SMITH v. MAHALLY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DONALD SMITH, )

)

Petitioner ) Case No. 1:17-cv-00257 (Erie)

)

vs. )

) RICHARD A. LANZILLO

SUPT. LAWRENCE MAHALLY, ) UNITED STATES MAGISTRATE JUDGE

ATTORNEY GENERAL OF THE )

STATE OF PENNSYLVANIA, ) MEMORANDUM OPINION AND

JOSH SHAPIRO, DISTRICT ) ORDER ON PETITION FOR HABEAS

ATTORNEY OF VENANGO COUNTY _ ) CORPUS RELIEF

)

) ECF NO. 4

)

Donald Smith (Smith), proceeding pro se, has filed a Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254 (the Petition).’ ECF No. 4. He challenges his conviction for

kidnapping, criminal conspiracy to commit simple assault, simple assault, possession of a weapon,

terroristic threats, and possession of drug paraphernalia. For the reasons that follow, the Petition

will be dismissed because none of the proposed grounds merits the grant of federal habeas relief?

Furthermore, because jurists of reason would not find this disposition of the petition debatable, a

certificate of appealability will also be denied.

‘Under § 2254, a habeas petitioner must, at the time of filing, be in custody under the conviction he is attacking. 28

US.C. § 2254; Obado v. New Jersey, 328 F.3d 716 (3d Cir. 2003), see also Lackawanna Cty. Dist. Att'y v. Coss, 532 US. 394,

401-02 (2001); Mateng v. Cook, 490 U.S. 488, 490-91 (1989). It appears from the state court docket that Smith is no

longer incarcerated and has been released on parole. See Court of Common Pleas criminal docket, available at available

at https:/ /ujsportal.pacourts.us/DocketSheets/ CPReport.ashxrdocketNumber=CP-61-CR-0000733-

2007&dnh=j£X3LIDrhuy 24qgZMsNySKQ%3d%3d (last visited April 30, 2019) [hereinafter “Crim. Docket”]. But as the

Supreme Court explained, a parolee can still challenge his conviction by a habeas petition. See Jones v. Cunningham, 371

U.S, 236 (1963). The Supteme Court considers a patolee in “custody” under § 2254(b) because “the custody and control

of the Parole Board involve significant restraints on petitioner’s liberty ... which are in addition to those imposed by the

State upon the public generally.” Id. at 242, 83 S. Ct. 373. See also Lehman v. Lycoming County Children’s Services Agency, 458

U.S. 502, 509, 102 S. Ct. 3231, 73 L-Ed.2d 928 (1982) (quoting Jones). Since Smith was sentenced to a five-yeat term of

probation, he remains in custody for habeas corpus purposes and his petition is not moot.

* Petitioner and Respondent have consented to the exercise of jurisdiction by a United States Magistrate Judge. ECF

Nos. 16 and 17.

1. Factual Background

Somewhat unusually, neither the trial court nor Smith’s Brief to the Pennsylvania Superior

Court relate the background facts underlying Smith’s criminal case. As the Superior Court noted on

direct appeal, “the underlying facts resulting in the charges in this case are not set forth in the trial

coutt’s Opinion of February 12, 2010, or in the Brief for Appellant. In addition, the

Commonwealth has not filed a brief in connection with this appeal.” See ECF No. 12-1, p.40 n.1.

Addressing Smith’s appeal in his Post Conviction Relief Act PCRA) proceedings, the Pennsylvania

Supetior Court recounted the factual history of the case as follows:

Appellant and a co-defendant, Shane Carey, confronted the

complainant, Ian Jordan, about money Jordan owed Appellant.

Appellant and co-defendant then drove Jordan in Carey’s car,

verbally threatened him, and physically struck him. When the cat

cate to a stop sign, Jordan fled into a nearby cornfield. Appellant

and Carey chased Jordan on foot, and Carey tackled him. Appellant

and Carey proceeded to assault Jordan in the field. Afterwards,

Appellant and Carey returned to the car and left the scene. Jordan

walked back to the roadway and received assistance from a passing

motorist, who called 911. Jordan did not immediately report the

incident. Jordan reported the encounter to the police later in the day

and stated he was “pistol-whipped.” He later stated that Appellant

held a knife to his throat when they wete in the car. Officers then

obtained a warrant to seatch Appellant’s residence. The warrant

listed Appellant’s business address, but a detective testified at trial

that he telephoned the magisterial district magistrate with the correct

address for Appellant’s residence. Duting the search, officers

discovered a small amount of marijuana, paraphernalia related to the

use of marijuana, a white powder on a plate, and a black, flip-type,

. locking blade knife. A detective testified at trial that the knife was

capable of being opened with a motion of the wrist. Officers

obtained a second search warrant for drug evidence and recovered a

prescription bottle of dihydrocodone and one tablet of

hydromorphone. Appellant was taken into custody and denied

involvement in an altercation with Jordan during a videotaped

interrogation. The videotape of Appellant’s interrogation was played

at trial. Subsequently, Appellant and Jordan were confined at the

same jail. Jordan asserted that Appellant, both personally and

through other inmates, threatened him and offered him money not to

testify.

Id. at pp. 204-206.

IL. Procedural History

A. Proceedings in State Court

The Pennsylvania Superior Court also summarized the procedural history of the case in the

state courts:

Appellant was charged as follows. As to the initial incident involving

Appellant, Carey, and Jordan, Appellant was charged with

kidnapping, conspitacy, aggravated assault, simple assault, coercion,

possession of an instrument of crime, recklessly endangering another

petson, and terroristic threats. As to the contraband discovered

during the search of his residence, Appellant was charged with

possession with intent to use drug paraphernalia and possession of a

small amount of marijuana. Appellant was also chatged with

intimidation of a witness for the alleged interactions at the prison.

The chatges were consolidated for the purposes of trial.

KK

... [T]he jury found Appellant guilty of one count each of

kidnapping, criminal conspitacy, possession of a weapon, tertotistic

threats, possession with intent to use drug paraphernalia, and simple

assault. The jury acquitted Appellant of aggravated assault, criminal

coercion, recklessly endangering another person, and intimidation of

a witness. The trial court separately found Appellant guilty of

possession of a small amount of marijuana. [Smith was] sentenced to

an aggregate term of ten to twenty years’ imprisonment and a

consecutive five-year term of probation. The Court’s sentence was

based on the imposition of a mandatory “second strike” sentence for

kidnapping. Appellant timely appealed and this Court affirmed. The

Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on September 27, 2011. Trial counsel

represented Appellant during his direct appeal.

