# TURNER, JR. v. RANSOM

> District Court, W.D. Pennsylvania · June 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10416679

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** June 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10416679

## How later opinions describe it (automated extraction)

- finding that review from the Pennsylvania Supreme Court is unavailable, and therefore not required, for purposes of exhausting state court remedies
- stating that Pennsylvania courts apply elements of the Strickland test to ineffective assistance of counsel claims
- explaining that the miscarriage of justice standard “requires ‘new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.’”
- holding issues not raised in PCRA petition are waived on appeal

## Opinion text

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

JAMES R. TURNER, JR., ) Civil Action No. 2: 20-cv-0197
)
Petitioner, ) Chief United States Magistrate Judge
) Cynthia Reed Eddy
v. )
)
KEVIN J. RANSOM, SUPERINTENDENT )
SCI DALLAS; ATTORNEY GENERAL OF )
PENNSYLVANIA, AND DISTRICT )
ATTORNEY OF BEAVER COUNTY, )
)
Respondents. )

MEMORANDUM OPINION1

Petitioner, James R. Turner, Jr., a prisoner currently confined at the State Correctional
Institution – Dallas, in Dallas, Pennsylvania, has filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254. (ECF No. 1). He is challenging the judgment of sentence imposed on
him on March 3, 2016, by the Court of Common Pleas of Beaver County, Pennsylvania, at its
criminal case at CP-04-CR-0001944-2014. For the reasons outlined below, the Petition will be
denied and a certificate of appealability will also be denied.
II. REPORT
A. Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable
to prisoners in custody pursuant to a state court judgment. That provision allows a federal court
to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in
violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). It is Turner’s

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to jurisdiction by a United States Magistrate Judge, including entry of final judgment.
(ECF Nos. 27 and 28).
burden, as petitioner, to prove he is entitled to the writ. Id., see, e.g., Vickers v. Superintendent
Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017).
B. Relevant Factual and Procedural Background2

1. State Court Proceedings
A jury trial commenced on September 4, 2016, before the Honorable James J. Ross.
Turner was represented at trial by Assistant Beaver County Public Defenders Frank Paganie,
Esquire, and William Braslawsce, Esquire. The Pennsylvania Superior Court, in its
Memorandum filed March 11, 2019, affirming the dismissal of Turner’s PCRA petition,
recounted the factual background and procedural history of the case:3
On the night of August 14, 2014, Appellant and his girlfriend (“Victim”)
went to a bar. After a few drinks, Victim left the bar and did not return, leaving
Appellant behind. Appellant obtained a ride to Victim's home and confronted
Victim about leaving him at the bar. In the course of this confrontation, Appellant
repeatedly stabbed Victim in multiple parts of her body. Appellant left Victim’s
home, taking her car and the knife he used to stab her. Later, Appellant discarded
the knife in the Ohio River. The stab wounds to Victim’s left carotid artery and
vein caused her to bleed out slowly and die. Appellant surrendered to police the
next day, claiming he had acted in self- defense because Victim attacked him first
with a knife. Evidence indicated Appellant was intoxicated when he attacked
Victim, and Appellant claimed he was also intoxicated when he gave his
statement to the police. On the day of Appellant's arrest, the police obtained a
search warrant to collect blood samples from Appellant to compare to blood
samples obtained from the scene of the attack. The Commonwealth utilized the
blood samples for DNA analysis and the crime lab later destroyed them pursuant
to lab protocol.

2 Respondents electronically filed reproduced copies of documents filed with the Court of
Common Pleas in Turner’s underlying state criminal case at docket CP-04-CR-0001944-2014,
ECF No. 12. Exhibits 2 – 19. The documents are indexed (ECF No. 12-1) and are numbered 1 –
2341. This Court will cite these records as “SCR No. ___.” When available, specific page
numbers will be indicated.
3 The facts found by the state courts are presumed correct. See 28 U.S.C. § 2254(e)(1) (“In
a proceeding instituted by an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination of a factual issue made by a State court
shall be presumed to be correct.”)
On February 12, 2016, a jury convicted Appellant of third degree murder.
The court sentenced Appellant on March 3, 2016, to twenty (20) to forty (40)
years imprisonment. On March 11, 2016, Appellant timely filed post sentence
motions, filed by numerous pro se and counseled filings and extensions of time.
The court denied Appellant’s post-sentence motions on November 2, 2016. On
November 23, 2016, Appellant filed a petition for appointment of new counsel.
On December 2, 2016, Appellant’s prior counsel timely filed a notice of appeal on
Appellant’s behalf. Appellant filed a motion to withdraw the notice of appeal on
December 9, 2016. Following a hearing on the same day, the court allowed
Appellant to discontinue his direct appeal and appointed conflict counsel to
pursue a PCRA petition instead. Appellant first filed a pro se position, and new
counsel filed an amended PCRA petition on June 19, 2017.

At a PCRA hearing on September 25-26, 2017, the court heard testimony
from Appellant’s sister, brother-in-law, son, and trial counsel. Also at the PCRA
hearing, Appellant made an oral motion to reinstate his direct appeal rights nunc
pro tunc, which the court denied on December 5, 2017. On January 30, 2018, the
court also denied PCRA relief. Appellant filed a pro se notice of appeal on
February 12, 2018. On February 15, 2018, the court ordered Appellant to file a
concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. Rule
1925(b). Counsel timely filed an amended notice of appeal on February 26, 2018,
and a timely rule 1925(b) statement on March 8, 2018.

