside of the house would not
have swayed the jury and the lack of this evidence was not so prejudicial that it
denied Defendant a fair trial. Lastly, Espinosa’s PCRA hearing testimony about
a conversation he had with witness Gallo would have been inadmissible hearsay
at trial, so this testimony would not have been allowed even if Espinosa had been
called to testify at the trial on the other matters. Trial counsel for Defendant
alluded to this fact at the PCRA hearing when he testified that testimony from
Espinosa about his observations “could have possibly been helpful,” but “not
what he heard, but his observations.” For these reasons, this Court finds that
trial counsel was not ineffective at trial for failing to call . . . Espinosa as a
witness since his testimony would not have impacted the trial outcome.

(Doc. No. 14-1 at 11–12.) On appeal, the Superior Court affirmed the PCRA court’s denial of
this claim, as follows:
When raising a failure to call a potential witness claim, a PCRA petitioner must
establish that:

(1) the witness existed; (2) the witness was available to testify for the defense;
(3) counsel knew of, or should have known of, the existence of the witness; (4)
the witness was willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have denied the defendant a
fair trial.

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).

Attorney Weisbrod testified at the PCRA hearing that his office had prepared a
trial subpoena for Espinosa; however, counsel could not recall why Espinosa did
not testify. Although Espinosa existed, was available to testify, and counsel was
aware of him, Washington, supra, the PCRA court determined that the absence
of Espinosa’s testimony was not so prejudicial so as to deny [Petitioner] a fair
trial. Specifically, the court found that the [sic] Espinosa’s testimony would have
been cumulative of other individuals’ testimony that the occupants of the
Chambersburg residence were drinking heavily and using illegal drugs on the
night of the incident. Because the jury heard evidence of the drug and alcohol
use from other witnesses and any other information [Petitioner] claims Espinosa
would have offered would have been inadmissible hearsay, [Petitioner] was not
prejudiced by the absence of Espinosa’s testimony. Thus, there is no merit to
this claim.
(Id. at 46–47.)
i. Alcohol and Illicit Drugs
As for Mr. Espinosa’s purported testimony concerning the use of alcohol and illicit drugs
at the Chambersburg residence, the basis of the Superior Court’s decision was that this witness’s
testimony would have been cumulative. Having reviewed the state court record, the Court
cannot conclude that the Superior Court’s adjudication on the merits was an unreasonable
application of Strickland or based upon an unreasonable determination of the facts. See 28
U.S.C. § 2254(d). Indeed, witnesses at the Chambersburg residence testified as to the drinking
that occurred on the day in question, and the forensic pathologist testified as to the metabolite of

cocaine found in the victim’s blood. See, e.g., (Doc. Nos. 16-1 at 34; 16-2 at 12, 14; 16-4 at 55–
56). Based upon this testimony, the jury was aware that there was reason to question the
accuracy of the witnesses’ observations of the perpetrators (i.e., Petitioner and his co-defendant).
Because the Court cannot conclude that Mr. Espinosa’s testimony on this point would have
added anything of significance to the other evidence before the jury, Petitioner has not
demonstrated a reasonable probability that the outcome of his trial would have been different had
Mr. Espinosa been called to testify as a witness. See Brown v. Wenerowicz, 663 F.3d 619, 631
(3d Cir. 2011) (concluding that “it was not unreasonable for the . . . Superior Court to conclude
that there was no prejudice under Strickland because the excluded testimony would have been

‘merely cumulative’”); see also Hanson v. Sherrod, 797 F.3d 810, 832 (10th Cir. 2015)
(observing, in the Strickland context, that “[m]any of our cases have refused to find prejudice
when the evidence not presented would have been cumulative of the evidence the jury already
heard” (citing Grant v. Trammell, 727 F.3d 1006, 1022 (10th Cir. 2013) (listing cases)); Garza v.
Stephens, 738 F.3d 669, 680 (5th Cir. 2013) (concluding that the habeas petitioner failed to show
that the state court’s conclusion involved an unreasonable application of Strickland or an
unreasonable determination of the evidence where petitioner’s counsel had elicited the same sort
of information from other witnesses).
ii. Lighting and Layout

As for Mr. Espinosa’s purported testimony concerning the lighting and layout of the
Chambersburg residence, the Court observes that this specific aspect of Mr. Espinosa’s
testimony was addressed only by the PCRA court, and not by the Superior Court. (Doc. No. 14-
1 at 11–12, 46–47.) In other words, the PCRA court’s decision concerning this specific aspect of
Mr. Espinosa’s testimony was left undisturbed on appeal. As a result, the Court reviews the
PCRA court’s decision under AEDPA’s deferential standard set forth in Section 2254(d). See 28
U.S.C. § 2254(d); see also Saranchak v. Sec’y, Pa. Dep’t of Corr., 802 F.3d 579, 597 (3d Cir.
2015) (concluding that “[t]he lack of an express ruling from the Pennsylvania Supreme Court on
the question of prejudice does not negate the PCRA court’s decision that [petitioner] was not
prejudiced[,]” and, therefore, the federal court “must view the PCRA court’s conclusion on that

prong through AEDPA’s lens” (citation and internal quotation marks omitted)); Collins v. Sec’y
of Pennsylvania Dep’t of Corr., 742 F.3d 528, 544–45 (3d Cir. 2014) (stating, as follows: “[w]e
conclude that the broader claim was presented to and adjudicated on the merits by the state
courts, and that the narrower focus of the Pennsylvania Supreme Court on ballistics evidence
does not affect our standard of review”).
The basis of the PCRA court’s decision was that the purported lighting and layout
testimony from Espinosa would not have swayed the jury and that, therefore, the lack of this
evidence at Petitioner’s trial was not so prejudicial that it denied him a fair trial. Having
reviewed the state court record, the Court cannot conclude that the PCRA court’s adjudication on
the merits was an unreasonable application of Strickland or based upon an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d).
Although unclear, Petitioner’s habeas petition appears to challenge the testimony of only
one of the Commonwealth’s witnesses who was present at the Chambersburg residence during

the time of the crimes—i.e., Arturo Rubio Perez (“Mr. Perez”). In support of his challenge,
Petitioner asserts that it would have been a “physical impossibility” for Mr. Perez to have
witnessed “what occurred in the victim’s bathroom from the victim’s bedroom.” (Doc. Nos. 1 at
7; 1-1 at 27 (disputing that Mr. Perez could have “somehow” identified Petitioner who allegedly
was in another room).) Petitioner seems to suggest that Mr. Espinosa’s testimony, concerning
the lighting and layout of the Chambersburg residence, would have refuted Mr. Perez’s
testimony, had Mr. Espinosa been called to testify.
Even assuming arguendo that Petitioner could establish that Mr. Perez did not have the
best “angle[ ] of view” in the Chambersburg residence (Doc. No. 1-1 at 27), Petitioner has not
accounted for additional testimony from the other individuals who were also present at the

Chambersburg residence during the time of the crimes. For instance, the state court record
reflects that the Commonwealth presented witness testimony from Augustin Macias Marquez
(“Mr. Marquez”), who stated, in relevant part, that: Petitioner forced him upstairs and took him
into a bedroom where the victim was located and proceeded to rob them at gunpoint; Petitioner
then forced him and the victim from the bedroom and led them down the hallway, where
Petitioner shot the victim. (Doc. No. 16-1 at 39–40.) Mr. Marquez also stated that he was only
about twelve (12) inches from the victim when Petitioner shot the victim. (Id. (explaining that
the victim was about a foot in front of Mr. Marquez and that Petitioner was close and to the side
of Mr. Marquez).) Finally, Mr. Marquez testified that, after the victim was shot, he “fell” into
the bathroom and “in the bathtub.” (Id. at 39.)
Thus, the jury was presented with additional evidence at trial that another individual at
the Chambersburg residence was in very close proximity to Petitioner when he observed

Petitioner shoot the victim. As a result, even if Petitioner could have presented Mr. Espinosa’s
testimony concerning the lighting and layout of the residence in order to refute Mr. Perez’s
observations on the day in question, the jury would still have been free to believe the eyewitness
testimony of Mr. Marquez. Because of this, it was reasonable for the PCRA court to conclude
that Petitioner cannot show a reasonable probability that the outcome of his trial would have
been different had trial counsel called Mr. Espinosa to testify as a witness at trial.3 The Court
will, therefore, deny Petitioner’s request for habeas relief in Ground Two of his petition
concerning trial counsel’s failure to call Mr. Espinosa as a witness at trial.
b. Ms. Schooly
With respect to Petitioner’s ineffective assistance claim concerning trial counsel’s failure

to call Ms. Schooly as a witness at trial, the Court finds that Petitioner did not present this claim
to the state courts, see, e.g. (Doc. Nos. 41-1 through 41-3), and, thus, did not exhaust this claim
at the state court level before filing his Section 2254 petition in this Court.4 See 28 U.S.C. §

3 The Court notes that, at Petitioner’s PCRA hearing, the trial court (sitting as the PCRA court)
explicitly noted that “[t]here was a lot of testimony in the record about the layout of the home,
the photos of the home[,]” and, from what the court could recall offhand, “there was a diagram
that the police officers did of the layout of the home.” (Doc. Nos. 16-7 at 90); see also (Doc. No.
16-1 at 3, 20–23, 32 (containing the trial transcript, which reflects that numerous photos were
presented at trial, and ultimately entered into evidence, depicting the inside of the Chambersburg
residence)).