Appellant filed a timely pro se PCRA petition, which the Court

received on December 13, 2011. Appellant subsequently filed a

supplemental pro se petition on December 13, 2012. The court

appointed counsel, who did not amend Appellant’s petition.

KOK

... [I[]he PCRA court denied Appellant’s petition and granted PCRA

counsel’s motion to withdraw. Appellant filed a timely notice of

appeal .... The PCRA court ordered Appellant to file a concise

statement of etrors complained of on appeal pursuant to Pa. R. A. P.

1925(b), and Appellant complied.

Id. at pp. 206-211. The Superior Court affirmed the denial of PCRA telief. Id. at 246. Smith did not

seek an allowance of appeal from the Pennsylvania Supreme Court.

B. Proceedings in Federal Court

Smith filed the instant petition on September 18, 2017. ECF No. 4. He also supplemented

his petition with two additional claims on November 16, 2017. ECF No. 6. In the Petition, Smith

raised numerous grounds for relief, all of which are based on the alleged ineffectiveness of his

counsel:

Ground One: PCRA counsel ineffective for not arguing issues of merit

against ttial counsel and filing Twner/ Finley letter;

Ground Two: Trial counsel ineffective for not objecting timely to Judge’s charge to

jury which was misleading and bias (sic);

Ground Three: Trial counsel ineffective for not using peremptory challenge on

newspaper editer (sic) who sat on jury;

Ground Fout: Trial counsel ineffective for not filing motion to suppress video that

was shown to jury that showed Smith’s record.

ECF No. 4, pp. 5-10. His two supplemental grounds for relief are also ineffective assistance of

counsel claims:

Ground Five: ‘Trial counsel ineffective for not objecting to testimony of a gun being

involved, when a gun was never part of the case;

Ground Six: Trial counsel ineffective for not objecting to testimony of a prior

assault on the victim.

ECF No. 6, p. 2.

After being granted an extension of time, Respondents filed their Answer to the Petition on

January 8, 2018, contending that all of the Grounds for Relief are without merit. ECF No. 12.

Respondents also filed the original state court record with this Court.> Smith filed a Reply Brief.

ECF No. 18. The Petition is now ready for disposition.

Ill. ‘The Habeas Corpus Legal Standard

Habeas corpus is an “extraordinary remedy’ reserved for defendants who wete ‘grievously

wronged’ by the criminal proceedings.” Dyan v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting

Calderon v. Coleman, 525 U.S. 141, 146 (1998)). In enacting the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Congress “significantly limited the federal court’s power to grant a

writ of habeas corpus.” Tolbert v. Ferguson, 2019 WL 4677357 at *2 (E.D. Pa. Aug. 8, 2019). Under §

2254, a district court may entertain an application for a writ of habeas corpus filed by a person in

state custody “only on the ground that he 1s in custody in violation of the Constitution ot laws of

the United States.” 28 U.S.C. § 2254(a). Moreover, federal courts must give considerable deference

to determinations made by state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772

(2010). Thus, if a claim presented in a § 2254 petition has been adjudicated on the metits in state

court proceedings, habeas telief cannot be granted unless:

the adjudication of the claim (1) resulted in a decision that was

conttaty to, of involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Coutt 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

ptesented in the State court proceeding.

28 U.S.C. § 2254 (d). It 1s the habeas petitioner’s burden to show that the state coutt’s decision was

conttaty to ot an unreasonable application of United States Supreme Coutt precedent and/or an

unreasonable determination of the facts. Moreno v. Ferguson, 2019 WL 4192459, at *3 (W.D. Pa. Sept.

4, 2019).

3 Those documents are indexed and numbered and this Court will cite them as “SCR No.____—«.”. When available,

specific page numbers will be indicated.

The United States Court of Appeals for the Third Circuit has emphasized the heavy burden

habeas petitioners bear, noting that “even ‘clear error” by the state courts “will not suffice.” Ovze ».

Sec. Pa. Dept. of Corrections, 940 FP. 3d 845, 850 Gd Cir. 2019). Rather, the state court must be wrong

“beyond any possibility for fair-minded disagreement.” Id. (citations and some internal quotations

omitted). Moreover, the factual determinations of the state courts are presumed correct. See 28

US.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a

petson 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 cortect.”).

Ill. Analysis and Discussion

As the Court of Appeals for the Third Circuit explained,

Undergirding federal habeas law is an extensive procedural

framework that limits when and how a petitioner may raise post-

conviction claims for relief and which claims are reviewable in federal

court. Concerns of federalism, comity, and finality shape this

complex framework and have required [courts] to generate specific

tules for when a petitioner’s claim may be adjudicated on the metits.

Mathias v. Superintendent Frackville SCI, 876 F.3d 462, 465 Gd Cir. 2015). Among the “specific rules”

relevant to the resolution of Smith’s claims are those of timeliness and exhaustion.

A. Timeliness

Before the Court can address the merits of Smith’s petition, it must first decide whether it

was timely filed. Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019). Pursuant to

AEDPA, a state prisoner must file his federal habeas claims within one year of the date his judgment

of sentence became final. 28 U.S.C. § 2244(d)(1)(A). Smith’s conviction became final on the day of

his sentencing: April 15, 2009. Smuth sought direct review of his conviction and sentence from the

Pennsylvania Superior Court and Pennsylvania Supreme Court. Pennsylvania Supreme Court denied

his petition for allowance of appeal on September 27, 2011 and Smith’s sentence became final for

putposes of the one-yeat PCRA statute of limitations and the one-year federal habeas statute of

limitations ninety days afterward, December 26, 2011. See 28 U.S.C. § 2244(d)(1)(A) (the one-year

federal limitations period generally begins on the date the petitioner’s judgment of sentence became

final “by the conclusion of direct review or the expiration of the time for seeking such teview’’).

Because Smith filed his PCRA petition earlier—on December 13, 2011——the one-year habeas statute

was “immediately tolled” on December 26, 2011. Ne/son v. Superintendent of SCI-Retreat, 2019 WL

897296, at *2 n.4 (E.D. Pa. Jan. 31, 2019). Smith’s PCRA petition remained pending in the state

court system until September 27, 2016. On that date, the one-year AEDPA statute of limitations

began to run, giving Smith until September 27, 2017 to file his petition. He filed his petition on

September 18, 2017, eleven days before the expiration of the statute of limitations. Thus, his

petition is timely.

