# DIXON v. MAHALLY

> District Court, W.D. Pennsylvania · December 13, 2021

URL: https://www.frixlaw.com/law-library/cases/10417228

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** December 13, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

DARNELL DIXON, )
)
Petitioner, ) Civil Action No. 2:18-cv-1367
)
v. )
) Magistrate Judge Patricia L. Dodge
LAWRENCE P. MAHALLY, et al., )
)
Respondents. )

MEMORANDUM

Pending before the Court1 is the Petition for a Writ of Habeas Corpus (ECF 1) filed by state
prisoner Darnell Dixon (“Petitioner”) under 28 U.S.C. § 2254. For the reasons set forth below, the
Court will deny the Petition and will deny a certificate of appealability as to each claim.
I. Relevant Background2
In this habeas case, Petitioner challenges the judgment of sentence imposed upon him by
the Court of Common Pleas of Allegheny County at criminal docket number CP-02-CR-17215-
2008 for the November 8, 2008 second-degree murder of Michael Ross (the “victim” or “Ross”)
during the robbery of his clothing store, CC&M.

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to
have a United States Magistrate Judge conduct proceedings in this case, including entry of a final
judgment.
2 Respondents electronically filed as exhibits to their answer (ECF 11) relevant parts of the state
court record. The documents shall be cited to by their exhibit and Bates stamp number as follows:
“Resp’s Ex. __ at ___.” Respondents have also submitted a hard copy of the Court of Common
Pleas’ file for Petitioner’s criminal case, including the transcripts for the pre-trial and trial
proceedings (dated October 18-22, 2010 and October 25, 2010), the February 15, 2011 sentencing
hearing and the June 20, 2011 hearing on Petitioner’s post-sentence motion. Citations to “Trial
Tr.” refer to the page numbers of the October 18-22, 2010 transcript, and to “Trial Tr. II” refer to
the second volume of Petitioner’s trial transcript, which contains the closing arguments, closing
charge, and jury verdict.
As discussed below, the Commonwealth introduced evidence at Petitioner’s trial to
demonstrate that he and his nephew and co-defendant, Edward Dixon (“Edward”), entered the
clothing store armed with guns and demanded cash from the victim. The store was located in a
high-crime area and the victim had a .38 caliber handgun nearby and defended himself with it. The

victim was shot at least nine times during the robbery and died at the scene. Petitioner was also
shot during the incident. (See Resp’s Ex. 14 at 79-83.)
Petitioner and Edward ran from the scene and witnesses observed them getting into
Edward’s SUV, which was parked nearby. Edward then drove Petitioner to Mercy Hospital.
Medical personel there reported to police that they were treating an individual who had been shot.
The police interviewed Edward, who initially denied having any involvement in the crimes at the
victim’s store. When the police advised him that there were potential witnesses who could place
him at the scene of the crime, Edward admitted that he and Petitioner entered the victim’s store
with masks over their faces and demanded money from the victim at gunpoint. Edward also stated
that Petitioner and the victim shot at each other. Edward said that he fired shots into the floor in

an attempt to scare the victim. (Id. at 83-87.)
At Petitioner’s trial, the Commonwealth proceeded under the theory that the Petitioner and
Edward were both armed during the robbery and that Petitioner shot the victim numerous times
using a .22 caliber Ruger pistol that investigators subsequently recovered from a hidden panel in
Edward’s SUV. Edward was likely using a .32 caliber handgun during the commission of the
robbery (which was not recovered). The Commonwealth introduced DNA and ballistic evidence
(through its experts, Walt Lorenz and Dr. Robert Levine, respectively) to support its theory of the
case. The DNA profile found on the grip of the .22 caliber pistol was consistent with Petitioner’s
profile. The victim and Edward were excluded as contributors. (Trial Tr. at 345.)
James McGee,3 a homicide detective with the Pittsburgh Police Department, interviewed
Petitioner at Mercy Hospital three days after the shooting, on November 11, 2008. At Petitioner’s
trial, Det. McGee testified that during this interview Petitioner admitted that he and Edward went
to the victim’s clothing store on November 8, 2008. Petitioner stated that he remembered entering

