JOHNSON v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

JUSTIN RAPHAEL JOHNSON, )

)

Petitioner ) Case No. 1:19-cv-149

)

VS. )

) RICHARD A. LANZILLO

SECRETARY JOHN WETZEL, ) UNITED STATES MAGISTRATE JUDGE

PA ATTORNEY GENERAL, )

DISTRICT ATTORNEY ) MEMORANDUM OPINION AND

OF ERIE COUNTY, ) ORDER ON PETITION FOR WRIT OF

SUPERINTENDENT OF SCI ) HABEAS CORPUS [ECF No. 1]

HUNTINGDON )

)

Respondents )

MEMORANDUM OPINION

Before the Court is a petition for a writ of habeas corpus filed by Justin Raphael Johnson, an inmate

at the State Correctional Institution at Fayette,! pursuant to 28 U.S.C. § 2254. ECF No. 16. For the

reasons that follow, the petition will be denied.”

I. Background

The Pennsylvania Superior Court set forth the following relevant procedural history:

On May 6, 2015, [Johnson] entered a negotiated guilty plea to possession of a controlled

substance at Docket No. CP-25-CR-0002847-2014, and PWID [possession of a controlled

substance with intent to deliver] and possession of a firearm prohibited at Docket No. CP-

25-CR-0002848-2014. As part of the negotiated guilty plea, the Commonwealth nolle

prossed the remaining charges against Johnson.

On June 30, 2015, the trial court sentenced [Johnson] to a term of 40 to 80 months’

incarceration on the PWID conviction, a term of 60 to 120 months’ incarceration on the

possession of a firearm prohibited conviction to be served consecutively to the PWID

sentence, and term of 3 years’ probation for the possession of a controlled substance

' At the time this petition was filed, Johnson was incarcerated at the State Correctional Institution at Huntingdon.

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

conviction to be served consecutively to the possession of firearms prohibited conviction.

[Johnson’s] aggregate sentence was therefore 100 to 200 months’ incarceration followed

by 3 years’ probation.

Commonwealth v. Johnson, 2016 Pa. Super. Unpub. LEXIS 3897, at *1-2 (Pa. Super. 2016) (unpublished

memorandum) (footnotes omitted).

The additional relevant procedural history is as follows. On October 25, 2016, the Pennsylvania

Superior Court affirmed the judgment of sentence. Jd Johnson subsequently filed a timely petition

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

petition was denied. On February 5, 2019, the Pennsylvania Superior Court affirmed the denial of the

PCRA petition. Commonwealth v. Johnson, 2019 Pa. Super. Unpub. LEXIS 406 (Pa. Super, 2019)

(unpublished memorandum).

Johnson filed this timely petition for a writ of habeas corpus on or about May 22, 2019. ECF No.

1. Respondents filed a response to the petition on July 22, 2019. ECF No. 3. The petition is now ripe for

disposition.

Il. Analysis

A. Ground One: Ineffective assistance of trial counsel

Johnson’s first claim is as follows:

Petitioner was denied the effective assistance of counsel, as guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution where, in advising Petitioner to

plead guilty, Petitioner’s trial counsel, Anthony Rodrigues, Esq, failed to advise Petitioner

of the propriety of following through with the litigation of a motion to suppress the firearm

allegedly located and seized from his vehicle, as well as a subsequent custodial statement

alleged to have been made by Petitioner - claiming ownership of said firearm, and/or that

by pleading guilty, Petitioner would be precluded from raising any challenge to the trial

court’s adverse disposition of said petition on appeal to the Pennsylvania Superior Court[.]

ECF No. 1 at 9.

Respondents assert that this ground is unexhausted and without merit. ECF No. 3 at 3-6.

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).

Johnson concedes that he did not raise this claim before the state court. ECF No. 1 at 13. When

a petitioner has failed to fairly present his claim to the state courts, but state procedural rules, such as the

time limitations in the PCRA, see 42 Pa.C.S.A. § 9545(b), now bar him from doing so the exhaustion

requirement is excused; however, the claims are considered to be procedurally defaulted. See, e.g., Lines

v. Larkins, 208 F.3d 153, 162-66 (3d Cir. 2000). A petitioner can overcome procedural default by

demonstrating “cause for the default and actual prejudice as a result of the alleged violation of federal

law[.]” Coleman v. Thompson, 501 U.S.722, 750 (1991). In an effort to overcome his procedural default

of this claim, Johnson baldly asserts that the failure to raise the claim before the state court was due to

PCRA counsel’s ineffectiveness. ECF No. 1 at 13.