B. Exhaustion and Procedural Default

As a general matter, a federal district court may not consider the merits of a habeas petition

unless the petitioner has “exhausted the remedies available” in state court. See 28 U.S.C. §

2254(b)(1)(A); O Sulhvan v. Boerckel, 526 U.S. 838, 842 (1999). A petitioner satisfies the exhaustion

requirement “only if [he or she] can show that [they] fairly presented the federal claim at each level

of the established state-court system for review.” Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004).

The purpose of the exhaustion requirement is to “give the state courts a full and fair opportunity to

resolve federal constitutional claims before those claims are presented to the federal coutts ... by

invoking one complete round of the State’s established appellate review process.” O ‘Sulivan, 526

USS. at 845.

In order to “fairly present” a clatm for exhaustion purposes, the petitioner must advance the

claim’s “factual and legal substance to the state courts in a manner that puts them on notice that a

federal claim 1s being asserted.” Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir.

2018) (quoting McCandless, 172 F.3d at 261)). A petitioner may exhaust a federal claim either by

raising it on direct appeal or presenting it in post-conviction PCRA proceedings. O‘Sul/ivan, 526 U.S.

at 845. Either way, the petitioner must present his federal constitutional claims “to each level of the

state coutts empowered to hear those claims.” Id. at 847 (“requiting state prisoners [in order to fully

exhaust their claims] to file petitions for discretionary review when that review is part of the ordinary

appellate review ptocedute in the State”). “Once a petitioner’s federal claims have been fairly

ptesented to the state’s highest court, the exhaustion requirement is satisfied.” Svoss v. Estock, 2019

WL 2160464, at *3 (M.D. Pa. May 17, 2019) (citing Castile v. Peoples, 489 U.S. 346, 350 (1989)).

An important corollaty to the exhaustion requitement is the doctrine of procedural default.

“Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner

who has failed to meet the State’s procedural requirements for presenting his federal claims has

deprived the state courts of an opportunity to address” the merits of those claims “in the first

instance.” Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Procedural default intertwines with

exhaustion in the following manner: when a claim has never been “ ‘fairly presented’ to the state

coutts, but state procedural rules bar the applicant from seeking further relief in state courts, the

exhaustion requirement is satisfied” due to the lack of available state process, but the claims “are

considered to be procedurally defaulted.” McKenzie v. Tice, 2020 WL 1330668, at *5 (M.D. Pa. Mat.

23, 2020) (quoting McCandless v. Vaughn, 172. F.3d 255, 261 (3d Cir. 1999)). Such claims may not

otdinatily be reviewed by a federal court. Davila v. Davis, 137 S. Ct. 2058, 2064 (2017) (“[A] federal

coutt may not review federal claims that were procedurally defaulted in state court—that is, claims

that the state court denied based on an adequate and independent state procedural rule.”’) (citations

omitted).

Several caveats exist. First, “[a] state procedural rule can preclude federal habeas corpus

teview” only when the state rule is “independent of the federal question [presented] and adequate to

support the judgment.” McKenzie, 2020 WL 1330668, at *5 (quoting Leyva v. Wilkams, 504 F.3d 357,

365 (3d Cir. 2007). A tule is “independent” if it is not interwoven with federal law’ that it

cannot be said to be independent of the merits of a petitioner’s federal claims.” Id. (quoting Johnson

v. Pinchak, 392 F.3d 551, 557 (3d Cir. 2004)). A rule is “adequate” if it was “firmly established,

readily ascertainable, and regularly followed at the time of the purported default.” Levya, 504 F.3d at

366 (quoting Szuchon v. Lehman, 273 F.3d 299, 372 (3d Cir. 2001)).

Second, a petitioner can overcome procedural default, thereby permitting federal court

review, if the petitioner can demonstrate either: (1) “cause” for the default and “actual prejudice” as

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

in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To demonstrate cause and

ptejudice, the petitioner must show some objective factor external to the defense that impeded

counsel’s efforts to comply with a state procedural rule. S/utzker v. Johnson, 393 F.3d 373, 381 3d

Cir. 2004) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To demonstrate a fundamental

miscattiage of justice, a habeas petitioner must typically show actual innocence. Sch/up v. Delo, 513

U.S. 298, 324-26 (1995).

Applying these principles, the Court concludes that two of the grounds for telief raised in

Smith’s Petition are procedurally defaulted. For purposes of this analysis, the Court will group those

together for collective disposition. Three of the claims raised in Smith’s habeas petition were denied

on the merits by the Superior Court on PCRA review. As such, the Court will not review those

claims de novo and Smith must demonstrate more than a violation of his Sixth Amendment rights.

He also must overcome the AEDPA deferential standard, as well as the presumption of correctness

this Court must afford the state court findings under § 2254(e). See, ¢.g., Pritchett v. Superintendent, □□□□

Laurel Highlands, 2020 WL 1643385, at *5 (W.D. Pa. Apr. 2, 2020).* Finally, one claim will be

reviewed de novo.

C. Claims Five and Six are Procedurally Defaulted.

In his fifth and sixth grounds for relief, Smith alleges that trial counsel was ineffective for

not objecting to witness testimony (a) that a gun was involved in the crime charged and (b) that

Smith had previously assaulted the victim “a few weeks before the underlying offenses.” ECF No.

6, fj 1-2. Both of these grounds for relief were raised in Smith’s supplemental habeas petition. Id.

But Smith did not present either of these claims duting his state court proceedings. Because the

time to do so has long passed, these claims are procedurally defaulted and unreviewable in federal

court unless Smith can ovetcome the default. See, eg., Jones v. Ferguson, 2020 WL 2145408, at *13

(E.D. Pa. Apt. 6, 2020), report and recommendation adopted, 2020 WT. 2126853 (E.D. Pa. May 5, 2020);

Hawes v. Mahalley, 2020 WL 1508267, at *3 (M.D. Pa. Mar. 30, 2020) (acknowledging that the PCRA

statute of limitations “4s an ‘adequate’ and ‘independent’ state procedural rule which is consistently

applied”) (quoting Doctor v. Walters, 96 F.3d 675, 684 (3d Cir. 1996)).