Commonwealth v. Turner, No. 294 WDA 2018 (Pa. Super. March 11, 2019) (unpublished
memorandum) (SCR No. 1241 – 1251). On PCRA appeal, Turner raised seven ineffective
assistance of trial counsel claims. The appellate court dismissed on the merits six claims and
dismissed one claim based upon a violation of state procedural rules. (Id.) Turner filed a
Petition for Allowance of Appeal to the Pennsylvania Supreme Court, which was denied on
December 9, 2019. (ECF No. 1-2 at 44).
2. Federal Court Proceedings
Having been denied relief in state court, Turner filed the instant federal habeas petition,
in which he raises eight claims, some with multiple sub-parts. (ECF No. 1). Respondents have
filed an Answer (ECF No. 12), to which Turner filed a Summary of Argument (ECF No. 21), a
55-page Reply (ECF No. 22), and an Amendment to his Reply, with attached exhibits. (ECF No.
25). The Court has reviewed the filings of the parties, the electronic copies of the state court
record, and the Memorandum Opinion of the Superior Court filed March 11, 2019. The matter is
fully briefed and ready for disposition..
C. The Standard for Habeas Relief under 28 U.S.C. § 2254

“The writ of habeas corpus stands as a safeguard against imprisonment of those held in
violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing
habeas corpus petitions “must be vigilant and independent . . . a commitment that entails
substantial judicial resources.” Id. This case is governed by the federal habeas statute
applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), “which imposes significant procedural and substantive
limitations on the scope” of the Court’s review. Wilkerson v. Superintendent Fayette SCI, 871
F.3d 221, 227 (3d Cir. 2017). Under 28 U.S.C. § 2254, federal courts in habeas cases must give
considerable deference to determinations of state trial and appellate courts. See Renico v. Lett,
599 U.S. 766, 772 (2010). Various standards must be met before the Court can review the

merits of this habeas petition.
1. Timeliness
Before the Court can address the merits of Turner’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). Respondents do not
contest that the petition was timely filed and the Court independently finds that the petition was
timely filed. (ECF No. 12 at 8).
2. Has the Petition Presented Cognizable Habeas Claims?
Habeas relief may be afforded to a state prisoner only when his or her custody violates
federal law. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 6 (2010). The Petition
presents a due process claim and numerous ineffective assistance of trial counsel claims. All of

the claims are cognizable in habeas proceedings.
3. Federal Habeas Review of Properly Exhausted Claims
Among AEDPA’s procedural prerequisites is a requirement that the petitioner “has
exhausted the remedies available in the courts of the State” before seeking relief in federal court.
28 U.S.C. § 2254(b). An exhausted claim is one that has been “fairly presented” to the state
courts “by invoking one complete round of the State’s established appellate review process,” and
which has been adjudicated on the merits. Carpenter v. Vaughn, 296, F.3d 138, 146 (3d Cir.
2002) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)); Johnson v. Williams, 568
U.S. 298, 302 (2013). “Fair presentation” of a claim merely requires the petitioner to “present
[the] federal 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.” Greene v. Palakovich, 606 F.3d 85, 93 (3d Cir.
2010) (citation omitted). For § 2254(d) purposes, a claim has been adjudicated on the merits
“when a state court has made a decision that finally resolves the claim on the basis of its
substance, rather than on a procedural, or other, ground.” Collins v. Sec'y of Pa. Dep't of Corr.,
742 F.3d 528, 545 (3d Cir. 2014) (quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009)).
When a claim is properly exhausted in the state courts and then raised on federal habeas
review, the level of deference afforded to the state-court decision is substantial. Bey v.
Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017), cert. denied sub nom., Gilmore v.
Bey, 138 S.Ct. 740 (2018). AEDPA “does not ‘permit federal judges to . . . casually second-
guess the decisions of their state-court colleagues or defense attorneys.’ ” Collins, 742 F.3d at
543 (quoting Burt v. Titlow, 571 U.S. 12, 14 (2013)). As a result, under § 2254(d), federal
habeas relief is unavailable for exhausted claims unless the state-court adjudication “resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly established

Federal law . . . or resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
This is an intentionally difficult standard to meet. Richter, 562 U.S. at 102. Section
2254(d) “preserves authority to issue the writ in cases where there is no possibility fairminded
jurists could disagree that the state court's decision conflicts with” clearly established Supreme
Court precedent. Id. Thus, to obtain federal habeas relief on an exhausted claim, “a state prisoner
must show that the state court'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 of fairminded disagreement.” Id. at 103.
Finally, “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas

petition[er] must overcome the limitation of § 2254(d)[ ] on the record that was before that state
court”; “evidence introduced in federal court has no bearing on § 2254(d)[ ] review.” Cullen v.
Pinholster, 563 U.S. 170, 185 (2011) (footnote omitted). “[D]istrict courts cannot conduct
evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d).
Otherwise, federal habeas petitioners would be able to circumvent the finality of state court
judgments by establishing a new factual record.” Brown v. Wenerowicz, 663 F.3d 619, 629 (3d
Cir. 2011). “This would contravene AEDPA, which requires petitioners to diligently present the
facts in state court before proceeding to the federal courthouse.” Id.
Although mandatory, the exhaustion requirement “turns on an inquiry into what
procedures are ‘available’ under state law.” O’Sullivan, 526 U.S. at 847. Under Pennsylvania
law, a federal claim becomes exhausted once it is presented to the Pennsylvania Superior Court,
either as a direct appeal from a state criminal conviction or as an appeal from a PCRA Court’s

denial of post-conviction relief. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004)
(finding that review from the Pennsylvania Supreme Court is unavailable, and therefore not
required, for purposes of exhausting state court remedies).4
Nor may a federal court grant a habeas petition if the state court’s decision rests on a
violation of a state procedural rule, even if the claim is properly exhausted. Johnston v. Pinchak,
392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is
“independent of the federal question [presented] and adequate to support the judgment.” Leyva
v. Williams, 504 F.3d 357, 365-66 (3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187 (3d Cir.
2007)).
4. Federal Habeas Review of Unexhausted, Defaulted Claims

If a state prisoner has not fairly presented a claim “to the state courts but state law clearly
forecloses review, exhaustion is excused, but the doctrine of procedural default may come into

4 Traditionally, under Pennsylvania law, exhaustion meant that a claim must be presented
to the trial court, the Pennsylvania Superior Court, and the Pennsylvania Supreme Court. See
Evans v. Court of Common Pleas, Delaware County, PA, 959 F.2d 1227, 1230 (3d Cir. 1992).
However on May 9, 2000, the Pennsylvania Supreme Court issued Judicial Administration Order
218, which provides that “in all appeals from criminal convictions or post-conviction relief
matters, a litigant shall not be required to petition for rehearing or allowance of appeal following
an adverse decision by the Superior Court in order to be deemed to have exhausted all available
state remedies respecting a claim of error. When a claim has been presented to the Superior
Court, or to the Supreme Court of Pennsylvania, and relief has been denied in a final order, the
litigant shall be deemed to have exhausted all available state remedies for purposes of federal
habeas corpus relief. . . . ” In re: Exhaustion of State Remedies in Criminal and Post-Conviction
Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam).
play.” Carpenter, 296 F.3d at 146 (citations omitted). The doctrine of procedural default serves
as a corollary to the exhaustion requirement and provides a basis for a federal court to refuse to
review a habeas claim. Federal courts may not consider the merits of a procedurally defaulted
claim unless the petitioner can demonstrate “cause” to excuse the default and “actual prejudice

resulting from the alleged constitutional violation.” Preston v. Superintendent Graterford SCI,
902 F.3d 365, 375 (3d Cir. 2018) (quoting Davila v. Davis, -- U.S. ---, 137 S. Ct. 2058, 2065
(2017) (quoting Wainwright v. Skyes, 433 U.S. 72 (1977)), cert. denied, -- U.S. ---, 139 S. Ct.
1613 (2019).5 The burden lies with a petitioner to demonstrate circumstances that would serve
to excuse a procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see
also Coleman, 501 U.S. at 750.
“Cause for a procedural default exists where something external to the petitioner,
something that cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the
State's procedural rule.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original)
(citations and internal quotation marks omitted). To establish prejudice, a petitioner must show

not merely that there were errors that created a possibility of prejudice, but that they “worked to
his actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United States v.

5 A petitioner, alternatively, can overcome a procedural default by demonstrating that the
court’s failure to review the defaulted claim will result in a “miscarriage of justice.” See
Coleman v. Thompson, 501 U.S. 722, 748 (1991); McCandless v. Vaughn, 172 F.3d 225, 260
(3d Cir. 1999). “However, this exception is limited to a ‘severely confined category [] [of] cases
in which new evidence shows ‘it is more likely than not that no reasonable juror would have
convicted [the petitioner]’.” Preston v. Superintendent Graterford SCI, 902 F.3d 365,375 n.11
(3d Cir. 2018) (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (internal alteration in
original) (quoting Schlup v. Delo, 514 U.S. 298, 329 (1995)). Further, the Court concludes that
nothing in the record suggests that Turner could met the Schlup test. See Schlup v. Delo, 513
U.S. 298, 324 (1995) (explaining that the miscarriage of justice standard “requires ‘new reliable
evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence - that was not presented at trial.’”).
Frady, 456 U.S. 152, 170 (1982)). If cause and prejudice are established, the federal court
reviews the claim “de novo because the state court did not consider the claim on the merits.”
Bey, 856 F.3d at 236 (citation omitted).
Each of Turner’s claims will be reviewed with these standards in mind.