the store and the victim coming out “from around the corner [with] a gun in his hand.” (Trial Tr.
at 242.) Petitioner further stated that “he heard a bunch of yelling, people yelling from the back
room and he heard a lot of gunshots at which time he ran out of the store and ran down to go
where” Edward parked his SUV. (Id.) Petitioner told Det. McGee that when he was running
towards the SUV he started to have difficulty breathing, realized that he had been shot, and then
directed Edward to drive him to the hospital. (Id.) Petitioner told Det. McGee that he did not know
how he got shot. (Id. at 243.)
Petitioner initially was charged with one count each of criminal homicide, 18 Pa.C.S.
§ 2501(b), robbery, 18 Pa.C.S. § 3701(a)(1)(i), and conspiracy to commit robbery, 18 Pa.C.S.
§ 903(a)(1). Similar charges were filed against Edward. The trial court subsequently granted

Petitioner’s motion to sever his case from Edward’s case.
On November 21, 2008, Petitioner waived a preliminary hearing. The court appointed
Attorney Thomas N. Farrell (“trial counsel”) to represent Petitioner. On January 15, 2009, the
Commonwealth filed an Information charging Petitioner with the three counts sets forth above and
also with one count of carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1).
At a pre-trial hearing held on October 18, 2010, the Commonwealth moved to add another
firearm charge (possession of a firearm by person prohibited, 18 Pa.C.S. § 6105(a)(2)(i)) to the

3 Det. McGee’s last name is occasionally misspelled in the trial transcript and in the state court
opinions. This Court uses the correct spelling of his name herein.
Information. (Trial Tr. at 5.) That request was granted and Petitioner waived his right to have that
added firearm charge tried to the jury.4 (Id. at 5-8.)
On October 20, 2010, the trial court held a hearing on Petitioner’s motion to supress the
statement he gave to Det. McGee. (Id. at 9.) The trial court denied that motion at the conclusion

of the hearing. (Id. at 24-28.) It then proceeded to trial.
In its Appellate Rule 1925(a) opinion issued after Petitioner filed a direct appeal, the trial
court provided the following summary of the evidence introduced at Petitioner’s trial:
On November 8, 2008, Michael Ross was the owner and operator of a
business known as CC&M Fashions located on Hodgkins Street in the Northside
Section of the City of Pittsburgh. Ross sold t-shirts and other sports-related wearing
apparel from the store; however, because his father and grandfather who had
previously operated the store were robbed or attempted to be robbed on several
occasions, Ross rarely kept more than sixty dollars on the premises and he also had
a thirty-eight-caliber revolver in his desk drawer. Ross opened his store sometime
between 11:30 a.m. and 12:00 p.m. and shortly thereafter, Ross’ father [Fred] came
to the store and assisted him and was working in the back of the store, storing
additional items that Ross had for sale.
Earlier on November 8, 2008, Ross had attempted to call his girlfriend,
Christine Johnson. They had made numerous phone calls to each other; however,
they had not been able to reach each other. At approximately 1:00 p.m., Ross and
Johnson were finally able to reach each other on the telephone and were talking for
several moments when she heard someone come into the store. Apparently Ross
believed that he had disconnected the phone connection but he had not and Johnson
was able to hear what was going on in the store. Johnson heard Ross say to someone
who had come into to the store, “Take your hoodie off” and also heard the
individual who came into the store say, “Give me your money.” She then
disconnected this conversation and called 911 to report a robbery that was taking
place at Ross’ business.
Fred Ross, who was working in the back of the store, knew that his son was
on the phone and decided to deal with the inventory in the storage area. While he
was working in the back of the store, he heard Michael Ross yell to him, “Dad, it’s
on.” Fred Ross then came to the front of the store and partially obscured by several
racks of clothing saw two young, black males come into the store, both of whom
were dressed in black and had what appeared to be black masks on. Both of the men
that Fred Ross saw were armed and one of the two was yelling at Michael Ross to