Smith can overcome this procedural default by demonstrating either: (1) “cause” for the

default and “actual prejudice” as a result of the alleged violation of federal law; or (2) that the failure

to consider the claim will result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

He does neither. First, aside from general averments of incompetence and misconduct, Smith

4 Since Smith argues that PCRA counsel was ineffective for failing to challenge the actions of trial counsel, these are

layered claims of ineffectiveness. In the case of Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003), the Pennsylvania

Supreme Court clarified the law on layered ineffectiveness claims brought under the PCRA and set forth in detail the

framework for pleading and proving such claims. “When an issue is ptesented via a layered claim of ineffectiveness, the

only viable claim is that related to the most recent counsel, usually appellate counsel. Id at 1022. A petitioner must then

present the claim of ineffectiveness of appellate counsel through the three-pronged test of Commonwealth v. Pierce, 515 Pa.

153, 527 A.2d 973 (Pa. 1987). Id. Because it is a nested claim, in order to establish the first prong of the Perce test as to

the performance of appellate counsel, a petitioner is required to demonstrate the ineffectiveness of trial counsel. In other

words, a petitioner must establish all three prongs of the Pierce test as to trial counsel’s ineffectiveness before the

question of appellate counsel’s ineffectiveness can be addtessed. Id. at 1022-23.” Rasyjan v. Wetzel, 2019 WL 3146207, *10

n.3 (MD. Pa. Jul. 15, 2019).

10

advances no compelling argument to establish that a fundamental miscarriage of justice will occut if

this Court does not consider his claims.°

As to “cause,” Smith appears to assert that cause exists to overcome his procedural default

because the information about the gun was “false” and that the prior assault on the victim “never

happened.” ECF No. 18, p. 7. He provides no information or citation to the record to back up

these claims nor does he discuss how he may have been prejudiced. To demonstrate cause and

prejudice, the petitioner must show some objective factor external to the defense that impeded

counsel’s efforts to comply with a state procedural tule. S/utzker v. Johnson, 393 F.3d 373, 381 3d

Cir. 2004) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Smith fails to establish the existence

any external factor that prevented him from raising these claims in the state coutt.

Instead, he attempts to shield these two claims from procedural default by taking refuge

under Martinez v. Ryan, 556 U.S. 1 (2010). See zd. pp. 8-9. Under Martinez, in order to avoid the

default of an ineffective-assistance-of-trial-counsel claim, Smith must establish two things: (1) that

the ineffective-assistance-of-trial-counsel claim is “substantial”; and (2) that PCRA counsel was

ineffective within the meaning of Strickland. Martinez, 566 U.S. at 14; Workman v. Superintendent, 915

F.3d 928, 937 (3d Cir. 2019). Smith has not established the first factor; therefore, the Court does

not need to evaluate whether he has demonsttated the second.

The Court of Appeals has explained that an ineffective-assistance-of-trial-counsel claim is

“substantial” if it has “some merit.” Workman, 915 F.3d at 938. The evaluation of whether a claim

has “some merit” is the same one that a federal court undertakes when it considets whether to grant

> To establish a “miscarriage of justice” for purposes of overcoming procedural default, the petitioner must present

evidence of “actual innocence” that is “so strong that a court cannot have confidence in the outcome of the trial unless

the court is also satisfied that the trial was free of nonharmless constitutional ertor[.]” □□□ v. Del, 513 U.S. 298, 316

(1995). The “miscarriage of justice” exception only applies in extraordinary cases where the petitioner demonstrates that

a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id 513 U.S. at 316.

Based on the Court’s teview of Smith’s atguments and the trial record, there is no question that this is not the type of

extraordinary case in which he can overcome the default of his claims by way of the miscarriage of justice exception.

11

a certificate of appealability. Id. Thus, Smith “must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claim debatable or wrong.” Slack v. McDaniel,

529 US. 473, 484 (2000); Workman, 915 F.3d at 938 (a petitioner “must ‘show that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should be resolved in a different

manner of that the issues presented were adequate to deserve encouragement to proceed further.””)

(quoting Martinez, 566 U.S. at 14, which cited Milkr-E/ v. Cockrell, 537 U.S. 322 (2003)).

Smith has not demonstrated his claim of trial counsel’s ineffectiveness for failing to object to

this testimony has “some merit.” The law presumes that counsel was effective. Strickland, 466 at

689. Thus, to ultimately prevail on his request for federal habeas relief, Smith would have to show

that trial counsel’s decision not to object to the testimony in question was objectively unreasonable

under the Strck/and standard. In this case, trial counsel explained these decisions at the PCRA

evidentiary hearing. As to the reference to a gun, counsel made clear that he wanted this

information heard by the juty because he felt discrepancies about the gun would damage the

ctedibility of a witness and did impeach the testimony of one witness. The same is true for

unsubstantiated allegations a witness made of a prior assault Smith committed against him. Here,

trial counsel explained that he did not object because other evidence—the absence of any

documentation or corroboration—would undermine the witness’ credibility in front of the jury.

And, the record reveals that counsel did in fact use this in an attempt to impeach the witness’

testimony. Given these explanations, 1t was objectively reasonable for trial counsel not to object and

Smith therefore has not demonstrated that there is “some merit” to these claims of ineffectiveness.°

See, ¢.g., Elensley v. Cappoza, 2019 WL 5457396, at *6 (WW.D. Pa. Oct. 24, 2019).

6 Smith appears to tecognize as much. He acknowledges that “[i]tial counsel said he wanted this to be heard by the juty,

he said the juty wouldn’t believe it, he used this testimony to try to impeach Ian Jordan’s testimony.” ECF No. 18, p. 7.

12

Accordingly, Smith has not satisfied the first Martinez requirement, and his claim remains

unreviewable in federal court. See, eg. Jones, 2020 WL 2145408, at *13.. Grounds five and six

cannot be reviewed in the instant proceeding and must be dismissed.