D. Discussion
1. Claim One – Layered Due Process and Ineffective Assistance of
Trial Counsel Claim

Turner’s first claim presented on federal habeas review is a layered claim in which he
raises (1) a due process claim contending that he was denied access to critical evidence seized by
the police, specifically the two vials of blood taken from him on the date of his arrest, and (2) an
ineffective assistance of counsel claim for counsel failing “to take action to preserve Petitioner’s
seized blood evidence and failed to assert Pennsylvania Discovery and inspection and Brady
claims concerning seized blood evidence when that evidence was favorable to Petitioner’s
defense was destroyed by or at the request of the Commonwealth.” Reply at 11 (ECF No. 22).
Turner argues his “seized blood evidence was indispensable evidence for the measure of his
mental impairment from his prescription Zanax and alcohol and his free will was overborne
when interrogated by police and gave a damaging statement.” Id.
The Court notes that while Turner has raised the issue of the destruction of the blood
samples several times as an ineffective assistance of counsel claim, Turner failed to fully develop
the issue as a Brady violation in any state court proceedings. Accordingly, the claim is
procedurally defaulted and this Court cannot consider the claim unless Turner establishes cause
and prejudice or a fundamental miscarriage of justice sufficient to excuse the default. Preston v.
Superintendent Graterford SCI, 902 F.3d 365, 375 (3d Cir. 2018) (stating that federal courts may
not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate
“cause” to excuse the default and “actual prejudice” resulting from the alleged constitutional
violation.). Turner has not met this burden. As a result, this due process claim will be denied as
it is procedurally defaulted and federal review is barred.
Even if Turner did fully develop this claim before the instant petition, it would still fail

on the merits. Turner argues in his Reply that:
The intentional un-warned destruction of indispensable blood evidence for
toxicology even before the creation of the lab report of [its] analysis and before
Petitioner could likely take preservation measures constituted bad faith warranting
seeking the most appropriate sanctions of precluding the Commonwealth’s use of
the blood including expert testimony on analysis for serology and DNA.

Reply at ¶1 (ECF No. 21).

Under Brady, a violation of due process occurs when the prosecution withholds favorable
evidence from the accused and the evidence is material to the accused's guilt or punishment.
Brady, 373 U.S. at 87. Evidence is material when “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985). As Brady pertains to lost or destroyed
evidence, failing to preserve “potentially useful evidence” does not violate due process unless the
defendant shows that the police acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58
(1988). The Pennsylvania Superior Court thoroughly explained how Brady applies to “materially
exculpatory” evidence, but does not apply to “potentially useful” evidence. This Court adopts
that explanation as its own and finds there was no Brady violation:
“Under Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963)] and subsequent decisional law, a prosecutor has an obligation to disclose
all exculpatory information material to the guilt or punishment of an accused,
including evidence of an impeachment nature.” Commonwealth v. Roney, 622
Pa. 1, 22, 79 A.3d 595, 607 (2013), cert. denied, -- .S. --, 135 S.Ct. 56, 190
L.Ed.2d 56 (2014). “To establish a Brady violation, an appellant must prove
three elements: (1) the evidence at issue was favorable to the accused, either
because it is exculpatory or because it impeaches; (2) the evidence was
suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice
ensued.” Id. When the Commonwealth fails to preserve “potentially useful”
evidence, as opposed to “materially exculpatory” evidence, no due process
violation occurs unless the defendant can prove the Commonwealth acted in bad
faith. Commonwealth v. Chamberlain, 612 Pa. 107, 30 A.3d 381 (2011), cert.
denied, 566 U.S. 986, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012). “Potentially
useful evidence is that of which no more can be said than that it could have been
subjected to tests, the results of which might have exonerated the defendant.” Id.
at 143, 3 A.3d at 402 (internal quotation marks omitted).

Instantly, Appellant wanted to use both the blood sample and the police
station video to show he was intoxicated when he gave his inculpatory statement
to police. The video surveillance and the blood evidence obtained from Appellant
at the time of his statement, however, were only “potentially useful,” as the
evidence could have been subjected to tests that might have assisted in
Appellant's defense. See id. Because the evidence was potentially useful at best,
Appellant was required to show that the Commonwealth acted in bad faith
regarding the destruction of the evidence at issue. Here, Appellant failed to submit
any evidence that the Commonwealth acted in bad faith or to contradict the
assertions that the video evidence was recycled in due course.

(SCR No. 1248 – 49).

Turner has not sufficiently established prejudice, or that the blood evidence would have
affected the outcome of the trial. Accordingly, to the extent it has not been procedurally
defaulted, Turner’s due process claim will be dismissed as it is without merit.
Turner next contends that “[c]ounsel failed to take immediate action just days after
Petitioner’s arrest to locate and test the seized blood for a requested toxicology analysis from
Petitioner.” Reply at 13 (ECF No. 22). This issue was raised by Turner in his collateral appeal
proceeding, but it was not raised in his PCRA petition. As such, the Superior Court found the
issue was waived. (SCR at 1245, n.1).
A federal court ordinarily may not review a claim on the merits if the state court’s denial
of relief is based on a procedural default that rests on a state law ground that is independent of
the federal question and adequate to support that judgment. Maples v. Thomas, 565 U.S. 266,
820 (2012); Coleman v. Thompson, 501 U.S. 722, 729 (1991). Such a scenario happened in this
case when the Superior Court determined that the claim was waived pursuant to Pennsylvania’s
waiver rule, 42 Pa. C.S. § 9544(b).6 Relevant here, the Court of Appeals for the Third Circuit
has held the waiver rule in § 9544(b) to be an independent and adequate state ground for the
purpose of the procedural default doctrine. See Patton v. Sup't Graterford SCI, 2017 WL