4 Petitioner’s pro se PCRA petition, filed on April 25, 2017 (Doc. No. 41-1 at 4–36), pro se
amended PCRA petition, filed on July 10, 2017 (id. at 37–78), and supporting briefs (Doc. Nos.
31-4 at 42–118; 31-5 at 1–104, 106–125) did not assert this claim of ineffective assistance of
2254(b)(1)(A) (explaining that a petition for a writ of habeas corpus, filed “on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted unless it appears that”
the petitioner “exhausted the remedies available in the courts of the State . . . ”); Baldwin v.
Reese, 541 U.S. 27, 29 (2004) (explaining that, “[b]efore seeking a federal writ of habeas corpus,

a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the
State the ‘opportunity to pass upon and correct alleged violations of its prisoners’ federal rights’”
(quoting Duncan v. Henry, 513 U.S. 364, 365 (1995))).
However, if state procedural rules bar the petitioner from seeking further relief in state
courts, “the exhaustion requirement is satisfied because there is ‘an absence of available State
corrective process.’” See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (quoting 28
U.S.C. § 2254(b)). “Even so, this does not mean that a federal court may, without more, proceed
to the merits.” Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see also Martinez v. Ryan,
566 U.S. 1, 9 (2012) (explaining that, under the procedural default doctrine, a federal habeas
court “will not review the merits of claims, including constitutional claims, that a state court

declined to hear because the prisoner failed to abide by a state procedural rule” (listing cases)).
However, this doctrine “is not without exceptions.” See id. at 10. A state prisoner “may
obtain federal review of a defaulted claim by showing cause for the default and prejudice from a
violation of federal law.” See id. (citation omitted); Lines, 208 F.3d at 160. A state prisoner
may also obtain federal review of a defaulted claim by showing that a failure to consider the
claim will result in a “fundamental miscarriage of justice.” See Coleman v. Thompson, 501 U.S.

trial counsel. In addition, neither Petitioner’s concise statement of errors complained of on
appeal, nor amended concise statement of errors complained of appeal, discussed this claim of
ineffective assistance of counsel. (Id. at 81–84, 87–94.) Finally, Petitioner’s brief filed in
support of his appeal to the Superior Court did not raise this claim. (Id. at 99–137.)
722, 750 (1991); see also Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007) (explaining that,
ordinarily, a petitioner must show “actual innocence” in order to satisfy the “fundamental
miscarriage of justice” exception (citation omitted)).
As it is now too late for Petitioner to return to the state courts to exhaust this ineffective

assistance claim, see 42 Pa.C.S. § 9545(b)(1) (containing the PCRA’s one-year statute of
limitations)), the Court concludes that this claim is procedurally defaulted. See Collins, 742 F.3d
at 542 (stating that “[a] claim is procedurally defaulted if the petitioner failed to exhaust that
claim in state court and if state procedures prohibit the petitioner from later presenting the claim
in state court” (citations omitted)). Petitioner, however, has not alleged or shown the sort of
cause and prejudice that is necessary to excuse this procedural default, or alleged or shown that
the failure to consider his instant habeas claim will result in a fundamental miscarriage of justice.
As a result, the merits of Petitioner’s ineffective assistance claim concerning Ms. Schooly’s
purported testimony are not properly subject to this Court’s review. See generally Coleman, 501
U.S. at 749–50 (explaining that a petitioner’s procedurally defaulted federal claims are barred

from habeas review unless the petitioner can demonstrate cause for the default and prejudice as a
result of the alleged violation of federal law, or the failure to review his federal claims will result
in a miscarriage of justice); Martinez, 566 U.S. at 9 (explaining that “[f]ederal 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[,]” and that “[t]hese
rules include the doctrine of procedural default, under which a federal court will not review the
merits of claims, including constitutional claims, that a state court declined to hear because the
prisoner failed to abide by a state procedural rule” (citations omitted)). Accordingly, the Court
will deny Petitioner’s request for habeas relief in Ground Two of his petition concerning trial
counsel’s failure to call Ms. Schooly as a witness at trial.
3. Ground Three
In Ground Three of his petition, Petitioner asserts that his trial counsel were ineffective in

failing to pursue the prosecution’s destruction or failure to preserve evidence concerning a
witness’s identification statement from the scene of the crime. (Doc. No. 1 at 9.) In support,
Petitioner alleges that Chambersburg Police Department Officer Dimoff prepared a police report
(Doc. No. 1-1 at 30–31), which references a witness’s statement that there were two (2)
perpetrators at the scene of the crime and that they were “black” (Doc. No. 1-2 at 85). Petitioner,
who testified that he is “not black” (Doc. No. 16-7 at 51 line 13), has attached Officer Dimoff’s
report (or at least one page of that report) to his Section 2254 petition. It provides in relevant
part as follows:
On the date and time listed, I began responding to the area of E King St and S
Third St for some type of assault. [Officer] Fegan immediately relayed that he
observed a male running south on Harrison Ave. As [Officer] Rodgers and I
began leaving the [Chambersburg PD] parking lot, [Officer] Fegan stopped the
male that was running and we assisted him. After a quick search, the H/M5
mentioned the address of 310 E King St. [Officer] Rodgers and I immediately
responded to that address while [Officer] Fegan detained the H/M and
transported him to this address.

While enroute, [Officer] Bietsch requested medics along with other officers.
When we arrived, there were 4 H/M’s standing outside the front of the residence.
[Sergeant] Clawson entered the residence to assist [Officer] Bietsch while
[Officer] Rodgers and I separated and searched the 4 H/M’s. I then attempted
to gather their information along with any idea of what may have happened. Due
to the language barrier, I was only able to obtain very limited information.
Through broken English and hand gestures, I was able to obtain that a home
invasion robbery may have just occurred and someone may have been shot. The
one H/M (no shirt) stated that there were 2 actors and that they were Nego
(black). I then spoke with another H/M (white printed t-shirt) who made it sound

5 Based upon the record before the Court, including similar reports from other Chambersburg
PD Officers (Doc. No. 1-2 at 90), H/M signifies “Hispanic Male.”
as though he may have been a victim of a robbery. This H/M stated that the 2
actors were blanco (white). Through his gestures and broken English, he stated
that the two Blanco (white) male actors banged on the door before forcing their
way in. The one actor held a gun up to his head and forced him to give him his
money. The actors then went upstairs and he heard a gun shot.

I then went to the crowd of people that had formed at the corner of E King St
and Kennedy St to check for witnesses. Miguel Villalobos immediately stepped
forward. He stated that approximately 20-30 minutes prior to our arrival, he was
driving through the area. He was in a vehicle and at the stop sign on S Third St
waiting to turn east on King St. While there, a tall thin black male know[n] to
him as “Blue” was standing on the corner. He also recalled seeing a silver van
in the parking lot across from him with its reverse lights on. “Blue” then waived
him through the intersection as though he was with the person in the silver van
. . . .

