THOMAS v. FERGUSON

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

JASON P, THOMAS, )

)

Petitioner ) Case No. 1:18-cv-00307

)

vs. ) .

) RICHARD A. LANZILLO

TAMMY FERGUSON, )

THE ATTORNEY GENERAL OF THE _ ) UNITED STATES MAGISTRATE JUDGE

STATE OF PENNSYLVANIA, and )

DISTRICT ATTORNEY OF ) MEMORANDUM OPINION AND

ERIE COUNTY ) ORDER ON PETITION FOR WRIT OF

) HABEAS CORPUS (ECF No. 6)

Respondents )

MEMORANDUM OPINION AND ORDER

Before the Court is a petition for a writ of habeas corpus filed by Jason P. Thomas pursuant to 28

U.S.C. § 2254. ECF No. 6. For the reasons that follow, the petition will be denied.!

1. Background

A review of the record and the criminal docket sheet for Thomas’s underlying conviction in

Commonwealth v. Thomas, No. CP-25-CR-0001973-2014 (Erie Cnty. Com. P1.),’ reveals the following

relevant facts.

On March 5, 2015, Thomas was convicted by a jury of first-degree murder, aggravated assault,

robbery, two counts of receiving stolen property, two counts of possessing an instrument of crime, three

counts of recklessly endangering another person, and theft by unlawful taking. On April 22, 2015, Thomas

! The parties have consented to the jurisdiction of a United States Magistrate Judge.

2 The criminal docket is available at https://ujsportal.pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP-25-CR-

0001973-2014&dnh=WzthTu2ZrrS%2bZdGpocp4 1A%3d%3d (last visited January 5, 2021).

was sentenced to life without parole plus a consecutive sentence of 7% to 15 years’ imprisonment. ‘He did

not file post-sentence motions.

On May 15, 2015, Thomas filed a direct appeal. The Pennsylvania Superior Court affirmed the

judgment of sentence on March 11, 2016. On April 1, 2016, Thomas filed a petition pursuant to the

Pennsylvania Post Conviction Relief Act (““PCRA”), 42 Pa.C.S.A. § 9541 et seq. The petition was

dismissed on November 18, 2016. Thomas appealed the order dismissing the petition on December 19,

2016. The Pennsylvania Superior Court affirmed the order on October 17, 2017.

Thomas filed the instant petition for a writ of habeas corpus on October 2, 2018. ECF No. 1-1.

Respondents filed a response to the petition on July 15, 2019. ECF No. 21. Thomas filed a traverse on

March 23, 2020. ECF No. 34. Thomas also filed a “Motion Stating Facts And PA.R.A.P. That’s

Mandatory Supporting Petitioner’s Claims On Habeas Corpus Filed On 10-05-2018,” on December 11,

2020, ECF No. 35, which offers additional support for the petition, but does not seek relief other than that

sought in the petition.

II. Analysis

A. AEDPA Statute of Limitations

Respondents argue, inter alia, that the petition should be dismissed as untimely. ECF No. 21 at 3-

4, The Antiterrorism and Effective Death Penalty Act of 1996 (*“AEDPA”) imposes a one-year limitations

period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and provides:

(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of a

State court. The limitation period shall run from the latest of —

(A) _ the date on which the judgment became final by the

conclusion of direct review or the expiration of the

time for seeking such review;

(B) _ the date on which the impediment to filing an

application created by State action in violation of

the Constitution or laws of the United States is

removed, if the applicant was prevented from filing

by such State action;

(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if

that right has been newly recognized by the

Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) _ the date on which the facts supporting the claim or

claims presented could have been discovered

through the exercise of due diligence.

(2) The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period

of limitation under this section.

28 U.S.C. § 2244(d).

In analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year

limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the

“trigger date” for the one-year limitations period pursuant to section 2244(d)(1). Caldwell v. Mahally, et

al., 2019 WL 5741706, *5 (W.D. Pa. Nov. 5, 2019). Second, the court must determine whether any

“properly filed” applications for post-conviction or collateral relief were pending during the limitations

period that would toll the statute pursuant to section 2244(d)(2). Jd. Third, the court must determine

whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented.

Td.