5624266, at *1 (3d Cir. 2017) (denying a certificate of appealability because, inter alia, “[j]urists
of reason would not disagree that Patton’s remaining claims are procedurally defaulted as the
state court’s reliance on 42 Pa. Cons. Stat. § 9544(b) provides an independent and adequate
ground to support the judgment.”) (citation omitted). Here, the Superior Court’s decision rests
comfortably on such basis.
Because the Superior Court’s decision was based on an independent and adequate state
procedural rule, this claim is procedurally defaulted. See Coleman, 501 U.S. at 731-32. And
because the claim is procedurally defaulted, this Court cannot consider it unless Turner
establishes cause and prejudice or a fundamental miscarriage of justice sufficient to excuse the
default. Preston, 902 F.3d at 375. Turner has not met this burden.

For these reasons, the grounds for relief raised in Claim One will be denied because they
are procedurally defaulted and federal review is barred. Alternatively, to the extent the due
process claim has not been procedurally defaulted, it will be dismissed as it is without merit.
2. Claims Two – Eight; Ineffective Assistance of Counsel Claims
Claims alleging ineffectiveness of counsel are grounded in rights guaranteed under the
Sixth Amendment. The Supreme Court of the United States in Strickland v. Washington, 466

6 Title 42, Pa. Cons.Stat. § 9544(b), specifically states that “[a]n issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.” See also Commonwealth v. Williams, 909
A.2d 383, 386 (Pa. Super. 2006) (holding issues not raised in PCRA petition are waived on
appeal); Commonwealth v. Brown, 767 A.2d 576, 585 (Pa. Super. 2001) (same).
U.S. 668 (1994), announced the test that a habeas petitioner must satisfy before a federal court
could find that counsel failed to provide effective assistance under the Sixth Amendment. This
same standard has been incorporated by Pennsylvania courts as the proper basis to consider
challenges for ineffective assistance of counsel under the Pennsylvania constitution. See

Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (stating that Pennsylvania courts apply
elements of the Strickland test to ineffective assistance of counsel claims). A Pennsylvania
court’s resolution of an ineffective assistance claim, therefore, is presumed to apply clearly
established federal law and is due the substantial deference required by 28 U.S.C. § 2254(d).
Under the two-prong Strickland test, a petitioner must show: (1) that his attorney’s
representation fell well below an objective standard of reasonableness; and (2) that there is a
reasonable probability that, absent counsel’s errors, the result of the proceeding would have been
different. 466 U.S. at 688-96. To satisfy the first prong of the Strickland test, a petitioner must
show that “counsel made errors so serious that counsel was not functioning as ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. To meet the second prong of the

Strickland test, a petitioner must show that there is a reasonable probability that, but for
counsel’s errors, the outcome of the proceeding would have been different. Id. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome” of the
proceeding. Id. It is self-evident that counsel cannot be ineffective for failing to pursue meritless
claims or objections. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).
Turner raised the following seven ineffective assistance of counsel claims to the Superior
Court, all of which have been raised in this federal habeas petition:
1. WHETHER THE PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE
FOR FAILING TO TAKE ACTION TO PRESEVE, OBTAIN AND ANALYZE
(A) THE SAMPLE OF [APPELLANT’S] BLOOD SEIZED BY POLICE
IMMEDIATELY AFTER THE SEIZURE OF [APPELLANT’S]
INCULPATORY STATEMENT TO POLICE AND (B) THE FOOTAGE OF
VIDEO SURVEILLANCE OF [APPELLANT] ENTERING AND EXITING
THE POLICE STATION IMMEDIATELY BEFORE AND AFTER THE
POLICE SEIZURE OF [APPELLANT’S] INCULPATORY STATEMENT FOR
ADMISSION TO CORROBORATE [APPELLANT’S] INTOXICATED AND
CONFUSED STATE ON THE ISSUE OF WHETHER IT WAS A KNOWING,
INTELLIGENT AND VOLUNTARY STATEMENT.

2. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO MARSHAL AND INTRODUCE, DURING BOTH (A) A
HEARING TO SUPPRESS AND (B) TRIAL, AVAILABLE EVIDENCE FROM
AT LEAST THREE WITNESSES IN THE COMPANY OF [APPELLANT]
IMMEDIATELY PRIOR TO THE POLICE SEIZURE OF [APPELLANT’S]
STATEMENT AS TO [APPELLANT’S] INTOXICATED AND CONFUSED
STATE ON THE ISSUE OF WHETHER IT WAS A KNOWING,
INTELLIGENT AND VOLUNTARY STATEMENT?

3. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO MOVE TO SUPPRESS OR PROHIBIT THE EVIDENTIARY
USE AT TRIAL OF ANY EVIDENCE INVOLVING THE ANALYSIS OF
[APPELLANT’S] BLOOD SEIZED BY POLICE FOR A VIOLATION OF
[APPELLANT’S] FEDERAL AND STATE CONSTITUTIONAL DUE
PROCESS RIGHTS OF MEANINGFUL OPPORTUNITY TO PREVENT A
DEFENSE? 7

4. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO OBJECT TO ALL TESTIMONY OF THE COMMONWEALTH
FORENSIC PATHOLOGIST NOT EXPLICITLY CONTAINED WITHIN HIS
EXPERT AUTOPSY REPORT, ESPECIALLY HIS EXPERT OPINIONS THAT
THE DECEDENT WAS UNCONSCIOUS AND PRONE WHILE STABBED
MULTIPLE TIMES?

5. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO MARSHAL, LOCATE, SECURE THE ATTENDANCE OF, AND
INTRODUCE TESTIMONY OF AVAILABLE WITNESSES AND OTHER
CHARACTER EVIDENCE OF THE DECEDENTS VIOLENT PROPENSITIES
IN GENERAL AND A SPECIFIC STATEMENT OF INTENTION OF
VIOLENCE TOWARD [APPELLANT]?

7 The Superior Court found that the third issue was waived as Turner had “failed to raise
any claim of trial counsel’s ineffectiveness for failure to move to suppress or preclude the
Commonwealth’s use of any evidence involving the analysis of Appellant’s blood sample.”
(SCR at 1245). This issue is addressed supra in the discussion of Claim One of the federal
habeas petition.
6. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO REQUEST A JURY INSTRUCTION OF AN ADVERSE
INFERENCE FROM THE DESTRUCTION OF [APPELLANT’S] BLOOD
SEIZED BY POLICE AND THE POLICE VIDEO AS IT RELATES TO BOTH
(A) WHETHER [APPELLANT’S] INCULPATORY STATEMENT TO POLICE
WAS KNOWING, INTELLIGENT AND VOLUNTARY, AND (B) WHETHER
[APPELLANT] WAS CAPABLE OF FORMING A SPECIFIC INTENT TO
KILL?

7. WHETHER PRIOR LEGAL TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO REQUEST A JURY INSTRUCTION TO THE EFFECT THAT A
DEFENDANT CANNOT BE FOUND TO HAVE ACTED WITH MALICE
UNLESS IT FINDS THAT THE VICTIM'S INJURIES WERE CAUSED BY
THE DEFENDANT'S INTENTIONAL AND VOLUNTARY ACTION(S) –
INVOLUNTARY ACTION IS NOT SUFFICIENT?

(SCR AT 1243 – 45). The Superior Court denied Claims 1, 2, 4, 5, 6, and 7 on their merits. As a
result, this Court’s review of those claims is governed by AEDPA’s standard of review.
In affirming the PCRA court’s opinion dismissing the PCRA Petition, the Superior Court
explained:
Regarding Appellant’s issues one, two, four, five, and seven, after a
thorough review of the record, the briefs of the parties, the applicable law, and the
well-reasoned opinion of the Honorable James J. Ross, we conclude these issues
merit no relief. The PCRA court opinion comprehensively discusses and properly
disposes of the questions presented (See PCRA Court Opinion, dated January 30,
2018, at 20-19) (finding: the Appellant’s complaints of trial counsel’s
ineffectiveness for failing to preserve, obtain, and analyze blood sample, to obtain
surveillance video, and to request jury instruction on involuntariness defense
lacked arguable merit and counsel’s strategy cannot be challenged simply by
comparing in hindsight trial strategy employed with alternatives not pursued;
claims of counsel's failure to call Appellant’s relatives as witnesses, counsel's
failure to object to certain testimony of pathologist, and counsel's failure to utilize
evidence of Victim’s propensity for violence were explained by counsel’s
reasonable trial strategy). Accordingly, as to issues one, two, four, five, and
seven we affirm on the basis of the PCRA court's opinion.

(SCR at 1247-48).
The Superior Court began its analysis by applying the Pennsylvania test for ineffective
assistance of counsel derived from Commonwealth v. Pierce, 527 A.3d 973 (Pa. 1987). (SCR at
1246). The “Pierce Test” has been found to be materially identical to the Strickland test. Werts
v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2008). Thus, the Superior Court did not apply a rule of
law that contradicts established Supreme Court precedent and therefore its decision was not
contrary to clearly established Supreme Court precedent.

The only question here is whether the Pennsylvania Superior Court unreasonably applied
the Strickland standard or otherwise based its decision upon an unreasonable factual
determination.8 That is, this Court must also analyze Turner’s ineffectiveness claims under the
“unreasonable application” provision of 28 U.S.C. §2254(d). “Under that provision, the
appropriate inquiry is whether the Pennsylvania courts’ application of Strickland to [Turner’s]
ineffectiveness claim was objective unreasonable, i.e., the state court decision evaluated
objectively and on the merits, resulted in an outcome that cannot reasonable be justified under
Strickland.” Werts, 228 F.3d at 204. The question then is whether “the Pennsylvania Superior
Court’s determination that trial counsel rendered effective assistance was not an unreasonable
applicable of Strickland.” Id. Because the Superior Court denied these claims by essentially

adopting as its own Judge James J. Ross’s comprehensive, thirty-page PCRA Memorandum
Opinion filed on January 30, 2018, this Court must apply the AEDPA standard of review to the
PCRA court's rationale. See Fountain v. Kyler, 420 F.3d 267, 273–74 (3d Cir. 2005).
After conducting an evidentiary hearing, at which Turner, three of his family members,
and his trial counsel testified, the PCRA court found the testimony of counsel to be credible and
determined that counsel’s actions were a matter of strategy and tactics, all of which had some
reasonable basis:9