(Doc. No. 1-2 at 84–85 (emphasis in original).)
In connection with Officer Dimoff’s report, Petitioner believes that there must have been
additional statements or police notes/reports about the witness who stated that the “actors” were
two (2) “black” males. (Doc. No. 1-1 at 31.) For that reason, Petitioner asserts that his trial
counsel should have held the prosecution “accountable” for destroying or otherwise failing to
preserve such exculpatory evidence. (Id.; id. at 34 (stating that this evidence exonerates
Petitioner as it “was a cross-racial identification”).) Petitioner further asserts that the
prosecution’s destruction of or failure to preserve this evidence violates the dictates of Brady v.
Maryland, 373 U.S. 83 (1963). (Id. at 32.) Finally, Petitioner asserts that, in an attempt to
conceal the destruction of such exculpatory evidence, this witness statement was later
mischaracterized by both the prosecution and the trial court as “‘two black males in the vicinity,’
when the actual statement[ ] reveal[s] that two black males committed the crime.” (Id. at 31.)
Based upon all of these assertions, Petitioner contends that his trial counsel should have
pursued a number of avenues with respect to the witness’s statement, but that they failed to do
so, thereby violating his right to the effective assistance of counsel. (Id. at 32, 34 (contending
that trial counsel should have: raised this issue before the trial court and sought the production of
this exculpatory evidence; impeached prosecution witness testimony in order to reveal such
exculpatory statements; requested the trial court to admonish the prosecution for failing to
preserve this exculpatory evidence; and sought a jury instruction from the trial court as to this

identification testimony).)
With respect to this ineffective assistance claim, the Superior Court stated in its July 6,
2020 decision, as follows:
[Petitioner] next asserts that trial counsel were ineffective for failing to pursue
witness identification testimony from the crime scene;—specifically a reference
in a police report indicating that two black men were seen in the vicinity of the
crime scene on the night in question. He claims such testimony was material to
his innocence, and that the prosecution withheld this vital information in
violation of Brady[.]

Chambersburg Police Officer Victor Dimoff allegedly prepared a police report
referencing two black men being seen in the vicinity of the crime scene on the
night of the incident. At the PCRA hearing, Attorney Palermo testified that he
believed the officer’s notes had been requested, but they did not exist.
[Petitioner], himself, indicated that the defense had, in fact, filed a motion to
compel the officer’s notes, which was granted . . . . However, Attorney Palermo
testified that Attorney Weisbrod told him that the notes did not exist and,
therefore, could not be provided by the Commonwealth . . . . Attorney Weisbrod
also testified that the defense subpoenaed Officer Dimoff and called him as a
witness at trial . . . . Because counsel filed a motion to compel and subpoenaed
Officer Dimoff to be a witness at [Petitioner’s] trial, the underlying
ineffectiveness claim has no merit . . . . Moreover, because counsel testified that
the notes did not exist, [Petitioner’s] Brady claim is moot.

(Doc. No. 14-1 at 47–48 (internal citations omitted).)
Accordingly, the apparent basis for the Superior Court’s rejection of this ineffective
assistance claim is that trial counsel made reasonable efforts to obtain Officer Dimoff’s notes
that might have revealed the identity of the witness who reported seeing two (2) black men.
Having reviewed the state court record, the Court cannot conclude that the Superior Court’s
adjudication on the merits was an unreasonable application of Strickland or based upon an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
At the PCRA hearing, Petitioner conceded that his trial counsel had filed a motion to
compel the relevant notes (Doc. No. 16-7 at 50), that the motion was granted, and that the

Commonwealth was directed to produce the relevant notes, to the extent that they existed (id. at
50–51). Also at the PCRA hearing, Petitioner’s counsel stated that it was their understanding
that the Commonwealth did not produce any such notes because they did not exist. More
specifically, Attorney Palmero testified at the hearing as follows:
Q So you were informed that the police department was not in
possession anymore of notes to provide to you or Attorney
Weisbrod?

A The physical pen-on-paper notes, correct, did not exist.

Q [Petitioner’s] impression was that the District Attorney’s Office
said no, you’re not entitled to them. Did that ever occur?

A I don’t know what his impression was. That was my impression[,]
they didn’t exist. That might have been because Mr. Weisbrod is
local to Chambersburg. That’s something maybe he would have
been boots on the ground and inquiring of the officers or his staff
would have.

(Doc. No. 16-8 at 29–30.)6 In addition, Attorney Weisbrod similarly testified at the PCRA
hearing, as follows:

6 In Attorney Palmero’s experience with these types of requests for the production of police
notes, he explained that:

A So I do have an omnibus motion where I ask for [police] notes. A lot of
times the answer at the local level is they don’t exist anymore because
those notes get transcribed in a report and the notes are destroyed.

(Doc. No. 16-8 at 29.)
Q [Y]ou did file a motion to compel. And that was granted. Police
notes were to be handed over, if any. Do you recall discussion
you had with the DA’s Office about those police notes?

A That they didn’t exist was the discussion.
Q So your understanding was that those notes did not exist?
A That is my understanding.
(Id. at 64.)
Attorney Weisbord also testified, however, that he would have expected such police notes
to exist and, thus, he and Attorney Palmero subpoenaed Officer Dimoff to testify at Petitioner’s
trial.7 (Id. at 65.) At trial, Officer Dimoff was questioned about his report, and he testified, on
two (2) separate occasions, that one of the witnesses he had spoken with at the scene of the crime
thought that there were two (2) “black males” that had gone to the Chambersburg residence on
the evening in question. (Doc. No. 16-5 at 4, 5.) However, Officer Dimoff also testified that
another one of the witnesses he had spoken with stated that these individuals were “white.” (Id.
at 5.)
Thus, while the Court understands Petitioner’s argument (i.e., that Officer Dimoff’s
police report references a witness statement that the alleged perpetrators were, essentially, a
different race from Petitioner and that Petitioner was never provided the identity of this witness),
Officer Dimoff’s report specifically explains that he was able to obtain only “very limited

7 In Attorney Weisbord’s experience with these types of requests for the production of police
notes, he explained that:

A In the normal course of police work, oftentimes, they will keep those notes
and keep them until after trial even though they do supplemental reports
oftentimes. So I would expect—I would expect they exist.

(Doc. No. 16-8 at 65.)
information” from such witnesses based upon the “broken English.” (Doc. No. 1-2 at 85.) In
addition, Officer Dimoff’s same police report references a witness statement that the two (2)
perpetrators were “white.” (Id.) And, finally, while the identity of this witness referenced in
Officer Dimoff’s report is unknown, the state court record, upon which the Superior Court relied,

reflects that witnesses who were physically present inside the subject residence at the time of the
crimes testified that the ethnicity of the two (2) perpetrators was “white.” See, e.g., (Doc. Nos.
16-1 at 40; 16-2 at 10). Accordingly, for all of these reasons, the Court will deny Petitioner’s
request for habeas relief in Ground Three of his petition.
4. Ground Four
In Ground Four of his petition, Petitioner asserts that his trial counsel were ineffective for
failing to adequately impeach two (2) witnesses presented by the Commonwealth—Mr. Perez
and Mr. Marquez. (Doc. No. 1 at 10.) In support, Petitioner alleges that, during his trial, the
testimony of these two (2) witnesses misled the jury to believe that they had identified Petitioner
right after the crime, on October 22, 2012, when they did not actually identify Petitioner until

four (4) days after the crime on October 26, 2012, during a photo array prepared by the police.
(Id.) Petitioner alleges that this photo array contained a picture of him that had previously been
printed in a local newspaper, identifying him as one of the suspects being investigated. (Id.;
Doc. No. 1-1 at 36–37.) Petitioner alleges that, because of this, Mr. Perez and Mr. Marquez were
“tainted” by the media coverage. (Id. at 37.) In addition, Petitioner alleges that, even though his
trial counsel were aware of the misleading testimony elicited by the prosecution at trial, they did
not adequately impeach these witnesses on cross-examination. (Doc. Nos. 1 at 10; 1-1 at 38, 39–
40 (stating that the perjured testimony involved prosecutorial misconduct, that trial counsel had a
duty to correct the perjured testimony, and that this led to corruption of the truth-seeking
function of the trial).)
In support of these allegations, Petitioner points to two (2) police reports, concerning Mr.
Perez and Mr. Marquez. (Id. at 37.) In relevant part, the police report concerning Mr. Perez

provides as follows:
On 10-26-2012 at approx. 0922 hrs [Perez] was shown a photo array which
included a photo of [Petitioner]. [Perez] was provided with the same series of
instructions prior to viewing the array (which included carefully viewing each
photo and that the suspect may or may not be represented within the array).
After approx. 10 seconds [Perez] pointed at the photo of [Petitioner]. He
confirmed that he was confident in identifying [Petitioner] as one of the suspects.
He further stated that [Petitioner] was the suspect who shot the victim.
[Petitioner] wrote his initials “A.R.P.” directly above the photo of [Petitioner]
as confirmation of this identification.