1. Trigger Date Calculation

Thomas sets forth five grounds for relief in his petition, all of which are based on the ineffective

assistance of his trial counsel. ECF No. 6-1. These claims do not implicate newly enunciated

constitutional rights or facts that were discovered later. Furthermore, there were no state-created

impediments that prevented Thomas from raising these claims sooner. Consequently, the “trigger date”

for these claims is the date on which his judgment of sentence became final. See Swartz v. Meyers, 204

F.3d 417, 419 (3d Cir. 2000) (noting that a judgment becomes final at the conclusion of direct review or

the expiration of time for seeking such review). .

Because Thomas did not file post-sentence motions, his judgment of sentence became final on or

about April 11, 2016, at the expiration of the time for filing with the Pennsylvania Supreme Court a

petition for allowance of appeal from the Pennsylvania Superior Court’s affirmance of the judgment of

sentence. Pa.R.A.P. 1113(a). The one-year limitations period for filing a habeas corpus petition began to

run on that date. 28 U.S.C. § 2244(d)(1)(A). Accordingly, Thomas had to file any federal habeas petition

by April 11, 2017. Because the instant habeas petition was filed on October 2, 2018, his petition is

statutorily time-barred. Given this deficiency, the Court must determine whether he can take advantage

of the statutory tolling provision set out in Section 2244(d)(2).

2. Statutory Tolling

Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a

“properly filed” state post-conviction proceeding. .

Thomas filed his PCRA petition on April 1, 2016, before one-year limitations period had begun to

run. That PCRA petition was “properly filed,” thus, the proceedings thereupon tolled the statute of

limitations until they were concluded on October 17, 2017, when the Pennsylvania Superior Court

affirmed the dismissal of the PCRA petition. The statute of limitations started to run the following day,

October 18, 2017. Pursuant to the prisoner mailbox rule, see Houston v. Lack, 487 U.S. 266 (1988),

Thomas filed the instant petition on October 2, 2018, 349 days later. Thus, his petition is timely.

B.. Exhaustion

Respondents next argue that all of Thomas’s grounds for relief are unexhausted. ECF No. 21 at

4-5,

As this Court has explained:

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'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 144 L. Ed.

2d 1 (1999). A petitioner satisfies the exhaustion requirement “only if [the petitioner] can

show that [he or she] 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

courts ... by invoking one complete round of the State's established appellate review

process.” O'Sullivan, 526 U.S. at 845.

To “fairly present” a claim 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 is being asserted.” Bennett v. Superintendent Graterford SCI, 886 F.3d 268,

280 (3d Cir. 2018) (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). A

petitioner may exhaust a federal claim either by raising it on direct appeal or presenting it

in post-conviction PCRA proceedings. O'Sullivan, 526 U.S. at 845. Either way, the

petitioner must present his federal constitutional claims “to each level of the state courts

empowered to hear those claims.” Jd. at 847 (“requiring 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 procedure in the State”). “Once a petitioner’s federal claims

have been fairly presented to the state’s highest court, the exhaustion requirement is

satisfied.” Stoss v. Estock, 2019 U.S. Dist. LEXIS 83240, 2019 WL 2160464, at *3 (M.D.

Pa. May 17, 2019) (citing Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056, 103 L.

Ed. 2d 380 (1989)).

Dean v. Tice, 2020 U.S. Dist. LEXIS 96328, at *12-13 (W.D. Pa. June 1, 2020).

Thomas did not raise before the state court any of the claims of trial counsel’s ineffectiveness

which constitute the grounds of this petition. He bypasses this omission by nominally couching each □□

the claims as PCRA counsel’s ineffectiveness for failure to raise the claims of trial counsel’s

ineffectiveness in the PCRA petition.

The relevant law is as follows:

The general rule is that, because there is no federal constitutional right to counsel in a

PCRA proceeding, a petitioner cannot rely upon PCRA counsel’s ineffectiveness to

overcome the default of a federal habeas claim. See, e.g., Coleman [v. Thompson], 501

U.S. [722] at 752-54 [1991]; Davila v. Davis, 137 S. Ct. 2058, 2062, 198 L. Ed. 2d 603

(2017) (“An attorney error does not qualify as ‘cause’ to excuse a procedural default unless

the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner

does not have a constitutional right to counsel in state postconviction proceedings,

ineffective assistance in those proceedings does not qualify as cause to excuse a procedural

default.”). In Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309, 182 L. Ed, 2d 272 (2012), the

Supreme Court announced a limited, but significant, exception to this rule. Under Martinez,

a Pennsylvania prisoner may argue that his PCRA counsel “caused” the default of a claim

that trial counsel was ineffective. 566 U.S. at 9; Workman vy. Sup't Albion SCI, 915 F.3d

928, 937 (Gd Cir. 2019), The holding in Martinez is limited to defaulted ineffective-

assistance-of-trial-counsel claims. See, e.g., Davila, 137 S. Ct. at 2062-70. It does not

apply to any other type of claim. Jd.

