GOLSTON v. SMITH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA —

\ )

DWAYNE A. GOLSTON, )

)

Petitioner ) Case No. 1:20-cv-301

) )

vs, )

) RICHARD A. LANZILLO

BARRY SMITH, . ) UNITED STATES MAGISTRATE JUDGE

ATTORNEY GENERAL OF THE )

_STATE OF PENNSYLVANIA, ) © MEMORANDUM OPINION

DISTRICT ATTORNEY OF ) ON PETITION FOR WRIT OF □

ERIE COUNTY, ) HABEAS CORPUS [ECF No. 1]

)

Respondents )

MEMORANDUM OPINION

Before the Court is a petition for a writ of habeas corpus filed by Dwayne A. Golston □

pursuant to 28 U.S.C. § 2254. ECF No. 1. For the reasons that follow, the petition will be denied.!

I. Background

Golston is an inmate at the State Correctional Institution at Houtzdale, where he is serving

a sentence imposed by the Court of Common Pleas of Erie County following his convictions at a

jury trial of forgery, access device fraud, identity theft, receiving stolen property, and possessing □

instruments of crime.2 Commonwealth v. Golston, Case No. CP-25-CR-0002218-2016 (Erie Cty.

Com. PI.).

The trial court set forth the facts underlying the convictions: °

Erin Bednaro (née Mehler), the office manager at Erie Bank in Millcreek Township,

testified [Golston] came in on June 15, 2016 and tried to cash savings bonds. See

Trial Transcript, Day One, April 3, 2017, p. 23 (“N.T.1.”). One of the tellers alerted

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

2 18 Pa.C.S. § 4101(a)(2); 18 Pa.C.S. § 4106(a)(1)(ii); 18 Pa.C.S. § 3925(a); 18 Pa.C.S. § 4120(a); and 18 Pa.C.S. §

907(a). , □

™s . 1

her because [his] Ohio-issued ID was not going through the scanners. N.T.1. p. 23,

25-27. Bednaro was able to identify [Golston] by his facial features and jacket.

N.T.1, p. 23. [Golston] tried to cash the same savings bonds at Erie Bank within

the preceding two weeks. N.T.1. p. 24. There were eight $1,000 savings bonds for

a total of $8,000. N.T.1. p. 24.

The ID presented by [Golston] contained Andrew Peele’s name, which matched the

name on the savings bonds. N.T.1. p. 27. The social security number of Andrew

Peele was present on the top of the savings bonds. N.T.1. p. 30. °

When [Golston] left, Bednaro called the police and let them know he was heading.

west, in the direction of nearby PNC Bank. N.T.1. pp. 35-36. There was a stamp

on one of the savings bonds indicating that PNC Bank attempted to process it. N.

T.1. pp. 30-31.

Officer Kyle Caldwell responded to the dispatch call and went to Erie Bank. N.T.1,

p. 40. After speaking with Bednaro and receiving a description of the suspect as an

' African American male wearing a derby-style hat and tan sport coat, and receiving

a copy of the identification card, Officer Caldwell drove towards PNC Bank.

N.T.1. pp. 40-41. When he arrived, he could see through the front glass windows

a man wearing a derby-style hat and a tan sport coat that matched the description

of [Golston]. N.T.1. p. 43.

As [Golston] was leaving the bank, Officer Caldwell engaged him in a discussion

about the savings bonds. N.T.1. p. 44. [Golston] said he was unable to cash the

bonds because of an issue with his driver’s license and that he had also failed at

Erie Bank. N.T.1. p. 44. When the operator license number was run on the license,

it came back to a white female named Rose M. Tanker from Lyndhurst, Ohio.

N.T.1. pp. 45-46. When the officer ran the name Andrew J. Peele, there was no

record found in Ohio. N.T.1. p. 47.

Upon examining the savings bonds, Officer Caldwell ran the name Andrew Peele

at the listed Arizona address with the associated Social Security number. N.T.1. p.

48.. The result verified Andrew Peele was an 81 year old Caucasian living in

Arizona. N.T.1. pp. 48-50. The Ohio ID [Golston] used had the correct birthdate

for Andrew Peele even though it is not present anywhere on the savings bonds.

N.T.1. p. 50.

[Golston] then identified himself as Dwayne Golston. N.T.1. p. 51. Officer

Caldwell ran that name along with the date of birth, address, and phone number

provided by [Golston]. An Ohio identification card verified Golston's identity.