Upon completion of the viewing of the array, [Perez] was asked if he has seen a
photo of [Petitioner] presented by any type of media coverage. [Perez] stated
that he has not. He then confirmed that he recognizes the photo (of [Petitioner])
solely from his interaction with him on the date of the incident.

(Doc. No. 1-2 at 93.) And, the police report concerning Mr. Marquez similarly provides as
follows:
On 10-26-2012 at approx. 1000 hrs [Marquez] was shown a photo array which
included a photo of [Petitioner]. Prior to viewing the array [Marquez] was
advised to carefully view each photo and that the suspect may or may not be
represented within the array. After approx. 4 second [Marquez] pointed at the
photo of [Petitioner] and stated that he was the one who put the gun to his head
and shot his friend. [Marquez] wrote his name “Augustin” above the photo of
[Petitioner] as confirmation of this identification.

Upon completion of the viewing of the photo array, [Marquez] was asked if he
has seen a photo of [Petitioner] presented by any media coverage. [Marquez]
stated that he has seen [Petitioner’s] photo in the newspaper (since the time of
the incident). At this time, [Marquez] confirmed that during the incident he was
in close proximity to suspect #2 (within 6 inches) and clearly saw his face during
the incident. He then stated that his identification of [Petitioner] is based [on]
memory of the incident and not for seeing the picture in the paper.

(Id. at 96.)
Thus, in connection with all of his allegations and these police reports, Petitioner claims
that his trial counsel should have taken the following actions but failed to do so: object to the
perjured testimony; adequately cross-examine these witnesses about their identification of him;
and request an appropriate jury instruction that would discuss the factors to consider when

determining the reliability of eyewitness identification testimony. (Doc. No. 1-1 at 38.) Because
trial counsel failed to take these actions, Petitioner alleges that his right to the effective assistance
of counsel was violated. (Id.)
With respect to this claim, the Superior Court stated in its July 6, 2020 decision, as
follows:
In his next issue, [Petitioner] claims that counsel were ineffective for their failure
to object to the prosecution’s use of false timeline identification testimony.
Specifically, [Petitioner] contends that he was only identified by a photo line-up
that occurred four days after he was charged and not on the same evening of the
crimes as “asserted by the prosecution through witness[es] Augustine Marquez
and Arturo Perez” . . . .

[Petitioner] fails to explain how the fact that witnesses identified him days after
the shooting, as opposed to on the day of the crime, “resulted in prejudice” . . . .
In fact, multiple witnesses, in addition to Marquez and Perez, positively
identified [Petitioner] as the victim’s assailant. Because [Petitioner] cannot
prove that he suffered prejudice as a result of counsel’s alleged action or
inaction, . . . [Petitioner] is not entitled to relief on this claim.

(Doc. No. 14-1 at 49.)
The Superior Court concluded that Petitioner could not show that he was prejudiced by
trial counsel’s inaction with respect to Mr. Perez and Mr. Marquez because other witnesses
positively identified Petitioner as the victim’s assailant. Having reviewed the state court record,
the Court cannot conclude that the Superior Court’s adjudication on the merits was an
unreasonable application of Strickland or based upon an unreasonable determination of the facts.
See 28 U.S.C. § 2254(d).
The testimony of Dianne R. Kelso (“Kelso”), an employee of the Chambersburg Police
Department at the time of the homicide and accompanying crimes, established that, in addition to
Mr. Perez and Mr. Marquez, another witnesses—Genaro Gonzalez Chavez—was shown the
same photo array on October 26, 2012, and positively identified Petitioner. (Doc. No. 16-1 at

25–26, 28, 29.) In light of this evidence, it was reasonable for the Superior Court to find no
reasonable probability that the result of Petitioner’s trial would have been different had trial
counsel taken action to ensure that the jury knew that Mr. Perez and Mr. Marquez had not made
their identifications until four (4) days after the crime on October 26, 2012.8 Accordingly, the
Court will deny Petitioner’s request for habeas relief in Ground Four of his petition.
5. Ground Five
In Ground Five of his petition, Petitioner asserts that trial counsel were ineffective for
failing to comply with the state procedural requirement for filing a notice of alibi defense and for
failing to request an alibi instruction. (Doc. No. 1-1 at 40.) In support of his alibi defense,
Petitioner contends that he was “‘[p]assed out’ on Shauf’s couch at the time the crime[s]

occurred.” (Id.) Petitioner argues, however, that counsel failed to file the requisite notice for his
alibi defense and that this failure is why an inadequate investigation was conducted on his “alibi
sources” and why trial counsel did not “call, secure, or subpoena” Ms. Schooly, who had placed

8 While not explicitly addressed by the Superior Court, the Court notes that the Commonwealth
also presented testimony from Kelso at trial, which acknowledged that there were photos of
Petitioner and his co-defendant in the news at some point between October 22, 2012 (the date of
the crimes), and October 26, 2012 (the date of the subject photo array). (Doc. No. 16-1 at 27
(containing Kelso’s testimony, wherein she confirms the existence of such photos).) Based upon
this testimony, the jury was aware that there was reason to question the veracity of the witnesses’
identifications of Petitioner and his co-defendant. Ultimately, the jury was free to believe all,
some, or none of the witnesses’ testimony. See McMichael v. McMichael, 241 A.3d 582, 590
(Pa. 2020) (explaining that “it is the province of the jury to assess the worth of all testimony
presented, and the jury is free to believe all, some, or none of the witness testimony presented at
trial”).
Petitioner “in her home, and sleeping on her couch after drinking all day with co-defendant
Shauf.” (Id. at 41 (stating that “[Ms.] Schooly was Shauf’s girlfriend during that period of
time”).) In addition, Petitioner alleges that counsel’s failure to file the notice of his alibi defense
was exacerbated by their failure to seek an alibi instruction and to adequately define the

prosecution’s burden of proof. (Id.) In support, Petitioner alleges that his counsel “argued alibi
throughout the . . . proceedings, and then failed to at the very least request an alibi instruction at
the conclusion of the proceedings.” (Id. at 42.) Based upon these omissions, Petitioner claims
that his right to the effective assistance of counsel was violated. (Id. at 44.)
The state court record reflects that the trial court (sitting as the PCRA court) rejected this
claim (Doc. Nos. 41-1 at 32; 41-2 at 77–91), in pertinent part, as follows:
Defendant offered alibi evidence at trial. Witness Eichelberger testified that he
had visited [Shauf’s] residence between 9:30 p.m. and 9:45 p.m., on October 22,
20212. During this visit, he had an interaction with Jason Shauf’s girlfriend
indicating that Defendant was on the ouch inside the residence sleeping:

Q: [District Attorney] The night of the murder, what time, best you can
recall, do you think you saw Carl Varner at Jason Shauf’s house?

A: [Edward Eichelberger] 9:30, quarter to 10. Somewhere around there.
Q: You saw him or you were told he was there.

A: I looked in. She told me. I looked in. It was him.

. . . . In addition, Defendant testified that he spent the evening at [Shauf’s]
residence where he slept on the couch after an evening of heavy drinking, and
then walked directly to his residence on McKinley Street.

An alibi is defined as “a defense that places the defendant at the relevant time at
a different place than the scene involved and so removed therefrom as to render
it impossible for him to be the guilty party.” Com. v. Kolenda, 676 A.2d 1187,
1190 (Pa. 1996). Here, Defendant was entitled to an alibi instruction to alleviate
the danger that the jurors might imperssibly view a failure to prove the defense
as a sign of Defendant’s guilty. See Com.v. Pounds, 417 A.2d 597, 603 (Pa.
1980). Witness Eichelberger’s testimony alone would not have been sufficient
to entitle Defendant to an alibi instruction because he did not testify to
Defendant’s presence at the exact time of the crimes, but Defendant’s testimony
alone is sufficient in the instant matter because he testified to his presence
somewhere other than 310 King Street at the time of the crimes. Kolenda, 676
A.2d at 1190 (“[T]he testimony of the accused may be sufficient in itself to raise
an abili defense and entitle the defendant to an appropriate jury instruction[.]”
There is no minimum threshold quantum of physical separation necessary for a
defense to constitute an alibi, so long as the separation makes it impossible for
the defendant to have committed the crime. Com. v. Roxberry, 602 A.2d 826,
828 (Pa. 1992). This Court finds that an alibi instruction would have been
requested by counsel, so Defendant has satisfied the first prong of Pierce by
showing the claim has arguable merit.