Under Martinez, in order to avoid the default of an ineffective-assistance-of-trial-counsel

claim, Petitioner must establish two things: (1) the ineffective-assistance-of-trial-counsel

claim is “substantial”; and (2) [PCRA counsel] was ineffective within the meaning of

Strickland [v. Washington, 466 U.S. 668 (1984)]. Martinez, 566 U.S. at 14; Workman, 915

F.3d at 937. ...

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 considers

whether to grant a certificate of appealability. Jd Thus, Petitioner “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claim

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed.

2d 542 (2000); Workman, 915 F.3d a 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 Miller-El v. Cockrell,

537 USS, 322, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003).

Hensley v. Cappoza, 2019 WL 5457396 at *6 (W.D. Pa. Oct. 24, 2019).

The Strickland test is explained as follows:

Ineffective assistance of counsel claims are governed by the familiar standard set forth by

the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984). To prevail on a claim of ineffective assistance under Strickland, the

Petitioner has the burden of establishing that his trial “counsel's representation fell below

an objective standard of reasonableness.” 466 U.S. at 688. “This requires showing that

counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

by the Sixth Amendment.” /d. at 687. Importantly, the Supreme Court emphasized that

“counsel should be ‘strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment[.]’” Burt v.

Titlow, — U.S. — , 134 S.Ct. 10, 17, 187 L. Ed. 2d 348 (2013) (quoting Strickland, 466

U.S. at 690). See also Harrington v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 178 L. Ed.

2d 624 (2011) (“A court considering a claim of ineffective assistance must apply a ‘strong

presumption’ that counsel’s representation was within the “wide range’ of reasonable

professional assistance.”) (quoting Strickland, 466 U.S. at 689).

The Supreme Court also instructed:

“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559

USS. 356, 371, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284 (2010). An ineffective-

assistance claim can function as a way to escape rules of waiver and forfeiture and

raise issues not presented at trial, and so the Strickland standard must be applied with

scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very

adversary process the right to counsel is meant to serve. Strickland, 466 U.S. at 689-

690, 104 S. Ct. 2052. Even under de novo review, the standard for judging counsel’s

representation is a most deferential one. Unlike a later reviewing court, the attorney

observed the relevant proceedings, knew of materials outside the record, and

interacted with the client, with opposing counsel, and with the judge.

Richter, 562 U.S. at 105.

Strickland also requires that the Petitioner demonstrate that he was prejudiced by his trial

counsel’s alleged deficient performance. This places the burden on him to establish “that

there is a reasonable probability that, but for counse!’s unprofessional errors,” the result of

his trial “would have been different.” Strickland, 466 U.S. at 694. As the United States

Court of Appeals for the Third Circuit explained:

[The Petitioner] “need not show that counsel’s deficient performance ‘more likely

than not altered the outcome of the case’ - rather, he must show only ‘a probability

sufficient to undermine confidence in the outcome.’” Jacobs v. Horn, 395 F.3d 92,

105 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 693-94). On the other hand, it is

not enough “to show that the errors had some conceivable effect on the outcome of

the proceeding.” [Richter], 131 S.Ct. at 787 (citing Strickland, 466 U.S. at 693).

Counsel’s errors must be “‘so serious as to deprive the defendant of a fair trial.” Jd.

at 787-88 (citing Strickland, 466 U.S. at 687). The likelihood of a different result

must be substantial, not just conceivable. Jd.

Brown v. Wenerowicz, 663 F.3d 619, 630 (3d Cir. 2011).

Howard v. Delbalso, 2017 WL 3446826, at *3 (W.D. Pa. Aug. 10, 2017) (footnote omitted).

The Court will review the grounds under the law set forth above to evaluate whether Thomas can

avoid procedural default of his claims of trial counsel’s ineffectiveness.