N.T.1. p. 51.

[Golston] stated that he came across the savings bonds on the back of a urinal in a

White Castle restaurant in Chicago, Illinois. N.T.1. pp. 52-53. [Golston] was

placed under arrest and given his Miranda warnings. N.T.1. p. 53. When later

- interviewed, [Golston] gave a different version, that he received the bonds from

somebody somewhere in the Cleveland projects. N.T.1. p. 55. [Golston] then made

a written statement asserting he found the bonds in a White Castle near a dumpster,

that he had a disability, needed to take care of his 9-year-old daughter, and had a

fake ID made by a guy named Bo. N.T.1. pp. 57-58. [Golston] tried to cash the

bonds in Chicago and Cleveland as well. N.T.1. p. 58.

ECF No. 13-5 at 1-3.

Golston filed a direct appeal from his judgment of sentence; the Pennsylvania Superior

Court affirmed the judgment of sentence on May 30, 2018. Commonwealth v. Golston, 192 A.3d

-285 (Pa. Super. 2018) (unpublished memorandum). He did not file a petition for allowance of

appeal with the Pennsylvania Supreme Court.

On May 8, 2019, Golston filed a petition for relief pursuant to Pennsylvania’s Post

Conviction Relief Act (““PCRA”), 42 Pa.C.S.A. §§ 9541-46. The PCRA court dismissed the

petition on October 11, 2019. Golston appealed from the dismissal, but on January 30, 2020, the

Pennsylvania Superior Court quashed the appeal as untimely filed. ECF No. 13-18 at 1.

Golston filed the instant petition for a writ of habeas corpus on or about October 14, 2020.

ECF No. 1. He filed a brief in support thereof on November 17, 2020. ECF No. 5. Respondents

filed a response to the petition on January 13, 2021. ECF No. 13. The petition is ripe for.

disposition. □

I. Analysis

A. Grounds for relief

In order to inform the following discussion, the substance of the grounds for relief in the

‘petition are set forth here. □

Ground One, entitled “6'" and 14 Amndt. Self-Autonomy & IAC Violations,” is as

follows:

Petitioner was deprived of his 6" Amndt. self-autonomy right to set the obj ective .

of his defense as challenging the Commonwealth’s and trial court’s subject matter

jurisdiction and sovereign state police power to hale him into court to answer for

any charges where the criminal information failed to charge essential facts such as

age of victim in all counts and failed to charge any facts upon which PA sentencing

guidelines were promulgated, and where the Commonwealth has abdicated 10"

Amendment aut[hJority under VOITIS, JAG, PREA, etc.... and counsel did not

inform petitioner and counsel was not cognizant of law.

ECF No. 1 at 5.

Ground Two, entitled “6", 10", & 14" Amndt. violations depriving Commonwealth and

trial court of jurisdiction,” is as follows:

The Commonwealth filed fatally defective bills of information which left out or

failed to charge[] pertinent jurisdictional facts; these facts are required to charge a

crime, impose or elevate a mandatory minimum “advisory” (held to be

unconstitutional by U.S. Supreme Court) guideline sentence which is “mandatory” _

under state law where 100% of minimum must be served before becoming eligible

for paroles; VOTIS, JAG, PREA are quid pro quo federal regulatory programs

commandeering state legislative, executive, and judicial process in the clearly- .

established and forbidden criminal justice context per the Supremacy Clause, Art.

VI, clause 2 and 10 Amndt. ’

Id. at 6.

Ground Three, entitled “6 Amndt. Public/Jury/Unanimous Jury Trial/Sentencing Rights

Violated,” is as follows:

Commonwealth provides no jury sentencing proceeding requiring a unanimous jury

finding, beyond a reasonable doubt, of all facts altering, aggravating, enhancing,

elevating, etc... the mandatory statutory minimum, see 42 Pa.C.S. § 9721 & Pa.

Sent. Code, and public/jury trial-sentencing right is violated where jurors are

instructed they may infer/presume facts.

Id. at 8. □

. 4 □

B. Timeliness

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 U.S. Dist. LEXIS 192046, *17 (W.D. Pa. Nov. 5,

S$

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. at *17-18. Third, the court must determine whether any of the

other statutory exceptions or equitable tolling should be applied on the facts presented. Jd. at *18.