As for the second prong of Pierce, the Court analyzed the record in order to
determine whether trial counsel’s act or omission had a reasonable basis to
advance Defendant’s interests. Pierce, 786 A.2d at 213. During the PCRA
hearing [in April 2018], Attorney Palermo testified that counsel’s strategy was
to present evidence that the Defendant was elsewhere, but to present it as a
general defense, not technically an “alibi defense.” At the PCRA hearing, he
expressed certainty that they had argued at closing that Defendant was elsewhere
when the crimes occurred. At closing, Attorney Palmero had received the
testimony by witness Eichelberger that he had seen Defendant just prior to the
time of the crime. Attorney Palermo also commented on Defendant’s testimony
during close:

“[They] gave [Petitioner] [on his cross examination], like, three
different opportunities to implicate somebody else, to put himself
somewhere else at different times. [Petitioner] didn’t do it. [Petitioner]
could have said, No, Mr. Fogal. 10:15 I was passed out urine soaked
on the couch because I remember it was 10:15 exactly. [Petitioner]
didn’t say that. He didn’t alibi himself. He said, I was passed out. I
don’t keep track of time when I’m passed out. He wouldn’t give him a
time and clear his own name.

. . . . Attorney Weisbrod testified that Attorney Palermo’s testimony was
accurate and that they intended to argue Defendant was at Jason Shauf’s
residence both before and after the crimes, but “that left us exposed as to whether
we could provide where he was at the very moment or moments that these crimes
were alleged ot have occurred . . . [.] This testimony indicates a trial strategy
which sought to minimize any inconsistencies raised in the minds of the jury that
might have come from the inclusion of an alibi instruction to the jury. Attorney
Palermo’s testimony about a “back door alibi defense” indicates a strategy to
introduce evidence from Defendant and witness Eichelberger without
specifically raising an alibi defense.

Defendant cites Mikell claiming that there can be no reasonable basis for counsel
to fail to seek an alibi instruction if there are grounds for such an instruction.
Com. v. Mikell, 729 A.2d 566, 570 – 571. This Court does not agree. Since
Mikell, the Pennsylvania Supreme Court has rejected a lower court ruling stating
that “it is not a reasonable trial strategy to forego an alibi instruction to focus on
another defense.” Com. v. Hawkins, 894 A.2d 716, 731 (Pa. 2006). It held
instead that counsel is only required to have a reasonable basis to not request an
alibi instruction. Id. This Court finds that, although counsel could have
requested an alibi instruction for the jury, counsel’s strategy sought to argue
during closing that Defendant was elsewhere and to minimize the
inconsistencies that may have been highlighted by such an instruction. For these
reasons, the Court finds that Defendant has not demonstrated that counsel lacked
a reasonable basis for not pursing an alibi instruction for the jury, and so
Defendant has not satisfied the second prong of Pierce.

The Court further finds that Defendant did not suffer actual prejudice as a result
of counsel’s decision not to seek an alibi instruction at trial. Although Defendant
testified that he had been sleeping on [Shauf]’s couch at the time of the crimes
and witness Eichelberger testified that he saw Defendant on [Shauf’s] couch just
prior to the crimes at 310 East King Street, there was overwhelming evidence
presented at trial, including eyewitness testimony that placed Defendant at the
scene of the crime . . . .

This Court finds that if counsel for Defendant would have sought an alibi
instruction for the jury, it would not have changed the outcome of the jury trial.
There was overwhelming physical evidence tying [Petitioner] to the crimes at
310 West King Street on October 22, 2012. There were also five witnesses
placing [Petitioner] at the scene of the crimes and one witness who identified
him with the co-defendant just after the crimes had taken place. This Court finds
that an alibi jury instruction would not have changed the outcome of the trial.
For these reasons, the Court finds that counsel was not ineffective for failing to
request an alibi instruction for the jury.

(Doc. No. 14-1 at 17–22.)

On appeal, the Superior Court affirmed the PCRA court’s decision, stating:
Next, [Petitioner] contends that counsel was ineffective for failing to timely file
and serve a notice of alibi defense and seek an alibi instruction.

An alibi is “a defense that places the defendant at the relevant time in a different
place than the scene involved and so removed therefrom as to render it
impossible for him to be the guilty party” . . . . When a defendant intends to offer
an alibi defense at trial, Pa.R.Crim.P. 567 requires the defendant file a notice of
the alibi with the clerk of courts, and serve a copy of the notice and a certificate
of service on the attorney for the Commonwealth. See Pa.R.Crim.P. 567(A).

Here, [Petitioner]’s counsel testified that they employed more of a “backdoor”
or “quasi”-alibi defense at trial, using [Petitioner]’s testimony as well as a
witness’s testimony to place [Petitioner] at Shauf’s residence on the night of the
crime around 9:30-9:45 PM. While counsel never filed a formal notice of alibi
defense or requested an alibi instruction, the jury had the opportunity to consider
the evidence to determine whether [Petitioner] was present at the crime scene
during the relevant time period. However, even though witness Eichelberger
testified that [Petitioner] was sleeping on Shauf’s couch just prior to the time the
crimes were committed, his testimony did not completely eliminate the
possibility that [Petitioner] could have committed the offenses. Under such
circumstances, we do not find counsels’ failure to serve a notice of alibi or seek
an alibi instruction unreasonable, especially where there was overwhelming
evidence, including eyewitness testimony, placing [Petitioner] at the scene of
the crime. See Commonwealth v. Hawkins, 894 A.2d 716, 730 (Pa. 2006) (court
found reasonable basis for failure to seek alibi instruction where counsel
explained that “in his twenty years of experience he had come to the conclusion
that where alibi testimony is weak, or is predicated on the defendant’s testimony
alone, calling attention to that testimony explicitly as alibi evidence disserves
the defendant’s interests”) . . . . This claim of ineffectiveness, therefore, is
meritless.

(Doc. No. 14-1 at 49–50 (footnote and some internal citations omitted).)
The apparent basis for the Superior Court’s rejection of this ineffective assistance claim
is that the failure of Petitioner’s trial counsel to seek a notice of alibi or alibi instruction was not
objectively unreasonable (i.e., did not constitute deficient performance) because there was
overwhelming evidence placing Petitioner at the scene of the crime, and because Petitioner’s
alibi evidence was not excluded by the trial court and, therefore, the jury had the opportunity to
consider the testimony of both Petitioner and Eichelberger to determine whether Petitioner was
present at the crime scene during the relevant period of time without highlighting any
inconsistencies in such testimony by requesting an alibi instruction. Having reviewed the state
court record, and as discussed infra, the Court cannot conclude that the Superior Court’s
adjudication on the merits was an unreasonable application of Strickland or based upon an
unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
a. Alibi Instruction
The Court begins its discussion by addressing the Superior Court’s decision concerning
trial counsel’s failure to request an alibi instruction. The state court record reflects that several
of the Commonwealth’s witnesses, who were at the scene of the crime, identified Petitioner as

the perpetrator who shot the victim, as did Shauf, Petitioner’s co-defendant. See, e.g., (Doc.
Nos. 16-1 at 28; 16-2 at 11–12, 17, 25; 16-3 at 24). In addition, the Commonwealth’s evidence
presented at trial physically tied Petitioner to the scene of the crime—i.e., police found a .22
revolver and .410 shotgun in Petitioner’s residence, both of which were concealed in his
basement (Doc. Nos. 16-3 at 25, 26; 16-4 at 10–11); the .22 revolver was determined to be the
homicide weapon (Doc. Nos. 16-4 at 46; 16-5 at 23, 24); and the police found a .410 shotgun
shell box in Shauf’s truck, which matched the .410 shotgun found in Petitioner’s basement (Doc.
No. 16-4 at 5, 11).
In response to the Commonwealth’s evidence presented at trial, Petitioner’s counsel
presented, inter alia, alibi evidence. Petitioner testified that, on the night of the crimes (October