C.° Ground One: Ineffective assistance of trial counsel for failure to raise double

jeopardy

Thomas first asserts that his trial counsel was ineffective for failing to assert double jeopardy when

Thomas was tried and convicted by a second jury after a first one had been empaneled and sworn in, ECF

No. 6-1 at 2-3. Thomas alleges:

On January 20, 2015, ajury was selected, empaneled and sworn in and Petitioner’s

trial was to start on January 21,2015. However, on January 21, 2015, attorney John

Moore (counsel for the Petitioner) suffered a medical emergency. Instead of

consulting with the Petitioner and motioning the court, attorney Moore contacted

attorney Jack Daneri (the Commonwealth’s attorney) indicating he could not

proceed to trial as scheduled. Subsequently, attorney Daneri filed a motion to

continue this case, and without objection or consultation with counsel, the panel

selected and sworn in on January 20, 2015, was dismissed.

Id. at 2.

Relying on Love v. Morton, 112 F.3d 131 (3d Cir. 1997), Thomas argues that his trial counsel was

ineffective for failing to object to the empaneling of a second jury on the grounds that his procedural due

process and Fifth Amendment rights to be free of double jeopardy were violated. ECF No. 7 at 7-9.

Thomas’s argument fails for multiple reasons. First, his assertion that the first jury was sworn in on

January 20, 2015, is unsupported by the record. Thomas cites only to a Motion to Continue Trial filed on

February 3, 2015 (concerning an unrelated subsequent delay of trial), in which District Attorney Daneri

described the procedural history of the case and avers that, following Attorney Moore’s medical

emergency on January 21, 2015, “the panel of jurors (not yet sworn in) was dismissed.” ECF No. 7-1 §

10. Ifthe jury was not sworn in, jeopardy did not attach. Crist v. Bretz, 437 U.S. 28, 36 (1978).

However, even assuming arguendo that jeopardy had attached on January 20, 2015, the claim still

fails. As the United States Court of Appeals for the Third Circuit set forth in Love:

Our jurisprudence does not prohibit retrial following termination if a defendant

consents or waives the right to assert double jeopardy, or when there is manifest

necessity to terminate the first trial. Oregon v. Kennedy, 456 U.S. 667, 673, 72 L.

Ed. 2d 416, 102 S. Ct. 2083 (1982); Arizona v. Washington, 434 U.S. 497, 54 L.

Ed. 2d 717, 98 S. Ct. 824 (1978); United States v. Dinitz, 424 U.S. 600, 47 L. Ed.

2d 267, 96 S. Ct. 1075 (1976); Illinois v. Somerville, 410 U.S. 458, 35 L. Ed. 2d

425, 93 S. Ct. 1066 (1973).

Love, 112 F.3d at 136-37.

In Love, the trial judge abruptly declared a mistrial due to the sudden death of his mother-in-law

during trial. The trial judge entertained no input from counsel in the decision. The Court of Appeals

found that the mistrial had not been a manifest necessity and, further, that defense counsel had not given

express or implied consent to the mistrial, thus double jeopardy prohibited Love’s prosecution at a

subsequent trial.

Thomas’s recitation of the relevant events reveals that his trial counsel relayed to the district

attorney his inability to proceed on the morning of trial. Trial counsel’s actions show, at a minimum,

implied consent to the continuation of trial to a later date. Thus, the facts are distinguishable from those

in Love. There was no basis upon which Thomas’s trial counsel could have raised a claim of double

jeopardy when he consented to the continuation of the trial. Trial counsel could not have been ineffective

for failing to make a baseless claim; thus, the claim of trial counsel’s ineffectiveness has no merit. Because

Thomas has not established that the ineffective-assistance-of-trial-counsel claim is substantial, he cannot

avoid procedural default of this claim.

D. Ground Two: Ineffective assistance of trial counsel for failure to move to suppress

statements

Thomas next argues that trial counsel should have moved to suppress the statements that Thomas

made when he was detained but not provided with Miranda warnings. ECF No. 6-1 at 3-4. Specifically,

he asserts: . □

On April 8, 2014, the Erie Police Department (“EPD”) received 911 calls from the

Petitioner indicating that he had been robbed and shot and needed help.

Subsequently, EPD arrived at the scene and upon arrival they noticed that the

Petitioner was shot. Thereafter, Petitioner was transported to UPMC Hamot by

ambulance and was accompanied by Detective Jason Triana (“Det. Triana”). While

being transported to Hamot hospital, and without providing a Miranda warning,

Det. Triana began to interview the Petitioner.