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, 501 U.S. at 752-54;

Davila v. Davis, 137 8. 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 v. Sup't Albion SCI, 915 F.3d 928, 937 (3d 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 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 Miller-El v. Cockrell,

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

Hensley v. Cappoza, 2019 U.S. Dist. LEXIS 185175, at *14-16 (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 counsel’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 y, Delbalso, 2017 U.S. Dist. LEXIS 126581, at *5-7 (W.D. Pa. Aug. 10, 2017) (footnote omitted).

Even assuming arguendo that Johnson’s ineffectiveness claim has “some merit,” he fails to meet

his burden under Strickland. He baldly asserts that if his counsel had advised him that, by pleading guilty,

he would be unable to litigate a motion to suppress evidence related to his possession of the firearm, he

would have “insisted on proceeding with the litigation of said Motion to Suppress, and further, exercising

his right to a trial by jury.” ECF No. 1 at 12. Johnson does not assert, much less demonstrate, that the

motion to suppress would have been successful or, if it had been successful, that the suppression of this

specific evidence related to the firearm would have affected the outcome of the subsequent trial. Johnson

has failed to sustain his burden that to overcome the procedural default of this claim. He is thus entitled

to no relief thereupon.

B. Ground Two: Violation of due process of law

Johnson’s second claim is as follows:

Petitioner was denied due process of law as guaranteed by the Fourteenth Amendment to

_. the United States Constitution where the state trial court based its decision to impose

consecutive sentences for the offenses of possession of a controlled substance, 35 P.S.

§780-113(A)(16), and prohibited possession of a firearm, 18 Pa.C.S. §6105(A)(1) based

on factually inaccurate information, namely, that said offenses took place at different

times|.]

ECF No. 1 at 15.

Johnson represents that he raised this claim before the state court in his direct appeal. Jd. at 17.

He did not. In that appeal, he challenged the sentencing court’s exercise of discretion in imposing

consecutive terms for the two crimes in question. Specifically, the issue he raised was:

Whether the legal predicate cited by the sentencing Court for the imposition of a

consecutive sentencing scheme at docket number 2848 of 2014 that the respective criminal

offenses occurred at different times was not factually accurate and thus failed to comprise

a valid and legally justifiable predicate for that sentencing election of consecutive

sentences?

ECF No. 5 at 4.

The Pennsylvania Superior Court found that the trial court had not abused its discretion in

imposing Johnson’s sentence. ECF No. 3-1 at 10. Johnson did not present the due process claim that he

presents here to the state courts. As set forth above, the exhaustion requirement exists in order 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. Although the claim Johnson raised in his direct appeal was

based on the same facts as the claim he presents here, he did not in any manner raise a federal constitution

claim in state court and thus did not exhaust this claim.

As with Ground One, Johnson failed to fairly present this claim to the state courts, but state

procedural rules, i.e., the time limitations in the PCRA, now bar him from doing so. Thus, the exhaustion

requirement is excused; however, the claim is procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d

atl62-66. Although, as set forth above, a petitioner can overcome procedural default by demonstrating

“cause for the default and actual prejudice as a result of the alleged violation of federal law,” Coleman,

501 U.S. at 750, Johnson asserts neither cause nor prejudice relating to this claim.

This claim is procedurally defaulted. Johnson is not entitled to relief thereupon.

C, Conclusion

For the foregoing reasons, the petition will be denied.

I. Certificate of Appealability

The Antiterrorism and Effective Death Penalty Act of 1996 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 “[u]nless 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.” Jd. § 2253(c)(2). “When the district court denies a habeas petition

on procedural grounds without reaching the prisoner’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.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). Applying that standard here, jurists of reason would not find it debatable

whether Johnson’s claims should be dismissed because they are procedurally defaulted.

An appropriate Order follows.

ORDER

AND NOW, this 9" day of April, 2021, for the reasons set forth in the Memorandum Opinion filed

contemporaneously herewith, IT IS HEREBY ORDERED that Petitioner Justin Raphael Johnson’s

petition for a writ of habeas corpus is denied and a certificate of appealability is denied. The Clerk of

Court is directed to mark this case CLOSED as of this date.

Tae a 2, LO

United States Magistrate Judge