22, 2012), he spent the evening at Shauf’s residence, after drinking during the day and being on
Oxycodone and Xanax. (Doc. No. 16-5 at 13–16.) Petitioner testified that he fell asleep on the
couch and that, when he woke up, he was “soaking wet” because he had “[u]rinated on
[himself]” as a result of the drinking. (Id. at 16; Doc. No. 1-1 at 13.) He testified that he then
left the residence and walked home (Doc. No. 16-5 at 16), which was about 6:00 a.m. on October
23, 2012 (id. at 21).
In addition to Petitioner’s testimony, Eichelberger testified that, on October 22, 2012, he
visited Shauf’s residence between 9:30 p.m. and 9:45 p.m. and that, although he did not have any
contact with Shauf or Petitioner during this visit, he had an interaction with Shauf’s girlfriend,
“Molly,” whom the Court refers to as Ms. Schooly. (Id. at 6.) Eichelberger testified that he
asked Ms. Schooly to get him cigarettes (id.) and that Ms. Schooly stated that she had to wait for
Shauf to return (id. at 7). Eichelberger testified that he saw Petitioner and that Ms. Schooly
laughed because she thought Petitioner had urinated on himself as a result of being “intoxicated,

drinking.” (Id.) Eichelberger testified that he left the residence, but returned later that evening,
around 11:20 or 11:30 p.m. to see if Ms. Schooly had gotten him the cigarettes. (Id.)
Eichelberger testified that Petitioner was still at the residence at this time. (Id.)
Importantly, however, the state court record reveals that Eichelberger’s testimony did not
eliminate the possibility that Petitioner could have committed the offenses. The Commonwealth
presented Kevin Yearick as a witness, who testified that he saw people running out of 310 East
King Street at approximately 10:00 p.m. on October 22, 2012. (Doc. No. 16-1 at 19.) Because
Eichelberger testified that he saw Petitioner at Shauf’s residence between 9:30 p.m. and 9:45,
and again around 11:20 or 11:30 p.m., there was a period of time for which Petitioner’s
whereabouts were unaccounted.

In addition, during Petitioner’s PCRA proceedings, trial counsel revealed the trial
strategy behind their decision to not request an alibi instruction for the jury:
[Attorney Weisbrod]: I think Mr. Palermo’s testimony is probably fairly
accurate when he characterized [the defense] as a back-door alibi. We were able
to bookend [Petitioner] being at the Shauf residence . . . . But that left us still
exposed as to whether we could prove where he was at the very moment or
moments that these crimes were alleged to have occurred[.]

(Doc. No. 16-8 at 76.) However, trial counsel also explained that the jury was still free to
believe that Petitioner was not at the scene of the crime during the relevant period of time, even
without a specific alibi instruction. (Id. at 49.)
The Court finds that foregoing record supports the Superior Court’s adjudication on the
merits concerning the reasonableness of trial counsel’s strategy to present alibi evidence at trial
but to not request a specific alibi instruction for the jury. Indeed, the period of unaccounted-for-
time between the Petitioner and Eichelberger’s testimony demonstrates the appropriateness of

trial counsel’s determination that requesting an alibi instruction might have highlighted alibi
testimony and, thus, exposed their defense to this unaccounted-for-time. See Harrington, 562
U.S. at 109 (explaining that “[t]here is a strong presumption that counsel’s attention to certain
issues to the exclusion of others reflects trial tactics rather than sheer neglect” (quotation
omitted)); Rolan, 445 F.3d at 681–82 (stating that “counsel’s strategic choices will not be
second-guessed by post-hoc determinations that a different trial strategy would have fared
better”); Nolen v. Meyers, 98 F. App’x 97, 99 (3d Cir. 2004) (unpublished) (concluding that the
state court’s decision denying post-conviction relief was not contrary to or an unreasonable
application of Supreme Court precedent on ineffective assistance of counsel claims under the
Sixth Amendment, where trial counsel “made a conscious decision not to pursue an alibi defense

based on the inconsistencies in the alibi testimony[,]” believing “that an alibi jury instruction
would serve only to highlight these inconsistencies”).
b. Notice of Alibi
Having addressed the Superior Court’s decision concerning trial counsel’s failure to
request an alibi instruction, the Court briefly addresses the Superior Court’s decision concerning
trial counsel’s failure to file the requisite notice of alibi. Under Rule 567 of the Pennsylvania
Rules of Criminal Procedure, when a criminal defendant intends to offer an alibi defense at trial,
the defendant is required to file, within a specified period of time, a notice of alibi with the clerk
of court and to serve a copy of the notice and a certificate of service on the Commonwealth. See
Pa. R. Crim. P. 567(A). In addition, the Rule instructs that the defendant’s notice must “contain
specific information as to the place or places where the defendant claims to have been at the time
of the alleged offense[,] and the names and addresses of the witnesses whom the defendant
intends to call in support of the claim.” See Pa. R. Crim. P. 567(A)(2). If a defendant fails to

file and serve the notice of alibi, as required by the Rule, the trial court may, inter alia, “exclude
entirely any evidence offered by the defendant for the purpose of proving the defense, except
testimony by the defendant[.]” See Pa. R. Crim. P. 567(B)(1).
In Petitioner’s case, the state court record reflects that Petitioner’s trial counsel did not
file a notice to present an alibi defense. (Doc. No. 14-1 at 17.) However, the state court record
reveals that, despite trial counsel’s failure to do so, the trial court did not exclude alibi testimony
and did not instruct the jury to disregard such alibi testimony. Thus, whether this ineffective
assistance claim is reviewed under AEDPA’s deferential standard, see 28 U.S.C. § 2254(d), or
under de novo review, see 28 U.S.C. § 2254(a), it fails because the failure of trial counsel to file
a notice of alibi cannot reasonably be deemed prejudicial where alibi evidence was presented at

Petitioner’s trial. In other words, because the jury had the opportunity to assess and consider
such alibi evidence in order to determine whether Petitioner was physically present at the scene
of the crime during the relevant period of time, there is no “reasonable probability” that, if not
for trial counsel’s errors, the result of his trial “would have been different.” See Rogers, 80 F.4th
at 694; Strickland, 466 U.S. at 687 (explaining that, under the second prong of ineffective
assistance of counsel claims under the Sixth Amendment, a petitioner must show that counsel’s
“deficient performance prejudiced [his] defense”). For all of the foregoing reasons, the Court
will deny Petitioner’s request for habeas relief in Ground Five of his petition.
6. Ground Six
In Ground Six of his petition, Petitioner asserts that his trial counsel were ineffective for
failing to object to the prosecution’s presentation of inadmissible testimony of Petitioner’s “other
crimes, prior bad acts, and mental health stability.” (Doc. No. 1-1 at 45.) In support, Petitioner

points to the fact that the prosecution presented the “unredacted version” of Shauf’s videotaped
interview, which covered a wide range of subject matter irrelevant to the case (id.), making him
appear “as a derranged [sic] murderer with a short temper, who is ultimately mentally unstable”
(id. at 48). Thus, Petitioner contends that trial counsel should have challenged the introduction
of this prejudicial evidence (id.) or, at the every least, should have suggested a limiting
instruction about the purpose for which the jury may have considered the testimony (id. at 49).
Because, however, trial counsel did not do so, Petitioner contends that his right to the effective
assistance of counsel was violated. (Id.)
The state court record reflects that, with respect to this ineffective assistance claim, the
Superior Court found, as follows:

In his next issue, [Petitioner] asserts that counsel were ineffective for failing to
object to the improper admission of his prior bad acts, crimes, and mental health
issues, all of which were part of Shauf’s un-redacted video interrogation. At the
PCRA hearing, [Petitioner] testified that he did not ask counsel to object to the
use of Shauf’s unredacted video and, in fact, at trial, did not want counsel to
object to its use because he did not want to have a mistrial declared . . . .
[Petitioner] cannot now claim counsel was ineffective when he specifically told
counsel not to object to the admission of such evidence.