D. Claim One Does Not Merit Relief.

In Ground One of the Petition, Smith contends that he should be granted habeas relief

because his post-conviction counsel was ineffective “for not arguing issues of merit against trial

counsel and filing a Turner/Finiey letter.”’ ECF No. 4, p. 5. On appeal to the Superior Court from

the denial of his PCRA petition, Smith lists “whether Appellant’s PCRA counsel was ineffective for

failing to provide the pro se Appellant with day one (1) and four (4) of the PCRA notes of testimony

so that Appellant can completely litigate his claims on appeal where initial-review collateral counsel,

filed a “no merit” letter upon Appellant.” ECF No. 12-1, p. 67. In its opinion, the Superior Coutt

noted the issue (Id. at p. 213-218), and held that

Because Appellant cannot prove trial counsel’s ineffectiveness with

respect to these issues, his layered claim involving PCRA counsel’s

ineffectiveness also fails ... Appellant’s remaining objections to

PCRA counsel’s Twrner/Finiey letter — trial counsel stipulates to

evidence, a conflict of interest based on trial counsel’s stipulation to

evidence, a conflict of interest based on trial counsel’s election as

district attorney, and the illegal imposition of a mandatory “second

strike” minimum sentence — have been abandoned on appeal.

Id. at p. 246. Thus, Smith has exhausted this claim but although exhausted, the claim lacks merit.

The habeas statute expressly states that claims of ineffective assistance of state post-

conviction counsel are not cognizable bases for habeas relief. See 28 U.S.C. § 2254@). Hence, this

claim is not cognizable in habeas proceedings and will be dismissed.

'This is a brief or letter indicating the appeal has no merit. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988),

and Commonwealth v. Finley, 379 Pa. Super. Ct. 390, 550 A.2d 213 (1988) (en banc).

13

E. Claim Two Does Not Merit Relief.

As a second ground for habeas telief, Smith argues that his trial counsel was ineffective in

not objecting to the trial court’s jury charge until after it was given. ECF No. 4, p. 7. Smith claims

the trial court made several “untrue and bias[ed] statements” to which defense counsel “did not

object until the Commonwealth had rested its case.” He does not provide specific examples of

these untruths or misleading statements except to claim that the trial judge made false mention of a

switch blade knife during the jury charge. ECF No. 18. p. 3. Smith provides no othet examples of

specific untruths and/or biases.

The Superior Court considered this ground for telief as part of Smith’s broader claim that

trial counsel was ineffective by failing “to object to the trial court’s questioning of witnesses and

summation of the evidence during the jury’s charge.” Commonwealth v. Smith, 54199813, *4. So then,

this claim was fairly presented to the Superior Court on appeal from the denial of PCRA relief and

thus is exhausted. Because the Pennsylvania Superior Court addressed this claim of ineffectiveness

on the merits, this Court must, consequently, view it through AEDPA’s highly deferential lens. See,

Proper v. Clark, 2020 WL 1814390, at *10 (W.D. Pa. Apr. 9, 2020).

The trial judge made the following remarks when charging the jury:

It is significant at this point that before Mr. Jordan got out of the car

that Mr. Carey did say to Jordan, “You ain’t going nowhere unless

you go with us.” Now, that would—and this 1s the core point, I think

for your decision in this case at this point is, was the movement from

the cat to the other car and then the transport, was it against Jordan’s

will or was it consensual? Obviously, if you are not convinced beyond

a reasonable doubt that it wasn’t consensual, then it would be your

duty to acquit. If you are convinced beyond a reasonable doubt that

Jordan did not consent, then of course that would be the kidnapping

charge.

SCR at 124. Smith claims that his trial counsel should have objected to this charge because it was

misleading and biased. The Superior Court denied relief, holding that the trial court’s comments did

not misstate the evidence and amounted to nothing more than “gratuitous observations.”

14

Commonwealth v. Smith, 2016 WL 5419813, *14 (Pa. Supet. Ct. Sep. 26, 2017). Thus, prejudice could

not be established under Streck/and.

In rejecting Smith’s contention that his trial counsel was ineffective for failing to object to

the trial court’s comments, the Superior Court recognized that the trial court’s comments conveyed

its “view of the importance of an isolated portion of Carey’s videotaped statement to the police.” Id.

at *14. However, the Superior Court found—importantly—that the trial court did not misstate the

evidence. Id. The trial transcript confirms this; the mention of a knife by the trial judge was not

improper. While instructing the jury, the trial court stated:

Going on with the theory of the Commonwealth, at least as

presented through Shane Carey, car doors were left open. I think

there was testimony to that effect. That as they were in the car that

Donny was smacking Jordan around. He did not personally see a

knife but says that Don did frequently carry a switch blade knife.

You have that in evidence as Exhibit #12. And that he observed —

because he was driving, he could observe the defendant holding the

seat belt behind Mr. Jordan and that his nght hand was not visible to

him; that they were on their way to Barkeyville to Mr. Jordan’s

mothers.

SCR at 124. Here, the trial judge is summarizing the evidence for the jury, not commenting

inappropriately on its nature or significance. Furthermore, the Superior Court pointed to the trial

court’s overarching instruction to the jury that its “recollection of the testimony—and not the

court’s—controlled, and that the judge made only “gratuitous observations.” Id.

Thus, because juties are presumed to follow the Court’s instructions, the Superior Court

concluded Smith was not entitled to relief on this claim and, by implication, he was not prejudiced

by counsel’s failure to object. Id. (citing Commonwealth v. RyRkard, 55 A.3d at 1184).

When it addressed this claim, the Superior Court applied the familiar three-pronged test for

ineffective assistance of counsel originally set forth in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)

(the “Pierce standard”). See Commonwealth v. Smith, 2016 WL 5419813, *6 (Pa. Super. Ct. Sept. 27,

2016). The Superior Court stated that a claimant establishes ineffective assistance of counsel “when

15

he demonstrates that: (1) the underlying claim is of arguable merit; (2) that counsel’s action or

inaction was not grounded on any reasonable basis designed to effectuate the appellant’s interest;

and finally, (3) that counsel’s action or inaction was prejudicial to the client.” Jd. (quoting

Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super. 2014), appeal denied, 104 A.3d 523 (Pa.

2014) (some citations omitted). The Court of Appeals for the Third Circuit has held that this

ptecise language comports with the “clearly established” federal standard governing ineffective

assistance of counsel claims set forth in Strickland v. Washington, 466 U.S. 668 (1984). See, ¢.g., Werts v.

Vaughn, 228 F.3d 178, 203 (3d Cir. 2000); Tyma v. District Atty. Of Allegheny Cty., 2019 WL 7207302,

*8 (W.D. Pa. Dec. 27, 2019) (“The Prerce standard has been found to be materially identical to the

test enunciated in Strickland v. Washington”). Hence, the Superior Court did not apply a rule of law

that is “contrary to . . . clearly established Federal law, as determined by the Supreme Coutt of the

United States.” 28 U.S.C. § 2254(d)(1). See Werts, 228 F.3d at 204; Tyma, 2019 WL 7207302, at *8.