Once Petitioner arrived at Hamot hospital, he was immediately rushed into surgery

due [to] the nature of his wounds. Following the surgery, however, the Petitioner

was cuffed to the bed. At this time, the Petitioner was interviewed by Detective

Oborski (“Det. Oborski’”) and Kemling (“Det. Kemling[”]). Despite being cuffed

to the bed, the Petitioner was not provided a Miranda warning.

The statements provided by the Petitioner to the Detectives [were] material as such

was used to secure the Affidavit of Probable Cause in initiating Petitioner’s arrest.

Additionally, the illegally obtained information was admitted as substantive

evidence against the Petitioner at his trial. See, (N.T. 3/2/15 at 126-189).

ECF No. 6-1 at 3-4.

A pre-trial motion to suppress these relevant statements would not have had any effect on

Thomas’s arrest. To the extent that Thomas is asserting that he was prejudiced by trial counsel’s failure

to prevent these statements from being admitted at trial, he has failed to do so.

At this point, a review of the evidence adduced at trial, as summarized by the Pennsylvania

Superior Court, will be enlightening. In reviewing the sufficiency of the evidence supporting the verdict

in Thomas’s case, the Superior Court found as follows:

On April 8, 2014, [Thomas] shot and stabbed Stephon Bibbs (“Bibbs”), who lived

in the apartment above [Thomas], on the landing of their building’s steps.

[Thomas] then stole Bibbs’ wallet and clothing. The gun used in the murder was

stolen and two other individuals were inside the residence when the murder

occurred.

In essence, [Thomas] argues that he was a victim and not the perpetrator of the

offense. He argues that two men, one Caucasian and one African-American, shot

him and Bibbs. He argues that the gun used in the murder belonged to him until

the day before the crime when he illegally sold it.

We conclude that this argument is wholly frivolous. [Thomas] admitted that the

gun belonged to him until he allegedly sold it eight hours prior to the murder.

Myisha Coles (“Coles”), who was [Thomas’s] live-in girlfriend, stated that she did

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not see any third-parties at the scene of the shooting or fleeing the shooting. Within

one minute of police receiving a 911 call they set up a perimeter around the scene

and did not witness any individuals fleeing or any individuals that matched the

description of the two alleged perpetrators [Thomas] described.

The forensic evidence was inconsistent with [Thomas’s] version of events and

consistent the prosecution’s version of events. Specifically, Bibbs’ bloodstained,

empty wallet was found in the duct work of [Thomas’s] apartment. Also in [his]

duct work were two spent cartridges fired from the murder weapon. Currency with

Bibbs’ blood was also found in [Thomas’s] couch. A portion of the knife used to

stab Bibbs[] was found underneath pots and pans in [Thomas’s] apartment.

[Thomas’s]| footprint was found in the blood at the crime scene. The footprint was

pointed in a direction that was inconsistent with [Thomas’s] version of events but

was consistent with the Commonwealth’s version of events. Bibbs’ blood was also

found on Bibbs’ door - which was inconsistent with [Thomas’s] version of events

but consistent with the Commonwealth’s version of events.

Furthermore, the only evidence supporting [Thomas’s] version of events, his own

trial testimony, contradicted the four previous statements [Thomas] provided

police. Each time [he] spoke to police, or testified at trial, his story changed. The

jury reasonably concluded that [Thomas’s] continually evolving story proved [he]

was fabricating his version of events. Based upon the totality of this circumstantial

evidence, the jury reasonably determined that [Thomas] was not the victim of a

botched robbery attempt but was instead the murderer.

ECF No. 22-1 at 27-28, 31-32

Even assuming arguendo that the statements Thomas gave on the way to the hospital and at the

hospital were obtained in violation of Miranda, their admission at trial was not necessarily improper. See

Harris v. New York, 401 U.S. 222 (1971) (holding that a defendant who takes the stand may be impeached

by his prior statements even if those statements were obtained in violation of only the prophylactic

Miranda rules). Further, even assuming that the admission of these statements was improper, prejudice

from their admission does not necessarily follow. Thomas must still meet his burden to show such

prejudice. He makes no effort to do so.

Respondents correctly point out that Thomas made multiple statements to the police in addition to

those with which he takes issue. ECF No. 21 at 6-7. On one occasion, Thomas voluntarily presented

himself to the Erie Police Department and said, “I’m here to give my formal statement,” and then

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proceeded to talk to the police for approximately an hour and 40 minutes. ECF No. 22-4 at 154-55.