4 Respondents explain that such waivers are standard practice in Pennsylvania courts. It prevents
the jury from hearing about a defendant’s prior felony conviction. See, e.g., Commonwealth v.
Jones, 858 A.2d 1198, 1208 (Pa. Super. Ct. 2004).
“Give up the money.” The two intruders were focused on Michael Ross and not
Fred Ross and he was able to run out the front door and across the street to a Kuhn’s
Market where he had hoped to find a Pittsburgh Police Officer or security guard to
assist him in the prevention of this robbery. Once he was outside of the store he
heard several gunshots and turned to see the two intruders leaving the store and
heading down toward Ingram Street. Fred Ross went into the store and saw Michael
Ross lying on the floor and realized that there was nothing he could do for him.
Victoria Zuback, (hereinafter referred to as “Zuback”), was walking her dog
along Ingram Street when she heard a series of gun shots. Shortly after hearing
those gunshots, she heard the sound of footsteps approaching her and when she
turned to look, she saw two individuals dressed in black, with black masks on. The
first individual went to a large SUV that was parked in front of a house and [she]
saw that individual go to the rear of the vehicle, open the left rear door and appear
to put something in the back, close the door and then get into the driver’s seat.
Shortly thereafter she heard another individual heading toward the SUV and saw
that individual get into the front passenger seat and then saw the vehicle leave the
scene.
Jamal El-Main, (hereinafter referred to as “El-Main”), was in his bedroom
on the second floor of his home [on] Ingram Street and was about to change his
clothes so he could go out and rake the leaves. When he was looking out his
bedroom window, he noticed a large SUV parked in front of his house, which was
parked in the wrong direction. El-Main went to his son’s bedroom to get a better
look at the vehicle and in looking out his son’s bedroom window, he saw an
individual all dressed in black reach the SUV, go to the back rear, open up the rear
door and attempt to dispose of something. He then saw that individual get into the
driver’s seat. He also saw that there was someone else in the passenger seat and
although he did not have a full view of them he was able to determine that there
was someone there because he saw his legs. El-Main went down the stairs but by
the time he got down the stairs, the SUV was gone. When he observed the driver
of the SUV, he noticed that his hair was messed up like it had been braided and
combed out and processed to relax it. El-Main then went out to rake his leaves and
while he was doing this chore, he was approached by homicide detectives who were
investigating the shooting at CC&M and told them what he had seen. When the
homicide detectives asked him whether he could identify the van and the driver if
he saw them again, he told them yes.
The killing of Michael Ross occurred approximately one mile from the
Allegheny General Hospital in the Northside Section of Pittsburgh at
approximately 1:15 p.m. At approximately 1:30 p.m., Pittsburgh homicide
detectives received a phone call from the Mercy Hospital emergency room stating
that they had a shooting victim in their emergency room that was being treated.
Detectives were dispatched to Mercy Hospital to investigate that shooting and
determined that individual who had been shot was [Petitioner] and that he was
currently in surgery for his gunshot wound. These homicide detectives also saw
Edward in the emergency room. These detectives also noted a Chevrolet Yukon
SUV with the driver’s side and passenger side doors open and noticed that there
was blood on the passenger seat area of that Yukon. They asked Edward if he was
the owner of the vehicle and he said that he was and they received consent from
him to search that vehicle. In the rear of the vehicle, they found two black t-shirts
tied up in a manner so as to permit them to be used as masks and they also found
several white sports t-shirts. During the course of the inspection of the vehicle, it
was noticed that the interior panel in the rear on the driver’s side was loose and
when that was removed a twenty-two caliber semi-automatic handgun was found.
Homicide detectives at the CC&M shooting and at Mercy Hospital were
continuing to provide each other with information on what they believed to be two
different shootings when it was suggested that El-Main be brought to Mercy
Hospital to see if he might be able to identify the SUV and driver…
- - -
On November 11, 2008, Detective James McGee went to Mercy Hospital,
seeking to interview [Petitioner]. Detective McGee was directed to [Petitioner’s]
attending physician and asked him whether or not [Petitioner] was in any condition
to be interviewed and was informed that he could be interviewed. Detective McGee
then met [Petitioner] in his hospital room and then told him the reason that he was
there to interview him was about the circumstances of which he was shot on
November 8, 2008. [Petitioner] told him that he had met with two detectives the
day before and they advised him that he was probably going to be charged with
criminal homicide. Detective McGee told him that he was probably correct and then
advised him of his Miranda rights. [Petitioner] told Detective McGee that although
he recalled going to CC&M Fashions, he did not recall where they parked the car.
He remembered going into the store and then Michael Ross came from behind the
counter with a gun in his hand and then he heard lots of people yelling at which
time he ran out of the store back to the area where they had left the car. While
running to the SUV, he had difficulty breathing and he realized he had been shot
and told Edward to drive him to a hospital. After ten or fifteen minutes it became
apparent that [Petitioner] was experiencing some pain and the interview ceased.
[Petitioner] was discharged later that day from the hospital.
- - -
During the course of the initial investigation of the homicide scene, it was
determined that three different weapons had been fired…during this robbery. Shell
casings and bullets were found from a twenty-two-caliber weapon and a thirty-
eight-caliber weapon. A twenty-two-caliber weapon was found in the interior
quarter panel of the SUV owned by Edward and the thirty-eighty-caliber weapon
was found at the Route 65 on ramp off Marshall Avenue, not far from the shooting
scene. This thirty-eight caliber was lawfully owned and registered to Fred Ross, the
victim’s father. The thirty-two-caliber weapon was never recovered. In addition to
finding the twenty-two-caliber weapon in Edward’s vehicle, there were several
white t-shirts that had been taken from Michael Ross’ business.
(Resp’s Ex. 14 at 79-86, 92; see also id. at 89-91 (summarizing the evidence introduced at
Petitioner’s trial and discussing why the jury’s verdict was not against the weight of the evidence
and why the Commonwealth introduced sufficient evidence to support the jury’s verdict.)5
With respect to the criminal homicide charge, the trial court instructed the jury on first,