Nor was the Superior Court’s adjudication an “unreasonable application” of the Strickland

standard or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1), (2); Jacobs

v, Horn, 395 F.3d 92, 107 n. 9 (3d Cir. 2005). Under the “unteasonable application” prong of §

2254(d), the appropriate inquity is whether the Pennsylvania courts’ application of Strick/and to

Smith’s ineffectiveness claim “was objectively unreasonable, z¢., the state court decision, evaluated

objectively and on the merits, resulted in an outcome that cannot reasonably be justified under

Strickland.” Werts, 228 F.3d at 204.

The United States Supreme Court has emphasized that “even a strong case for [habeas] relief

does not mean the state court’s contrary conclusion was unreasonable.” See Lockyer v. Andrade, 538

USS. 63, 75 (2003). Rather, a petitioner must show “that the state coutt’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v.

16

Richter, 562 U.S. 86, 103 (2011). Here, Smith’s claim of ineffective assistance is neither “strong” nor

“beyond any possibility for fairminded disagreement.” To the contrary, a careful review of the state

court record reveals that the Superior Court applied the Strick/and standard to the facts at hand in a

fait and reasonable manner. Smith cites no Supreme Court decision warranting a different outcome

ot which the Superior Court unreasonably applied. Accordingly, habeas telief is unwarranted as to

Smith’s second ground for relief.

F. Ground Three Does Not Merit Relief.

In Ground Three, Smith complains that his trial counsel was ineffective for not using a

preemptory challenge to excuse a local newspaper editor from the jury. ECF No. 4, p. 8. Smith

ptesented this issue to the Superior Court on appeal from the dental of his PCRA petition and, thus,

it has been properly presented and exhausted. In his brief to the Supetior Court, Smith framed the

issue as one of

Layered ineffective assistance of counsel for failing to raise a biased

juror claim where the Editor of the local newspaper published nine

(9) front page stories of Appellant’s case and was sitting as the jury

foreman for failing to litigate the claim?

ECF No. 12-1, p. 66. The Superior Court noted the issue, recounting that

Appellant, in his fifth issue, argues that Juror 8, a newspaper editor

and foreperson of the jury, should have been stricken because it was

likely he obtained outside information about the case. He alleges two

newspapers at which Juror 8 worked published stories about the

ctime. Appellant’s Brief at 25. He notes that although the trial court

asked whether Juror 8 could be fair and impartial, no further

questions were asked regarding the information he obtained. Id.

Appellant further suggests that he failure to strike Juror 8 constitutes

“structural error” dur to the juror’s alleged bias. Id.

ECF No. 12-1, p. 235. The Superior Court denied relief.

First, the Superior Court observed that the trial court, during voir dire, was cognizant of the

amount of media covetage Smith’s case had generated. Id. at p. 238. The trial court then specifically

inquited about the effect and pervasiveness of that coverage with Juror 8:

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The Court: I mean, you are the editor, right?

Juror 8: One of them.

The Coutt: Obviously you have read about it in the paper.

You don’t necessarily believe everything in

that newspaper, do your

Juror 8: Yes, Your Honor.

The Coutt: Does counsel want to inquite.

Defense Counsel: No.

Id. at 237. Trial counsel did not object to Juror 8 sitting on the jury. Id. The Superior Coutt also

noted that, at the PCRA heating, Smith’s defense counsel expressed a strategic reason for keeping

Juror 8 on the panel. Counsel testified that

The profile I was looking for was certainly I didn’t want elderly

people on that jury. When you ate making these assessments, it’s

tough ... I felt that if they were to hear certain facts that would

probably elicit a wrong attitude towards my client. We were talking

about drugs, tattoos, money, weapons, knives, possibly guns, injuries

to a victim, and I thought a conservative crowd would shut down and

not keep eyes and eats open. So, I was looking for a younger kind of

juror, someone from 25 to 45, educated, who would be able to follow

instructions, listen to the attorneys, know that the case was open until

they got the case in the juty room. I also had to be careful too with

male versus female gender. At this point, I was looking for more

male-oriented jurors than female. Again, this is probably going to

sound wrong, but gender, I was worried that females hearing the type

of activities being suggested might take that in the wrong way.

Id. The Superior Court, citing Commonwealth v. Tedford, 900 A.2d 1 (Pa. 2008), analyzed Smith’s claim

under S7ick/and, noting that “[t]he purpose of voir dite 1s to ensure the empaneling of a fair and

impartial jury capable of following instructions of the trial court.* Even exposure to outside

information does not ineluctably mean that a jury 1s unfair and partial.”” ECF No. 12-1, p. 236

® As discussed above, both the Pennsylvania Supreme Court and the Third Circuit Court of Appeals have recognized

that the standard for ineffective assistance of counsel under Pennsylvania law is the same as the Strick/and standard.

Therefore, for the purposes of simplicity and clarity, the Court will refer only to the Strick/and standard.

18

(citations omitted). Reviewing Smith’s challenge, the Superior Court determined that he failed to

establish the requisite prejudice under Swick/and. The Superior Court noted that the trial court

recognized the amount of publicity associated with the case and asked the venire about their

knowledge of the case and whether they could be impartial. Id Indeed, several potential jurors

indicated that they tread about Smith’s case in the newspaper. Jd. Still others were excused for cause

given theit personal knowledge of the case. Id. And Juror 8 was specifically questioned about his

knowledge and exposure to the case given his job as a local newspaper editor. The Superior Court

further observed that trial counsel “did not object for cause and did not separately exercise a

peremptory strike after the pool was narrowed to thirty prospective jurors.” Id. at p. 237. The

Superior Court noted the reason for this: “trial counsel explained that he did not seek to strike Juror

8 based on his belief that it was necessary to avoid conservative jurors and seat jurors who could be

receptive to [Smith’s] alternative lifestyle, including [Smith’s] ownership of a tattoo parlor ... [and

Smith’s] ownership of pit bulls.” Jd Given this explanation, the Superior Court concluded that

Smith was not prejudiced.