As a preliminary matter, Golston argues that Second 2244(d)(1) is “of no further force or

effect” following the United States Supreme Court’s decision in Murphy v. NCAA, 1388S. Ct. 1461

(2018), because it is an impermissible federal regulation of the state government’s PCRA process.

ECF No, | at 10. This argument fails. As explained by the United States, District Court for the

Eastern District of Pennsylvania in addressing a similar argument:

Petitioner appears to argue that the strict one-year statute of limitations under the

AEDPA § 2244(d)(1) is unconstitutional following the United States Supreme

Court decision in Murphy v. National Collegiate Athletic Association, 584 U.S. ,

138 S. Ct. 1461, 200 L. Ed. 2d 854 (2018). Petitioner argues that the Supreme’

Court decision in Murphy “rendered Congress powerless to regulate a state

government’s regulation of its citizens.” See Habeas Pet. at 14. In Murphy v.

National Collegiate Athletic Association the issue was whether the United States

federal government has the right to control state lawmaking. 584 U.S. . The State

of New Jersey sued to overturn the Professional and Amateur Sports Protection Act

(PASPA), which prevented state sponsored sports betting. See id. The Supreme

Court found the PASPA violated the anticommandeering principle and overturned

PASPA. See id. The decision in Murphy vy. National Collegiate Athletic

Association has no effect on the federal habeas corpus statute of limitations

under the AEDPA. First, the 28 U.S.C. § 2244(d)(1) of the AEDPA is a federal

statute which effects federal habeas proceedings, it is not the United States federal

government implementing a “jurisdictional time bar on state PCRA proceedings”

as petitioner argues. § 2244(d)(1) is a federal statute implementing a time bar on

federal habeas corpus proceedings.

White v. Smith, 2019 U.S. Dist. LEXIS 207156, at *7-8 (E.D. Pa. 2019) (emphasis added) (footnote

omitted).

All of the grounds for relief set forth in the petition are related to Golston’s trial and

sentence. ECF No. 1 at 5-8. Normally, the “trigger date” for these claims would be the date on

which his judgment of sentence became final, pursuant to Section 2244(d)(1)(A). However,

Golston presents two challenges to that date. ECF No. 1 at 10.

Golston first argues that PCRA counsel’s alleged ineffectiveness constitutes a “new

discovered fact” which would render the petition timely, through, he ‘appears to argue, the

applicability of Section 2244(d)(1)(B). Jd. This argument fails on multiple bases, the simplest of

which is that PCRA counsel, although appointed by the court, did not act on behalf of the state.

Counsel could not and did not create an impediment that prevented the filing of a timely habeas

petition through state action. Gerald v. Garmen, 2016 U.S. Dist. LEXIS 169209, at *6 n.2 (W.D.

Pa. 2016). Section 2244(d)(1)(B) does not apply.

Golston next argues that Section 2244(d)(1)(C) applies, citing two cases, United States v.

Haymond, 139 S. Ct. 2369 (2019), and Ramos v. Louisiana, 140 S. Ct. 1390 (2020), which, he

claims, provided “new substantive and watershed procedural” law. ECF No. 1 at 10. This

argument also fails for multiple reasons. The simplest reason that Ramos does not affect the trigger

date in this case is that the Supreme Court has held that Ramos does not apply retroactively on

federal collateral review. Edwards v. Vannoy, 141 S. Ct. 1547 (2021). Haymond does not affect

the trigger date either, because it did not “newly recognize” a constitutional right and because it is

inapplicable to this case. In Haymond, the Supreme Court issued a decision which merely

extended the holdings of prior cases to a single federal sentencing statute and its holding was, by

its own terms, limited to that statute. 139 S. Ct. at 2383; see also Hernandez v. Smith, 2020 U.S.

Dist. LEXIS 178543, at *28-30 (E.D. Pa. 2020) (finding that Haymond did not expressly recognize

a new right and explaining its inapplicability to state court inmate’s case). Obviously, in his state

court criminal case, Golston was not sentenced pursuant to the federal statute affected by □

Haymond.

.

Thus, the trigger date for Golston’s claims is the date on which his judgment of sentence

became final. Golston’s judgment of sentence became final on or about June 29, 2018, 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.

11 13(a); 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). 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, Golston had to file any federal habeas petition concerning these

trial-related claims by June 29, 2019. Because the instant habeas petition was filed on October 14,

2020, after the one-year limitations period had expired, these claims are statutorily time-barred.