8 This Court’s review is limited to the last state court decision to pass on the merits of a
particular claim. See Wright v. Vaughn, 473 F.3d 85, 90 (3d Cir. 2006). Thus, this Court’s
review centers on the Superior Court’s decision of March 11, 2019. (SCR at 1241).
(1) The state courts found that counsel acted reasonably in failing to secure
the vials of blood that were destroyed at the Pennsylvania Police Crime
Laboratory. Counsel credibly testified at the PCRA hearing that he intended to
challenge the destruction of this material in a direct appeal of the case, but was
denied that opportunity when Turner withdrew his direct appeal. Moreover,
counsel testified that Turner testified at trial as to his intoxication to challenge that
the statement he gave at the police station was voluntary.10

(2) The state courts found that counsel acted reasonably in failing to object to
certain expert testimony given by Dr. James Smith, a forensic pathologist. The
PCRA court found that the testimony of counsel raised a “matter of strategy and
tactics” and “there was a reasonable basis for defense counsel to take the position
chosen.” Counsel testified that he did not object to the expert’s testimony that the
victim was unconscious at the time of the stab wounds were inflicted because he
believed “that Dr. Smith’s testimony and the location of the wounds was
indicative of a struggle. [Counsel] cross-examined Dr. Smith on these issues.”
Further counsel testified he hired a forensic toxicologist, Frederick Fochtman,
who testified at trial that there was both cocaine and alcohol in the victim’s
system. Counsel intended to use this testimony along with the defendant’s testify
to verify that a struggle occurred. Counsel also testified that he did not object to
the testimony that the manner of death was “homicide,” because the manner of
death in the autopsy was listed as homicide, and counsel understood “homicide”
to mean a killing.11

(3) The state courts found that counsel acted reasonably in failing to request a
charge for involuntariness. The PCRA court noted that “[t]o the extent that
defendant claims his intoxication renders his conduct involuntary, the law is clear
that intoxication is not a basis to negate intent. Commonwealth v. Graves, 461
Pa. 118, 394 A.2d 661 (1975).” Moreover, defense counsel “asserted that
defendant’s theory was one of self-defense, and not involuntariness. . . . The issue

9 This Court is bound by the state courts’ findings of fact and credibility determinations
under 28 U.S.C. § 2254(e)(1) .

10 This claim is raised as parts of Grounds One, Six, and Seven in the federal habeas
petition.
11 These claims are raised as Grounds Two, Three, and Five in the federal habeas petition.
It is not clear from the state court record whether Turner raised the issue about Dr. Smith quoting
from the autopsy report and stating the manner of death was homicide to the Superior Court.
The issue was raised, however, in the PCRA petition as Claim 4. To the extent this issue was not
raised on PCRA appellate review, it is procedurally defaulted and this Court cannot consider it
unless Turner establishes cause and prejudice or a fundamental miscarriage of justice sufficient
to excuse the default. Turner has not met this high standard. To the extent the claim was raised,
the claim lacks merits when evaluated under the AEDPA standard.
of involuntariness was factored into, and covered by, the asserted self-defense
theory, and this claim by the defendant lacks merit.”12

(4) The state courts found that counsel acted reasonably in failing to call
Turner’s three family members “because of their relationship with, and allegiance
to, the defendant and because their testimony appeared rehearsed to him” and that
counsel “did not believe these individuals to be credible and chose to go with the
testimony of the defendant.” Additionally, the state courts found that counsel
acted reasonably in failing to secure the videotape surveillance at the Aliquippa
police station. Counsel credibly testified that the video was requested, but was
not available.13

(5) The state courts found that counsel acted reasonably in failing to procure
testimony as to character evidence of the decedent. Again, the state courts found
this was a strategy decision by counsel. Counsel testified that he felt the
testimony was rehearsed, that any evidence of the victim’s past criminal history
was not only remote, but also involved damage to property and not harm to any
individuals; and that he did not use the victim’s mental health records of
depression because they did not equate to aggression or violent propensities.
Counsel also testified that he secured the services of an investigator to try to
obtain records regarding the victim’s history of aggressive behavior, but the
investigator was not able to find anything worth using.14

To prevail on a claim that the state court has adjudicated on the merits, Turner must
demonstrate that the state court's decision “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. Richter, 562 U.S. 86, 103 (2011). See also Schriro v. Landrigan,
550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes
the state court's determination was incorrect but whether that determination was unreasonable—a
substantially higher threshold”). Turner has not met that high threshold. Viewing the Superior
Court’s disposition of these claims through the deferential lens of AEDPA, the Court has no
hesitancy in concluding that Turner has failed to carry his burden to persuade this Court that the