The Superior Court’s determination that Smith was not prejudiced was not an objectively

unreasonable application of Strickland, nor was it based on an unreasonable determination of the

facts in light of the evidence. The Court applied the correct legal standard, applying the Strickland

analysis. ‘hus, left for this Court is an analysis of whether the Superior Court’s adjudication of this

claim was an “unreasonable application of S*ickland’ ot “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the state court

ptoceeding.” 28 U.S.C. § 2254(d)(1)-@). In undertaking this analysis, this Court is mindful that the

“state court must be granted deference and latitude that are not in operation when the case involves

review under the S#zck/and standard itself.” Harrington, 132 S. Ct. at 785.

19

In rejecting Smith’s criticism of his trial attorney’s jury selection process, the Superior Court

noted that trial counsel had articulated a reasonable trial strategy. See Commonwealth v. Smith, 2016

WL 5419813, *14. The Superior Court concluded that trial counsel had a “reasonable basis for

accepting Juror 8.” Id. at *15.

Moreover, Smith’s underlying claim that Juror 8 was biased 1s meritless. The applicable

federal law guarantees every criminal defendant “the right to a ... trial [] by an mpartal jury.” USS.

Const. Amend. VI. Complementing this right are the protections afforded by the Due Process

Clause, which require “that, if a jury is to be provided [ ], regardless of whether the Sixth

Amendment tequites it, the jury must stand impartial and indifferent to the extent commanded by

the Sixth Amendment.” Morgan v. I/iinois, 504 U.S. 719, 727 (1992). Voir dite examination serves to

protect the right to an impartial jury by providing the parties a means of uncovering juror bias.

v. Alabama ex rel. T.B., 511 U.S. 127, 143-44 (1994). Bias that emerges in response to voir dire

questioning can lead to excusal of a juror for cause or may facilitate the parties’ exercise of

peremptory strikes. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984). Courts have

distinguished between two types of challenges for cause: those based on actual bias, and those based

on implied bias. United States v. Mitchell, 690 F. 3d 137, 142 Grd Cir. 2012).

Smith contends that Juror 8 should have been challenged for actual bias. Smith asserts that

the newspaper editor had “written several articles about this case, and trial counsel knew this, but

still let him be on the jury.” ECF No. 18, p. 3-4. To “rebut the presumption of a prospective

jutor’s impartiality,” it is not enough for a defendant to point to “the mete existence of any

preconceived notion as to the guilt or innocence of the accused.” Irvin v. Dowd, 366 U.S. 717, 723

(1961). Rather, a juror is deemed impartial if he can set aside his impression or opinion and render a

verdict based on the evidence presented in court. Id Hete, Smith has not shown that the

challenged juror was biased against him. First, the challenged juror did not express any partiality

20

against Smith himself. He assured the trial judge that any past experience in connection to the case

would not impact his ability to be fair in Smith’s case. See Murphy v. Florida, 421 U.S. 794, 802 (1975).

Moreover, as summarized previously, trial counsel did not object to Juror 8 as a member of the

panel and later testified that he had a strategic reason for not doing so. Therefore, trial counsel did

not perform deficiently, and Smith has not shown that the jury was biased.

Accordingly, the Superior Coutt’s adjudication of Smith’s ineffective assistance of counsel

claim for not objecting to this particular juror was neither an “unreasonable application of

Strickland’ nor did it “result[ | 1n a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the state proceeding.” See, ¢.g., Nalls v. Commonwealth, et □□□

2014 WL 896630, *16 (W.D. Pa. Mar. 6, 2014). Accordingly, habeas relief is unwarranted as to this

claim.

G. Ground Four Does Not Metit Relief.

As a fourth ground for relief, Smith contends that his trial counsel was ineffective for not

moving to supptess a video which he asserts improperly provided the jury with evidence of his prior

ctiminal record. ECF No. 4, p. 10. At trial,

...a DVD of Appellant’s statement to police was played to the jury.

During the playing of the video recording, trial counsel requested a

sidebar, at which time he requested a mistrial. The portion

ptompting the request was an exchange between Appellant and

Lieutenant Richard Goldsmith, when Appellant asked why an officer

had his gun drawn when taking him into custody. Lieutenant

Goldsmith replied that it was a felony arrest and added “Donny, I

know your record.” The court denied the motion for mistrial and

trial counsel refused a cautionary instruction because he did not want

to highlight the reference.

ECF No. 12-1, pp. 240-41.

Smith raised this issue on direct appeal. He contended that the trial court erted by failing to

grant his motion for a mistrial. See ECF No. 12-1, pp. 69, 242. After noting that the “mere passing

reference to priot criminal activity is insufficient to establish improper prejudice itself,” the Superior

21

Court declined to address the issue on the merits because Smith’s appellate counsel failed to file a

complete tecord on appeal. Notably absent from the record was the DVD itself. Id. at 243. The

Superior Court held that

[w]ithout the ability to review the DVD, our review of this issue is

significantly hampered, as without the DVD, we cannot appropriately

consider whether Smith was prejudiced by the playing of the remark

ot whether, despite the Commonwealth’s failure to adhete to the

agreement, the remark constituted a mere passing reference.

Id. at p. 244. The Superior Court then concluded that, because “the responsibility rests upon the

appellant to ensure that the record certified on appeal is complete in the sense that it contains all of

the materials necessary for the reviewing court to perform its duty,” Smith “has waived this issue for

failing to include the DVD in the certified record.” Id. at p. 243 (citations omitted).

The mannet in which Smith raised the issue in post-conviction proceedings and the way the

claim was addressed by the state courts is convoluted. It may be that Smith’s claim was

misconstrued by PCRA counsel and the PCRA court. For example, Smith claimed in his PCRA

petition that trial counsel was ineffective for failing to move to suppress the video. ECF No. 12-1,

p. 71. But PCRA counsel, in his motion to withdraw, did not discuss the purported failure to file a

suppression motion and characterized the issue differently, focusing on Smith’s post-arrest silence as

shown on the video recording. PCRA counsel argued that Smith

seeks to telitigate an issue taken before the Superior Court on direct

appeal ... This matter was taken up on ditect appeal and denied ...

[I]t is undersigned counsel’s position that this entire issue is waived as

being litigated on direct appeal or being so addressed. Petitioner

simply tries to recycle the issue and take a second bit [sic] by adding

his proposed issues of invalid Mzranda and post attest silence.