second and third degree murder. (Trial Tr. II at 70-74.) The jury convicted Petitioner of second-
degree murder, robbery, carrying a firearm without a license, and conspiracy to commit robbery.6
(Id. at 85-86.) The trial court found Petitioner guilty of the severed person not to possess charge.
(Id. at 90.) It deferred sentencing for the preparation of a pre-sentence report. (Id.)
Petitioner obtained new counsel (Attorney Matthew Debbis) and on February 15, 2011 the
trial court sentenced him to the mandatory term of life imprisonment on the second-degree murder
conviction, a consecutive 10 to 20 years for robbery, and a consecutive 10 to 20 years for
conspiracy.
Petitioner, through new counsel (Attorney Scott Coffey), filed an appeal with the Superior
Court of Pennsylvania in which he raised the following five claims:

1. Petitioner’s robbery conviction was against the weight of the evidence;

2. The Commonwealth introduced insufficient evidence to convict him of
second-degree murder since the Commonwealth failed to prove that the
killing occurred during a robbery;

5 The Court notes that in in its Appellate Rule 1925(a) opinion the trial court also provided
background of the statements Edward gave to Detective Robert Provident. Those statements were
not introduced at Petitioner’s trial and Edward did not testify at Petitioner’s trial. The trial court
provided information regard Edward’s statement in its Appellate Rule 1925(a) opinion for
background and because in its opinion it was addressing the concise statement of matters
complained of on appeal that Petitioner and Edward each filed in their respective direct appeal.
(Resp’s Ex. 14 at 76-102.)
6 At the conclusion of Edward’s trial, which was held in January 2011, a jury also convicted him
of second-degree murder, robbery, possession of a firearm without a license and criminal
conspiracy. (Resp’s Ex. 14 at 80.)
3. The trial court erred in admitting and displaying to the jury an inflammatory
and prejudicial photograph of the deceased with his eyes open;