12 This claim is raised as Ground Four in the federal habeas petition.
13 This claim is raised as part of Ground Six in the federal habeas petition.
14 This claim is raised as Ground Eight in the federal habeas petition.
Superior Court’s disposition was unreasonable, yet alone incorrect. For this reason, Claims Two,
Three, Four, Five, Six, and Eight will be denied.
Turner’s last ineffective assistance of counsel claim, Ground Seven, is that trial counsel
failed to “request an adverse inference instruction concerning the blood evidence when that

evidence was missing or otherwise destroyed by or at the request of the Government.” Pet. at 24
(ECF No. 1). The Superior Court denied this claim explaining:
In Appellant’s remaining issue (six), Appellant argues trial counsel failed
to request an adverse inference instruction relating to the destruction of
Appellant’s blood sample and the police station surveillance video. Appellant
avers counsel should have requested an instruction specifically addressing the loss
of this evidence to allow the jury to infer that the missing evidence would have
been unfavorable to the Commonwealth and favorable to Appellant. Appellant
alleges an adverse inference instruction could have partially mitigated counsel's
initial failure to obtain, preserve, and analyze the blood sample and to obtain the
video. Appellant concludes this Court should “arrest judgment on the count of
Murder- [3rd degree] and grant him a new trial.” (See Appellant’s Brief at 47.)
We disagree.

(SCR at 1247-48).

After discussing Brady v. Maryland, 373 U.S. 83 (1963) and subsequent decisional law,
and stating that a prosecutor has an obligation to disclose all exculpatory information, the
Superior Court found Turner’s claim to be without merit because the blood samples were not
“materially exculpatory evidence,” but rather were “potentially useful” evidence, and no due
process violation occurs unless the defendant can prove the Commonwealth acted in bad faith:
Instantly, Appellant wanted to use both the blood sample and the police
station video to show he was intoxicated when he gave his inculpatory statement
to police. The video surveillance and the blood evidence obtained from Appellant
at the time of his statement, however, were only “potentially useful,” as the
evidence could have been subjected to tests that might have assisted in
Appellant's defense. See id. Because the evidence was potentially useful at best,
Appellant was required to show that the Commonwealth acted in bad faith
regarding the destruction of the evidence at issue. See id. Here, Appellant failed to
submit any evidence that the Commonwealth acted in bad faith or to contradict
the assertions that the video evidence was recycled in due course. Trial counsel
indicated only that by the time he requested the video surveillance, it was no
longer available.

As for the blood samples, the Commonwealth utilized them for DNA
analysis, whereas Appellant wanted the blood samples to show he was inebriated
when he made his statement to the police. The crime lab, however, disposed of
the blood samples pursuant to lab protocol, which provided for specimens to be
retained for thirty days. The blood evidence might have been “potentially useful”
but, absent more, the evidence was not “materially exculpatory.” Appellant failed
to prove any due process violation occurred as a result of the disposal of the blood
evidence. See id.

As to the potential to use the evidence to demonstrate Appellant’s
incapacity to form the specific intent to kill, we observe the jury convicted
Appellant of third-degree murder, which does not require the specific intent to
kill. See Commonwealth v. Clemons, -- a.3d ---, 2019 WL 286565 (Pa. filed
January 23, 2019) (reiterating voluntary intoxication for diminished capacity
purposes serves only to reduce first-degree murder to third-degree murder);
Commonwealth v. Reed, 583 A.2d 459 (Pa.Super. 1990), appeal denied, 528 Pa.
629, 598 A.2d 282 (1991) (explaining evidence of voluntary intoxication may
reduce first-degree murder to third-degree murder, but cannot reduce third-degree
murder to manslaughter). Appellant’s voluntary intoxication had already been
used to mitigate the specific intent to kill. Thus, Appellant’s claim regarding an
adverse inference instruction related to the surveillance video and blood samples
lacks arguable merit. Because Appellant’s underlying claim lacks arguable merit,
he fails to meet the first prong of the ineffective assistance of counsel. See
Williams, supra; Kimball, supra; Pierce, supra. Therefore, counsel cannot be
deemed on PCRA review as ineffective for failing to pursue a meritless claim and
Appellant’s sixth issue warrants no relief. Accordingly, we affirm.

(SCR at 1249-50).

Viewing the Superior Court’s disposition of this claim through the deferential lens of
AEDPA, this Court finds that not only did the Superior Court reasonably apply the Strickland
standard, its decision was based upon a reasonable factual determination. Thus, Turner, is not
entitled to relief from this Court on Ground Seven.
E. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a
certificate of appealability for appellate review of a district court's disposition of a habeas
petition. It provides that “[a] certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” “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).
When 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.” Id. Applying that standard here, the Court concludes that jurists of
reason would not find it debatable whether each of Turner’s claims should be denied. For these
reasons, a certificate of appealability will be denied.
III. CONCLUSION
For all of the above reasons, the instant habeas petition for a writ of habeas corpus will

be denied and will a certificate of appealability. An appropriate Order follows.

DATED: June 23, 2021 BY THE COURT:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge
cc: JAMES R. TURNER, JR.
ML-8782
SCI-Dallas
SPECIAL MAIL-OPEN ONLY IN THE PRESENCE OF PETITIONER
1000 Follies Road
Dallas, PA 18612
(via U.S. First Class Mail)

Richard E. Absey
Beaver County District Attorney
(via ECF electronic notification)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416679. Public record. Not legal advice.