(Doc. No. 14-1 at 51.)
The Court concludes the Superior Court did not unreasonably apply Strickland or base its
decision on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Strickland
explains that counsel’s function in representing a criminal defendant includes, inter alia,
“particular duties to consult with the defendant on important decisions . . . . ” See Strickland,
466 U.S. at 688. The Superior Court’s conclusion that trial counsel decided not to object based
upon such consultation is supported by Petitioner’s testimony on this issue in the PCRA court:
Q At any point in time, did you ask your attorneys to object to the
information that [Shauf] was saying during the interview about
your criminal history, your mental health?

A I let them run it after things got going. I doubt if I said anything.

Q I guess that while the interview was playing, did you raise any
concerns to your attorneys?

A Other than I said, Oh, like that. Just got a response. But when
they started talking about my past history, only thing I was . . .
because I knew that was—everybody knew that’s illegal for them
to do.

Q You didn’t write down, [p]lease object, [a]re you gong [sic] to
object, anything like that?

A No, I didn’t.

Q Anything else regarding the video interview of [Shauf] that you
wish for the Court to know?

A I think I do remember because my stepfather was here. He was
dying of cancer. My mother just died. I know there was a
mistrial. I believe I told, Mike, please don’t object because it will
be a mistrial. My dad is dying. He wants me to take him out
west to die.

Q You recall asking them not to object?

A I think I did. I’m pretty sure I asked them not to object to it at the
time. Or that was in my mind anyway when I said, Oh. I know it
was mistrial automatically. I didn’t want—he didn’t last. He
died before—right after trial anyway.

(Doc. No. 16-7 at 80–81.) Accordingly, the Court will deny Petitioner’s request for habeas
relief in Ground Six of his petition.
7. Ground Seven
In Ground Seven of his petition, Petitioner asserts that trial counsel were ineffective for
failing to “assure [his] right to a fair and impartial state court jury.” (Doc. No. 1-1 at 51.) In
support, Petitioner alleges that trial counsel were ineffective for failing to object to the seating of

Juror number two (2), Mrs. Debra Nay (“Mrs. Nay”). (Id.) The state court record reflects that,
after Mrs. Nay had been selected for the jury, she realized that she recognized Shauf, and she
promptly brought this to the trial court’s attention. (Doc. No. 16-1 at 4.) The state court record
further reflects that, upon learning of the issue of potential bias, the trial judge and defense
counsel for Shauf questioned Mrs. Nay in the presence of the prosecutor and Petitioner’s
counsel, prior to the opening statements at Petitioner’s trial. (Id. at 4–5.) Mrs. Nay confirmed
that she and her husband had given Shauf a deposit to do some work on their home and that they
then had difficulty with Shauf completing the work. (Id. at 4 (explaining that her husband and
neighbor had to complete the work).) Mrs. Nay also confirmed that this incident occurred over
two (2) years prior to the start of trial. (Id.) However, Mrs. Nay represented, on several

occasions, that she believed she could serve as an impartial juror in the case. (Id. at 4–5.) At no
point did Mrs. Nay state or suggest that she knew Petitioner or had any prior interactions with
Petitioner, as she did with Shauf. See (id.). Ultimately, defense counsel did not move to have
the juror excused, and she remained on the jury. (Id. at 5.)
At the PCRA hearing, Attorney Palmero addressed this ineffective assistance claim by
testifying, as follows:
Q. Just regarding briefly the issue about the juror.

A. Okay.

Q. Do you recall the juror who made it known to the Court that she
had a prior involvement with [Shauf]?
A. She was ripped off by him, yes.

Q. Yes. Correct.

A. Yes, I recall.

Q. Were you ever made aware of any additional information in a
Ripoff report that was posted online regarding that?

A. I don’t believe I was.

Q. Okay.

A. I wasn’t afraid of that juror. We wanted that juror.

THE COURT: What?

THE WITNESS: We weren’t afraid of that juror. We wanted
that juror.

Q. Why did you want her?

A. Because she knew [Shauf] was a scumbag and cheat.

Q. Beneficial to [Petitioner]?

A. Forwarded into theory.

(Doc. No. 16-8 at 53–54.) Attorney Weisbrod also addressed this ineffective assistance
claim at the PCRA hearing by testifying, as follows:
Q. Okay. The last issue that I just wanted to ask your input on was
about the juror who claimed she had a prior relationship with
[Shauf] because of a poor business dealing. Do you recall that?

A. I do.

Q. And did you feel that juror, as [Attorney] Palermo did, was
beneficial to your case?

A. We did.

Q. Okay. So you wouldn’t have had any reason to request that she be
excused from testifying?
A. We had a conversation I believe with [Petitioner] about that and
our reasoning for wanting to keep . . . her on the jury. We knew
what he was going to say about [Petitioner], what he had already
said in his police interview about [Petitioner]. We wanted
somebody on there to say, You can’t believe a word that comes out
of this guys’ mouth.

Q. You didn’t . . . see any reason to request that juror be excused?

A. On the contrary.

Q. You had a conversation with [Petitioner] about keeping that juror
on; is that accurate?

A. Yeah. We had that conversation.

Q. Did he appear to agree with that conversation, with that decision?

A. I can’t remember how he viewed the decision. His only concern,
as he testified, Man, you know, I used to help [Shauf] every once
in a while. I go to the places. I don’t know if she knows me or if I
know her. That was his concern.

Q. I don’t believe that there were any questions about [Petitioner]
during the in-chambers questioning of that juror. Do you recall?

A. I don’t recall there were either.

Q. Did you know at that time that [Petitioner] may have been known
to the juror?

A. I did not have–he couldn’t even tell me that he was.

Q. So based on your interaction with the juror and interaction she had
with [Shauf], you thought it was strategically in [Petitioner]’s
interest to have her remain on the jury.

A. If we wanted the jury to believe Mr. Shauf was a liar, yeah.

(Id. at 81–82.)
Petitioner ultimately appealed the PCRA court’s denial of this ineffective assistance
claim to the Superior Court, which concluded, as follows:
With regard to his eighth issue on appeal, [Petitioner] contends that counsel was
ineffective for failing to object to the seating of Juror #2. At the PCRA hearing,
counsel testified that Juror #2 had a prior relationship with Shauf “because of a
poor business dealing” . . . . In determining not to object to the juror being
empaneled, counsel explained that he had a full conversation with [Petitioner]
that it was in [Petitioner]’s best interest to keep her on the jury so the defense
could convince “the jury to believe that [Shauf] was a liar.” Id. at 212. Because
the strategy pursued by counsel was reasonable, [Petitioner]’s ineffectiveness
claim fails. Spotz, supra; Commonwealth v. Koehler, 36 A.3d 121 (Pa. 2012)
(generally, where matters of strategy and tactics are concerned, counsel’s
assistance is deemed constitutionally effective if he chose particular course that
had some reasonable basis designed to effectuate client’s interests).

(Doc. No. 14-1 at 51–52.)

Accordingly, the basis for the Superior Court’s rejection of this ineffective assistance
claim is that trial counsel had a reasonable strategy for not opposing Mrs. Nay’s dismissal from
the panel and that, therefore, trial counsel’s performance could not be deemed deficient. The
Court cannot conclude that the Superior Court’s adjudication on the merits was an unreasonable
application of Strickland or based upon an unreasonable determination of the facts. See 28
U.S.C. § 2254(d). See 28 U.S.C. § 2254(d).
The state court record establishes that Petitioner’s trial counsel believed that it was in his
best interest to retain Mrs. Nay on the jury panel because trial counsel wanted to, essentially,
portray Shauf—who had testified against Petitioner at trial—as a liar and a cheat and who could
not be believed. (Doc. No. 16-8 at 53–54, 81–82.) Therefore, given that Mrs. Nay had a prior
negative encounter with Shauf, trial counsel believed that keeping Mrs. Nay on the jury panel
would help convince the jury (or at least Mrs. Nay) of this theory. However, regardless of
whether this trial strategy would be, or was, ultimately successful, the Court cannot conclude that
the Superior Court unreasonably applied Strickland where the state court record establishes that
the trial court’s probing examination of Mrs. Nay revealed no basis for disqualification. See
generally Smith v. Phillips, 455 U.S. 209, 217 (1982) (“Smith”) (concluding that that there was
an insufficient basis for a due process violation because “the remedy for allegations of juror
partiality is a hearing in which the defendant has the opportunity to prove actual bias[,]” and
explaining that the post-trial hearing held by the trial court was sufficient for this purpose
because “due process does not require a new trial every time a juror has been placed in a