Thomas attaches no significance to the admission of the statements given on the day of the shooting versus

the admission of his later statements. He further fails to attach any significance to the statements with

regard to the other evidence admitted at trial. In short, Thomas does not set forth any basis upon which

this Court can find that, but for trial counsel’s failure to prevent the admission of the statements, that there

is a reasonable probability that the result of the trial would have been different. Thus, he has failed to

meet his burden under Strickland and has not established that the ineffective-assistance-of-trial-counsel

claim is substantial. Accordingly, he cannot avoid procedural default of this claim.

E. Ground Three: Ineffective assistance of trial counsel for failure to move to

suppress cell phone and computer evidence

Thomas next argues that trial counsel should have moved to suppress evidence obtained from his

cell phone and computer without a warrant. ECF No. 6-1 at 4-5. Specifically, he asserts:

At 1600 on April 8, 2014, Erie Police Department secured a warrant to search the

residence of the Petitioner located in Erie Pennsylvania. Due to the fact Petitioner

was transported to the hospital for his gunshot wound, he was unable to consent to

the search nor was [he] present when the search occurred. However, Myisha Coles

(“Coles”) (Petitioner’s girlfriend) also resided at this location and prior to executing

the search, Erie Police Officers secured her consent. In the course of the search,

Erie Police Officers were able to secure a Laptop Computer and a Sanyo Cell

phone, all belonging to the Petitioner. Prior to securing a warrant to a search of

Petitioner’s password-protected computer and phone, the Erie Police Department

obtained evidence from these items which was presented at Petitioner’s trial.

Id, at 4 (citations omitted).

Respondents assert that the Commonwealth did not present any such evidence at trial. ECF No.

21 at 7. In his traverse, Thomas points to the Commonwealth’s examination of Myisha Coles in which

she was questioned about a video that she had watched on Thomas’s Facebook page. ECF No. 34 at 8.

Indeed, at trial, the Commonwealth asked Myisha Coles if she had “liked” a video Thomas posted to his

Facebook page in which a gun was pictured. ECF No. 22-5 at 40-41. The video was shown to the jury

and admitted as evidence. Jd. at 40, 158. Thomas argues that, “Petitioner’s being seen on a video with a

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gun and drug use, the general criminal proclivity was highly prejudicial as such stigmatize[d] Petitioner

for behavior connected to the charges for which he was on trial....”” ECF No. 34 at 9. Respondents argue

that if any evidence from the contents of the computer and/or cell phone was admitted at trial, it was “far

outweighed by the surrounding incriminating evidence of record.” ECF No. 21 at 7. Respondents are

correct.

Assuming arguendo that the Facebook video was obtained from Thomas’s devices without a

warrant and was inadmissible for this reason, a depiction of Thomas with a gun (and perhaps drug use,

although drug use is not discussed in the trial transcript) could not have been highly prejudicial evidence

in light of Thomas’s own testimony at trial. Among other topics, Thomas testified extensively about his

habit of smoking marijuana with the shooting victim, describing their relationship as follows:

Me and Stephon, we was cool, you know. He was my -- I met him and everything.

We talked. We smoke weed, you know. And I was -- that’s one thing me,and him

always had in common, you know. I let Stephon know, you know, if you got a

blunt, I got you, you know. I was always had marijuana. Got this thing I did, you

know, like I -- and that’s something that we always did. We always smoked a blunt

and play chess.

ECF No. 22-5 at 49.

Thomas also testified about a .45 Ruger handgun that he sold the day before the shooting. Jd. at

55-59. Thomas’s bald assertion of prejudice stemming from a video of him engaged in the same behavior

about which he testified is insufficient to sustain his burden under Strickland. As such, Thomas has not

established that the ineffective-assistance-of-trial-counsel claim is substantial. Accordingly, he cannot

avoid procedural default of this claim.

F. Ground Four: Ineffective assistance of trial counsel for failure to request jury

instruction

Thomas next asserts that his trial counsel was ineffective for failing to request that the jury be

instructed that, in order to find Thomas guilty of second-degree murder, “it had to be established that the

killing had been in furtherance of the underlying robbery.” ECF No. 6-1 at 5. Thomas argues that, “In

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failing to insure that the jury understood the charges against the Petitioner, trial counsel exposed Petitioner

to the danger of being convicted for a crime that the jury did not unanimously agree and had been proven

beyond reasonable doubt.” ECF No. 7 at 17-18.