4. The trial court erred in denying his motion to suppress the statement he gave
to Det. McGee on November 11, 2008; and,

5. The trial court erred in denying the request for a voluntary
manslaughter/imperfect self-defense jury instruction.
(Resp’s Ex. 15 at 103-28.) Petitioner does not raise any of these stand-alone claims of trial court
error in this habeas case.
The Superior Court affirmed Petitioner’s judgment of sentence in Commonwealth v. Dixon,
No. 1133 WDA 2011 (Pa. Super. Ct. Dec. 12, 2012) (“Dixon I”). (Resp’s Ex. 17 at 161-69.) It
denied each of Petitioner’s claims on the merits for the reasons given by the trial court in its
Appellate Rule 1925(a) opinion. (Id. at 161-67.) The Superior Court also sua sponte vacated the
sentence imposed upon Petitioner for his robbery conviction because under Pennsylvania law a
criminal defendant cannot be sentenced for both second-degree (felony) murder and the underlying
felony, as Petitioner was in this case. (Id. at 168-69.)
On December 19, 2013, and after the Pennsylvania Supreme Court had denied a petition
for allowance of appeal (Resp’s Ex. 22 at 204), Petitioner filed a pro se motion for a copy of the
transcripts of all prior proceedings in his criminal case. (Resp’s Ex. 23 at 205.) The trial court
denied the motion on December 30, 2013 because at that time Petitioner had no collateral
proceeding pending under Pennsylvania’s Post Conviction Relief Act (“PCRA”). (Resp’s Ex. 24
at 209) (citing Commonwealth v. Ballem, 482 A.2d 1322 (Pa. Super. Ct. 1984)).
In March 2014, Petitioner filed in state court a pro se PCRA petition in which he raised
more than ten grounds for relief. (Resp’s Ex. 25 at 212-30.) The trial court, now the PCRA court,
appointed Attorney Charles R. Pass, III to represent him. Attorney Pass subsequently filed an
application for leave to withdraw and an accompanying “no-merit” letter brief pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa. 1988) (en banc), in which he explained why, in his professional opinion, Petitioner stated no
meritorious claim for PCRA relief. (Resp’s Ex. 27 at 233-77).7
On June 7, 2014, the PCRA court granted Attorney Pass’ request to withdraw and issued a

notice advising Petitioner of its intention to dismiss his pro se PCRA petition pursuant to
Pennsylvania Rule of Criminal Procedure 907. (Resp’s Ex. 28 at 278-79.)8 Petitioner then
informed the PCRA court that he intended to proceed pro se. (Resp’s Ex. 29 at 280-81.)
On September 21, 2014, Petitioner filed a pro se motion for leave to file an amended PCRA
petition in order to set forth approximately seven additional grounds for relief. (Resp’s Ex. 30 at
282-312.) The PCRA court appointed Attorney Alan R. Patterson as Petitioner’s new PCRA
counsel. (Resp’s Ex. 31 at 313.) On September 16, 2015, Attorney Patterson filed a Turner/Finley
“no-merit” letter brief and motion to withdraw in which he explained that he had analyzed