potentially compromising situation”); see also Shauf v. Marsh, No. 1:19-cv-01911, 2022 WL
178815, at *8 (M.D. Pa. Jan. 19, 2022), certificate of appealability denied sub nom. Shauf v.
Superintendent Benner Twp. SCI, No. 22-1301, 2022 WL 18861861 (3d Cir. Aug. 26, 2022)
(denying Shauf’s ineffective assistance claim on the basis that his trial counsel failed to move to
dismiss Mrs. Nay as a juror, and explaining that “it is clear that the manner in which the state
court conducted its review is congruous with, and a proper and reasonable application of, the
clearly established Supreme Court law applicable to actual juror bias”); Strickland, 466 U.S. at
689 (explaining that “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action might be considered sound

trial strategy” (citation and internal quotation marks omitted)).
Relying on Smith, supra, Petitioner argues that the law imputes bias to Mrs. Nay
categorically and that, therefore, there can be no doubt that the trial court would have excused
her from the jury panel had trial counsel objected. (Doc. No. 1-1 at 54.) In Smith, Justice
O’Connor’s concurrence contemplated “some extreme situations that would justify a finding of
implied bias[,]” such as “the juror is an actual employee of the prosecuting agency[,] the juror is
a close relative of one of the participants in the trial or the criminal transaction[, or] the juror was
a witness or somehow involved in the criminal transaction.” See Smith, 455 U.S. at 222
(O’Connor, J., concurring). However, none of these extreme situations are present here. As a
result, Petitioner has not established that Mrs. Nay would have been excused for implied bias
under Smith.
In addition, the Court notes that Smith instructed that the general remedy for an
allegation of juror partiality is the opportunity to demonstrate actual bias. See id. at 215–18, 223

(containing majority opinion). And, here, the state court record shows that the trial court
adequately questioned Mrs. Nay prior to the start of Petitioner’s trial and ultimately found no
basis for excusing her for actual bias. Moreover, the Smith Court emphasized that, in habeas
proceedings, a state court’s finding regarding a juror’s impartiality is presumptively correct
under Section 2254. See id. at 218 (stating, as follows: “federal courts in such proceedings must
not disturb the findings of state courts unless the federal habeas court articulates some basis for
disarming such findings of the statutory presumption that they are correct and may be overcome
only by convincing evidence”).
Accordingly, for all of these reasons, the Court concludes that the state court’s
determination should not be disturbed. See 28 U.S.C. § 2254(d). The Court will, therefore, deny

Petitioner’s request for habeas relief in Ground Seven of his petition.
8. Ground Eight
In Ground Eight of his petition, Petitioner asserts that trial counsel were ineffective for
failing to object to the prosecutor’s improper and prejudicial remarks during closing argument or
for otherwise failing to request a curative admonition. (Doc. No. 1-1 at 56.) In support,
Petitioner references four (4) instances in which he believes that the prosecution sought to
inflame the prejudices of the jury. (Id. at 56, 60.) First, Petitioner points to the prosecutor’s
remark that Petitioner and Shauf are “wolves who prey on 98% of the world, who are sheep[.]”
(Id. at 56.) Second, Petitioner points to the prosecutor’s remark that the “police don’t plant
evidence[.]” (Id.) Third, Petitioner points to the prosecutor’s reference to the 9/11 tragedy,
which insinuated “that Petitioner and Shauf are somehow terrorists[.]” (Id. at 56–57.) And,
finally, Petitioner points to the prosecutor’s suggestion that Petitioner conceded to committing
the crime. (Id.) Petitioner argues that his counsel’s inaction allowed the prosecution to present

irrelevant or inflammatory rhetoric that diverted the jury’s attention from its proper role. (Id. at
59.) Petitioner further argues that, had his counsel objected or otherwise requested a curative
admonition, “there is a reasonable probability that the jury would have rendered another
verdict[.]” (Id. at 61.) As a result, Petitioner contends that his right to the effective assistance of
counsel was violated. (Id.)
The Court recounts the prosecutor’s relevant remarks during closing argument below:
These guys look different than they did. I asked a lot of questions of
the witnesses about how these guys looked. Shauf, just heavier. He looks
essentially the same.

This guy, he looks markedly different. This sort of look, sort of junior-high-
shop-teacher look is markedly different than what he looked like on October
22nd. You saw him in the interview. You saw the pictures. He looked markedly
different. Whatever impression is maybe trying to be made is not [Petitioner].
What you’re looking at is not [Petitioner].

The two big things, two big items of truth are this: Varner murdered Hugo. Even
he says that. Shauf was upstairs in Bedroom 1 . . .

If you believe Shauf completely to the extent he minimizes his own activities,
[Petitioner] went upstairs. Think about this. Want to break it down piece by
piece . . . .

****

There’s three kinds of people in the world. In my military experience, I’ve heard
a lot of illustrations. I think this is useful today. There’s three types of people.
First are sheep. It’s about 98 percent of the population.

I don't know all of you personally. I suspect most, if not all of you, are sheep.
That’s not a pejorative term at all. It’s someone who has a prosocial behavior,
who lives their lives to benefit others, to stay peaceful, mind their own business,
do their job, support their friends and family, keep their nose clean, don’t have
much interaction with criminals and evil. Most people, about 98 percent.

There’s 1 percent who are wolves. They prey on the sheep. That’s either
something that law enforcement has to deal with or the military. There’s 1
percent out there whose jobs in their minds is to prey on the sheep, someone
weaker and not prepared to meet the challenge, defend themselves.

Thankfully, there’s another 1 percent. Sheepdogs. The sheepdogs’ job is to
protect the sheep. They fight the wolf. They’re kind of similar sometimes—and
they have to be—in the sense the violence the wolf brings to the sheep has to be
met with violence to meet that, right? The difference between the two is right
here. It’s integrity, and it’s morality.

I saw a picture once of a man, a Port Authority officer. He was standing on
Ground Zero on September 11th, 2001. He’s covered in dust. And he has three
civilians around him all covered in dust. You look at his face. You can’t find his
face on the Internet. I was shown his face in the context of this illustration.
Abject fear. Not a movie. It’s not an actor. Look at the fear. It’s abject fear.

He’s been up in the tower one, two, three times already. Ground Zero, New
York. September 11th. People he just hustled out of the building. People
jumping out on fire, smoke everywhere. He’s been up there three times in the
tower. Back down. Covered in dust.

That was after his third trip in the building. He went in a fourth time. He didn’t
come out. He didn’t do that because he was tough, masculine, full of
testosterone. That officer did that out of love, out of love for the sheep, for the
flock, for the morality involved in that.

It is disgusting for these two, both of them, to denigrate this community’s police
officers and say they planted evidence so we could happen to pin a murder on
someone. It’s disgusting.

If you want to believe cops planted evidence in this case for some reason to nail
these two for some vendetta they may have for some reason, acquit them. If
that’s what you think happened, acquit them . . . .

(Doc. No. 16-6 at 31–32 (emphasis added).)
In addition, the state court record reflects that, before the trial court gave its final
instructions to the jury, Petitioner’s counsel requested a curative instruction on the basis that the
prosecutor had argued facts not in evidence when he asserted that Petitioner had implied that the
police had planted evidence. (Doc. No. 16-6 at 43–44.) The trial court denied the request,
explaining that the prosecutor made this implication based upon Petitioner’s response to the
prosecution questioning him during the trial and that, ultimately, it was for the jury to decide
whether or not they agreed with the prosecutor’s implication. (Id. at 44); see also (Doc. No. 16-5

at 23 (providing an exchange between Petitioner and the prosecutor concerning whether
Petitioner was implying that the police had planted the weapons in his house)).
With respect to this ineffective assistance claim, the trial court (sitting as the PCRA
court), stated as follows:
Defendant claims the prosecutor engaged in misconduct and caused undue
prejudice by failing to provide exculpatory and impeachment evidence, making
improper comments during the trial, using false and misleading statements in
the affidavit of probable cause for the search warrant, and the use of photo of
the deceased in the opening, direct, and closing.

* * * *

Defendant has provided no evidence for the accusations of prosecutorial
misconduct. Without evidence to substa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414832. Public record. Not legal advice.