Id. at p. 244. The PCRA court concurred with PCRA counsel, noting that on direct appeal the

Superior Court “dismissed this claim ... after we refused [trial counsel’s] motion for mistrial, counsel

tefused the offer of a cautionary instruction.” Id. The PCRA court did not discuss a failure to file a

supptession motion. The Superior Court found the claim waived because Smith “did not object or

22.

taise a sepatate claim of ineffective assistance of PCRA counsel based on this issue [in his objection

to PCRA counsel’s no-merit brief]. Moreover, Appellant’s Rule 1925(b) statement did not fairly

indicate a claim based on this issue ... Accordingly, we conclude that Appellant has failed to

ptesetve and establish error based on this issue.” Id. at p. 245. Thus, it cannot conclusively be

ascertained whether the issue of trial counsel’s ineffectiveness for failing to file a suppression motion

was exhausted in state coutt.

This Court need not resolve the more complex issue of procedural default, however, if it

determines that Smith’s ineffectiveness claims have no merit, even under a de novo review. Lambrex v.

Singletary, 520 U.S. 518, 525 (1997) (where analysis of procedural default is complex, the court may

skip the issue and proceed to the merits). See a/so Brian R. Means, Federal Habeas Manual § 9B:5

(2019) (“[W]here the procedural default question 1s relatrvely complicated or when relief is due to be

denied even if claims are not procedurally barred, a federal court is authorized to skip over the

procedural default issue and proceed to deny the claim on the metits.”).’ That course is followed

here. See, Szege/ v. Giroux, 2019 WL 1014730, at *7 (WW.D. Pa. Mar. 4, 2019), certeficate of

appealability denied sub nom. Siegel v. Superintendent Albion SCI, 2019 WL 4875466 (3d Cir. Sept. 16,

2019).

The Supreme Coutt set the standard for evaluating an ineffective assistance of counsel claim

in Stickland v. Washington, 406 U.S. 668 (1984). To establish counsel’s ineffective assistance under

Strickland, a petitioner must demonstrate that his attorney’s performance (1) “fell below an objective

standard of reasonableness,” and (2) that counsel’s deficient performance prejudiced the defendant.

Id. at 688, 692. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s

Supreme Court held “[wle do not mean to suggest that the procedural-bar issue must be resolved first; only that it

ordinarily should be. Judicial economy might counsel giving the Teague question priority, for example, if it were easily

resolvable against the habeas petitioner, wheteas the procedutal-bar issue involved complicated issues of state law.”

Lambrix, 520 U.S. at 520. See also Bell v. Cone, 543 U.S. 447, 451 0.3 (2005) (citing § 2254(b)(2)).

23

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

telied on as having produced a just result.” Id. at 686.

Smith has not satisfied Strick/and’s first requirement: trial counsel’s performance did not fall

below an objective standard of reasonableness. A court, in determining whether counsel’s

performance fell below an objective standard of reasonableness, must evaluate “whether counsel’s

assistance was teasonable considering all the circumstances.” Id. at 688. In applying the Strickland

test to counsel’s performance, a court must be “highly deferential,’ and “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.’ ”’ Id. at 689. ‘The Court must not use the benefit of

hindsight to second-guess strategic decisions made by counsel unless they are unreasonable. Id. at

690. The Supreme Court noted that “[t]here are countless ways to provide effective assistance in any

given case.” Id. at 689. Thus, to establish ineffective assistance of counsel, a petitioner has to

“overcome the presumption that ... the challenged action ‘might be considered sound trial strategy.”

Id. (citation omitted).

At the PCRA hearing, Smith’s trial attorney testified that he did not act to suppress the video

because it demonstrated to the jury Smith’s cooperation with law enforcement. Trial counsel also

testified that he did not object to the video being played because it allowed him to put Smith’s

version of events before the jury without Smith having to testify. Id.

Thus, counsel employed a trial strategy that was geared towards putting Smith’s demeanor at

the time of his arrest as well as his version of the events before the jury without Smith having to

testify. “Strickland and its progeny make clear that counsel’s strategic choices will not be second-

guessed by post-hoc determinations that a different trial strategy would have fared better.” Ro/an v.

Vaughn, 445 F.3d 671, 681-82 3d Cir. 2006) (citing Strickland, 446 U.S. at 689). This decision might

24

be considered sound trial strategy. See, e.g. Rojas v. Capozza, 2017 WL 9288171, *10, n.10 (E.D. Pa.

Nov. 21, 2017) (petitioner did not show that the decision not to object to the video ot request a

curative instruction was not sound trial strategy). Thus, counsel’s decision not to object at trial did

not fall “below an objective standard of reasonableness under the circumstances.” Siegel v. Giroux,

2019 WL 1014730, *11 (W.D. Pa. Mar. 4, 2019) (citing Strickland, 466 U.S. at 688). Smith is,

therefore, not entitled to habeas relief as to this claim.

Vv. Certificate of Appealability

AEDPA codified standards governing the issuance of a certificate of appealability for

appellate review of a district court’s disposition of a habeas petition. It provides that “[uJnless a

citcuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of

appeals from ... the final order in a habeas corpus proceeding in which the detention complained of

atises out of process issued by a State court[-]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a]

certificate of appealability may issue ... only if the applicant has made a substantial showing of the

denial of a constitutional night.” Id. § 2253(c)(2). “When the district court denies a habeas petition

on procedural grounds without reaching the prisonet’s underlying constitutional claim, a [certificate

of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct in its procedural

ruling.” Svack, 529 U.S. at 484. Applying that standard here, jurists of reason would not find it

debatable whether Smith’s claims should be dismissed because lack metit or are procedutrally

defaulted. Accordingly, the Court will not issue a certificate of appealability on any of Smith’s six

grounds for relief.

25

VI. Conclusion

For the reasons set forth herein, Smith’s Petition is dismissed, and no certificate of

appealability should issue. An appropriate ordet wee ;

RICHARD A. LANZILLO

United States Magistrate Judge

ORDER

AND NOW, this 12th day of May, 2019, for the reasons set forth in the Memorandum filed

contemporaneously herewith, IT IS HEREBY ORDERED that Petitioner Donald Smith’s claims

fot federal habeas corpus relief are DISMISSED with prejudice and a certificate of appealability is

DENIED as to each claim. The Clerk of Court is directed to mark this case CLOSED as of this

date.

RICHARD A. LA &j 2

United States Magistrate Judge

26