7 Pennsylvania law provides that before appointed counsel can be permitted to withdraw from
representing a petitioner under the PCRA, counsel is required to file and obtain approval of a “no-
merit” letter or brief pursuant to the mandates of Turner/Finley. “The no-merit letter must set forth:
1) the nature and extent of counsel’s review of the case; 2) each issue that the petitioner wishes to
raise on appeal; and 3) counsel’s explanation of why each of those issues is meritless.”
Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. Ct. 2019) (citations omitted). Counsel
must file the Turner/Finley letter brief and send copies of it and an application to withdraw to the
petitioner with the advisement that the petitioner has the right to proceed pro se or with a privately
retained attorney. Id.; see also Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 90 (3d
Cir. 2013). The court must then conduct its own independent evaluation of the record to determine
if it agrees with counsel that the PCRA petition is without merit. Commonwealth v. Rykard, 55
A.3d 1177, 1184 (Pa. Super. Ct. 2012). If the court agrees with counsel that the petition is meritless,
the petitioner may proceed pro se or with a privately retained attorney. Id.
8 At the time, Pennsylvania law required a petitioner to raise a claim of PCRA counsel’s
ineffectiveness in response to the PCRA court’s Rule 907 notice of intent to dismiss or risk waiver.
Commonwealth v. Pitts, 981 A.2d 875, 879-80 (Pa. 2009) (procedure abrogated by Commonwealth
v. Bradley, 261 A.3d 381 (Pa. 2021) (holding that going forward PCRA petitioners may raise
claims of PCRA counsel’s ineffectiveness at first opportunity to do so, even when on PCRA
appeal)).
Petitioner’s September 21, 2014 pro se motion to amend his PCRA petition and concluded that, in
his professional opinion, there were no meritorious issues. (Resp’s Ex. 32 at 314-33.)
The PCRA court granted Attorney Patterson’s request to withdraw and, therefore,
Petitioner continued pro se. On December 1, 2015, the PCRA court dismissed his request for

collateral relief. (Resp’s Ex. 34 at 336.)
Petitioner filed a pro se appeal to the Superior Court. The PCRA court then issued its
Appellate Rule 1925(a) opinion. (Resp’s Ex. 38 at 375-98.) Thereafter, Petitioner filed his pro se
appellate brief in which he raised approximately twenty-five issues. (Resp’s ECF 39 at 406-08.)
On May 25, 2017, the Superior Court issued Commonwealth v. Dixon, No. 148 WDA 2016
(Pa. Super. Ct. May 25, 2017) (“Dixon II”), in which it held that Petitioner’s claims were waived
for various reasons, including because he failed to file a response to Attorney Patterson’s no-merit
letter. (Resp’s Ex. 42 at 479-89.) Petitioner then applied for reargument in which he alleged that
he did, in fact, respond to that no-merit letter but that it was not docketed in his case.9 (Resp’s Ex.
43 at 490-502.) The Superior Court granted Petitioner’s motion for reargument and withdrew its

decision in Dixon II.
On November 12, 2017, the Superior Court issued Commonwealth v. Dixon, No. 148 WDA
2016, 2017 WL 5946524 (Pa. Super. Ct. Nov. 12, 2017) (“Dixon III”). Its disposition of the claims
before it that are relevant to this federal habeas case is discussed below.
After the Superior Court issued Dixon III, Petitioner filed a motion for reargument, which
the Superior Court denied. (Resp’s Ex. 47 at 557.) Petitioner did not seek discretionary review
with the Supreme Court of Pennsylvania.

9 Apparently, Petitioner had written and served objections on the PCRA court and the District
Attorney’s Office, but never filed that response with the clerk of courts.
Petitioner then filed the instant Petition for a Writ of Habeas Corpus (ECF 1) with this
Court in which he raises twenty-two claims for relief.10 In their Answer (ECF 11), Respondents
assert that many of Petitioner’s claims are procedurally defaulted. They also contend that none of
his claims have merit. Petitioner acknowledges that many of his claims are procedurally defaulted.

In his Reply (ECF 15), he addresses only Claim 9 (relating to trial counsel’s failure to object to
the trial court’s instruction on reasonable doubt). He argues that under Martinez v. Ryan, 566 U.S.
1 (2012), he can overcome the default of Claim 9 and, therefore, the Court should review it de
novo.
II. Discussion
A. Jurisdiction
The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to
prisoners in custody pursuant to a state-court judgment. It permits a federal court to grant a state
prisoner a 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). Errors of state law are not cognizable.

Id.; see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Indeed, the Court is bound by the
state courts’ determinations of state law. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir.
2004) (“Federal courts reviewing habeas claims cannot ‘reexamine state court determinations on
state-law questions.’”) (quoting Estelle, 502 U.S at 67-68).