Given this deficiency, the Court must determine whether Golston can take advantage of the

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

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

pendency of a “properly filed” state post-conviction proceeding. Golston filed his PCRA petition

on May 18, 2019, by which time 323 days of his one-year limitations period had expired. Those

proceedings were “properly filed,” and, thus, tolled the statute of limitations until, at the latest,

January 30, 2020, when the Pennsylvania Superior Court quashed his appeal. At that time, Golston

had 42 days remaining in the limitations period. The instant petition was filed on October 14,

2020, approximately 258 days later and well outside of the limitations period.

The United States Supreme Court has held that AEDPA’s statute-of-limitation period “is

subject to equitable tolling in appropriate cases.” Holland y. Florida, 130 8S. Ct. 2549, 2560 (2010).

A petitioner is entitled to equitable tolling only if he shows both that (1) he has been pursuing his

rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely

filing. Jd. at 2562. See also United States v. Thomas, 2013 WL 1442489, *7-8 (3d Cir. Apr. 10,

2013); Ross v. Varano, 2013 WL 1363525, *9-11 (3d Cir. Apr. 5, 2013); Munchinski v. Wilson,

694 F.3d 308, 329-32 (3d Cir. 2012). Unless Golston can demonstrate that these claims are timely,

via the application of equitable tolling or otherwise, these claims are untimely. Normally, the

Court would permit the petitioner an opportunity to establish the applicability of equitable tolling.*

However, because the claims are procedurally defaulted, as will be discussed infra, the Court need

not determine the timeliness of these claims. .

C. Exhaustion

Golston asserts that he raised the instant claims in his PCRA proceedings. However,

because his PCRA appeal was quashed as untimely, none of the claims was presented in the

Pennsylvania Superior Court. -

. 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, 1119S. .

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 USS. 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

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

3 The Court may raise the issue of timeliness sua sponte as long as the petitioner is given fair notice and an

opportunity to respond and is not prejudiced. Day v. McDonough, 547 U.S. 198, 205-10 (2006); United States v.

Bendolph, 409 F.3d 155, 161-70 (3d Cir. 2005) (en banc).

9 .

!

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).

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, or [] that failure to consider the claims

will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750

(1991).

In his brief in support of his petition, Golston does not discuss the merits of his claims at

all, but exclusively discusses the alleged ineffectiveness of his appointed PCRA counsel, alleging

that counsel never communicated with him before submitting a “no-merit’ letter to the PCRA

court. ECF No. 5. Presumably, this argument is an effort to overcome his procedural default. See

id. at 2 (citing Martinez v. Ryan, 566 U.S. 1 (2012)).

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-

10

postconviction proceedings, ineffective assistance in those proceedings does not

qualify as cause to excuse.a procedural default.”). In Martinez vy. 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 USS. 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, 1208S. 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).

As should be clear from the above-state law, Martinez is limited to defaulted ineffective-

assistance-of-trial-counsel claims. Thus, any part of Ground One not based on trial counsel’s

ineffectiveness claims, as well as Grounds Two and Three in their entirety, are procedurally

defaulted and the application of Martinez cannot overcome the default.

As to the part of Ground One based on trial counsel’s ineffectiveness, the following □□□□

applies.

11

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, 104S.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.” Jd. 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 U.S. 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

12

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 U.S. Dist. LEXIS 126581, at *5-7 (W.D. Pa. Aug. 10, 2017) (footnote

omitted).

In Ground One, Golston claims, inter alia, that trial counsel “did not inform petitioner and

counsel was not cognizant of law.” ECF No. 1 at.5. A generous reading of petition reveals that

the law to which Golston refers is that the trial court lacked subject matter jurisdiction over the

criminal case and/or the Commonwealth of Pennsylvania lacked the power to hale him into court

to answer for one or more criminal charge(s) because the criminal information failed to specify the

age of victim, a fact which was later relied on by the trial court in imposing a sentence in the

aggravated Pennsylvania Sentencing Guidelines range. See id.

In Pennsylvania, there are the two requirements for subject matter jurisdiction in criminal -

cases: “the competency of the court to hear the case, and the provision of formal notice to the

defendant of the crimes charged in compliance with the Sixth Amendment of the United States

- Constitution and Article I, Section 9, of the Pennsylvania Constitution.” Commonwealth v. Jones,

929 A.2d 205, 210 (Pa. 2007) (citation omitted). Golston is concerned only on the notice

requirement, arguing that the information failed to provide necessary content.