In support of this argument, Thomas cites to Simmons v. Love, 1996 U.S. App. LEXIS 34786 (3d

Cir. 1995). In Simmons, the United States Court of Appeals for the Third Circuit held that due process

requires that a defendant not be convicted of a crime unless the jury is first informed of the legal definition

of that crime and the facts the prosecution must prove. The Court of Appeals found that there was a

reasonable probability that the defendant, who was convicted of second-degree murder, would not have

been so convicted if the jury had been properly informed of the elements of that crime.

This case is easily distinguishable from Simmons because Thomas was not convicted of second-

degree murder. Thomas was convicted of first-degree murder and he raises no confusion as to the jury’s

understanding of that crime. Thus, even assuming arguendo that the trial court did not properly instruct

the jurors as to the elements of second-degree murder, the prejudice that resulted in Simmons did not occur

in this case.

Again, Thomas has failed to sustain his burden under Strickland, failed to establish that the

ineffective-assistance-of-trial-counsel claim is substantial, and failed to avoid procedural default of this

claim.

G. Ground Five: Ineffective assistance of trial counsel for failure to investigate and

call witnesses

Finally, Thomas asserts that trial counsel was ineffective for failing to investigate and call known

and available witnesses to testify at trial on Thomas’s behalf. ECF No. 6-1 at 7. Although Thomas refers

to “witnesses,” he identifies only one:

On this matter, Petitioner points to a potential witness, Victoria Webber (“Webber”)

who was in residence at 1253 East 27" Street; directly next door to where the crime

occurred. In an article published by the Times News following the murder, Webber

stated, “there was a lot of different men coming in and out of the upstairs apartment”

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and “it looked fishy to [her].” This statement by Ms. Webber in response to

questions regarding the shooting, was entirely consistent with Petitioner’s claim

that other parties were responsible for the crime. As such, Ms. Webber should have

been investigated by Petitioner’s counsel as a potential source of evidence favorable

to Petitioner’s case.

Id. (citation to exhibit omitted).

The article in question states as follows:

Weber, 67, said Bibbs had been a resident in the duplex for about six months.

“There were a lot of different men coming in and out of the upstairs apartment,”

Weber said Tuesday night, “They’d come for about 15 minutes and then leave. It

looked fishy to me.”

ECF No. 6-5 at 2.

Respondents argue that Thomas has failed to assert how Ms. Webber’s testimony would have been

helpful to his defense, particularly in light of the “overwhelming evidence” against him. ECF No. 21 at

7. That is correct.

Again, even assuming arguendo that this witness was available and willing to testify at trial, and

that trial counsel knew or should have known of her existence, Thomas’s claim of ineffectiveness fails on

the prejudice prong of Strickland. The absence of Ms. Webber’s testimony, not about any event or person

she observed on the day of the shooting, but about her general suspicions concerning the activity in the

victim’s apartment during the six months prior to his death, could hardly be so prejudicial that it denied

Thomas a fair trial. The nature of Ms. Webber’s purported testimony begs the question of whether it

would have been admissible at all given its, at best, minimal relevance. In any event, Thomas has again

failed to sustain his burden under Strickland, failed to establish that the ineffective-assistance-of-trial-

counsel claim is substantial, and failed to avoid procedural default of this claim.

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Ii. Conclusion

For the foregoing reasons, the instant petition is without merit. The petition will be denied.

IV. 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 circuit 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 arises 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 right.” Id. §

2253(c)(2). Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack vy. McDaniel, 529 U.S. 473, 484 (2000). Applying that standard here, jurists

of reason would not find it debatable whether Thomas’s claims should be denied for the reasons given

herein. Accordingly, the Court will not issue a certificate of appealability.

An appropriate Order follows.

ORDER

AND NOW, this 13" day of January, 2021, for the reasons set forth in the Memorandum Opinion

filed contemporaneously herewith, IT IS HEREBY ORDERED that Petitioner Jason P. Thomas’s petition

for a writ of habeas corpus is DENIED with prejudice and a certificate of appealability is DENIED. The

“Motion Stating Facts” at ECF No. 35, is also DENIED. The Clerk of Court is directed to mark this case

CLOSED as of this date. .

CHARD A. LANZILLO

United States Magistrate Judge

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