# SMITH v. MAHALLY

> District Court, W.D. Pennsylvania · May 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10415629

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** May 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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:
17

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10415629. Public record. Not legal advice.