Pennsylvania Rule of Criminal Procedure 560(B) provides:

(B) The information shall be signed by the attorney for the Commonwealth and

shall be valid and sufficient in law if it contains:

(1) a caption showing that the prosecution is carried on in the name of and by

the authority of the Commonwealth of Pennsylvania;

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(2) the name of the defendant, or if the defendant is unknown, a description of

the defendant as nearly as may be;

(3) the date when the offense is alleged to have been committed if the precise

date is known, and the day of the week if it is an essential element of the offense

charged, provided that if the precise date is not known or if the offense is a

continuing one, an allegation that it was committed on or about any date within

the period fixed by the statute of limitations shall be sufficient; □

(4) the county where the offense is alleged to have been committed;

(5) a plain and concise statement of the essential elements of the offense

substantially the same as or cognate to the offense alleged in the complaint;

(6) a concluding statement that "all of which is against the Act of Assembly and

the peace and dignity of the Commonwealth"; and

(7) a certification that the information complies with the provisions of the Case

Records Public Access Policy of the Unified Judicial System of Pennsylvania

regarding confidential information and documents.

The notice required to support subject matter jurisdiction has been explained by the

Pennsylvania Supreme Court as follows:

... [I]t is necessary that the Commonwealth confront the defendant with a formal

and specific accusation of the crimes charged. This accusation enables the

defendant to prepare any defenses available to him, and to protect himself against

further prosecution for the same cause; it also enables the trial court to pass on the

sufficiency of the facts alleged in the indictment or information to support a

conviction.

Jones, 929 A.2d at 211-12 (quoting Commonwealth v. Little, 314 A.2d 270, 272-73 (Pa. 1974)).

None of the offenses with which Golston was charged and convicted contain an essential

element relating to the age of the victim.* The information was not flawed for lacking such an

element.

4 The grading of the offense of identity theft should be raised by one grade if the victim of the offense is, inter alia,

60 years of age or older, 18 Pa.C.S. § 4120(c)(2); however, it does not appear that this subsection was employed in

Golston’s case. He was charged with identity theft as a felony of the third degree, which is the standard grading □□□□□

the total value involved was $2,000 or more, 18 Pa.C.S. § 4120(c)(1)(ii). The total value involved in Golston’s case -

was $8,000. ECF No. 13-5 at 11.

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Further, to the extent that Golston is asserting a challenge pursuant to Alleyne v. United

States, 570 U.S. 99 (2012), in which the United States Supreme Court held that any fact that

increases the mandatory minimum sentence of a crime is an element of the offense that must be

submitted and found beyond a reasonable doubt, Alleyne is inapplicable to Golston’s case. No

mandatory minimum sentence was imposed on Golston. Although the trial court cited, inter alia,

the elderly nature of the victim as a basis for sentencing Golston in the pomated Pennsylvania

Sentencing Guidelines range, the Supreme Court specifically excepted that type of “broad

sentencing discretion, informed by judicial factfinding” from its holding in Alleyne, reaffirming

the constitutionality of “the broad discretion of judges to select a sentence within the range’

authorized by law.” Alleyne, 570 U.S. at 116-17.

Finally, the fake Ohio identification card Golston used in poeTine the relevant crimes

displayed Andrew Peele’s real name and birthdate. Golston was keenly aware of Peele’s age.

In short, Golston’s stated version of the law is inaccurate. Thus, trial counsel could not

have been ineffective for failing to know and/or inform him of this “law.” Because Golston has

not established that the ineffective assistance of trial counsel claim is substantial, he cannot avoid

procedural default of this claim.

Dz. Conclusion

For the foregoing reasons, the petition will be denied.

Ill. 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 “[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

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

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

of the denial of a constitutional right.” Id. § 2253(0)(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). Where the district court has

_ rejected a constitutional claim on its merits, “t]he petitioner must demonstrate that reasonable

nee would find the district court’s assessment of the constitutional claims corel or wrong.”

Id. Applying those standards here, jurists of reason would not find it debatable whether Golston’s

claims should be denied for the reasons given herein. Accordingly, no certificate of appealability

should issue.

An appropriate Order will follow. .

Dated: October 5, 2021 OC ,

RI =d A. LANZILLO

United States Magistrate Judge

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