10 Petitioner’s claims are numbered one through twenty-three, but there is no Claim 22. (See ECF
1 at 48-49, where the space for “Claim 22” is left blank.) Petitioner raised many of his claims to
the Superior Court in his PCRA appeal, but he numbered those claims differently in that appeal.
See Dixon III, 2017 WL 5946524 at *9-10 (listing the twenty-five claims Petitioner raised in his
PCRA appeal.) When discussing Petitioner’s claims herein, this Court refers to the number

Petitioner assigned to them in his federal habeas petition at ECF 1.
It is Petitioner’s burden to prove that he is entitled to the writ. See, e.g., Vickers v.
Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites
that he must satisfy before he can receive habeas relief on his claims (for example, the burden
imposed upon him by the standard of review enacted by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) (which is discussed below), but, ultimately, Petitioner cannot
receive federal habeas relief unless he demonstrates that he is in custody in violation of his federal
constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
B. Standard of Review
In 1996, Congress made important amendments to the federal habeas statutes with the
enactment of the AEDPA. Among other things, AEDPA “modified a federal habeas court’s role
in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure
that state-court convictions are given effect to the extent possible under law.”11 Bell v. Cone, 535
U.S. 685, 693 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It reflects the view
that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,

not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86,
102-03 (2011) (internal quotations and citation omitted).

11 A finding of fact made by a state court always has been afforded considerable deference in a
federal habeas proceeding. See, e.g., Vickers, 858 F.3d at 850 (even in pre-AEDPA cases, “‘federal
habeas courts [had] no license to redetermine credibility of witnesses who demeanor ha[d] been
observed by the state trial court, but not by them’”) (quoting Marshall v. Lonberger, 459 U.S. 422,
434 (1983) (bracketed text added by the court of appeals)). AEDPA continued that deference and
mandates that “a determination of a factual issue made by a State court shall be presumed to be
correct.” 28 U.S.C. § 2254(e)(1). A petitioner has the “burden of rebutting the presumption of
correctness by clear and convincing evidence.” Id.
AEDPA put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d).
It applies “to any claim that was adjudicated on the merits” by the Superior Court12 and, in relevant
part, it prohibits a federal habeas court from granting relief unless the petitioner established that
the Superior Court’s “adjudication of the claim”:

(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States[.]
28 U.S.C. § 2254(d)(1).13 For the purposes of § 2254(d), a claim has been “adjudicated on the
merits in State court proceedings” when the state court (here, the Superior Court) made a decision
that finally resolves the claim based on its substance, not on a procedural, or other, ground. See,
e.g., Richter, 562 U.S. at 98-100; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).
Importantly, although the Superior Court in Dixon III held that many of Petitioner’s claims
were waived due to briefing deficiencies, it also provided an alternative holding on the merits with
respect to many of those claims. AEDPA’s standard of review applies to the Superior Court’s
alternative adjudication on the merits. See, e.g., Rolan v. Coleman, 680 F.3d 311, 320 (3d Cir.

12 When applying § 2254(d), the federal habeas court considers the “last reasoned decision” of the
state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539
F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Sup’t Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016).
13 Section 2254(d)(1) applies to questions of law and mixed questions of law and fact. Those are
the types of claims presented in this case and, therefore, this Court applies the standard of review
at § 2254(d)(1) to them. See Jermyn v. Horn, 266 F.3d 257, 305-06 & n.24 (3d Cir. 2001). Another
provision of AEDPA’s standard of review, codified at § 2254(d)(2), provides that a petitioner must
demonstrate that the state court’s adjudication of a claim “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.” This provision applies when a petitioner “challenges the factual basis for” the state
court’s “decision rejecting a claim[.]” Burt v. Titlow, 571 U.S. 12, 18 (2013). The standard of
review set forth at § 2254(d)(2) is not applicable to this case because no decision rendered by the
Superior Court that is at issue here was premised upon a finding of fact made by it or the PCRA
court following, for example, an evidentiary hearing. Rather, the Superior Court applied the
historical facts or record to Petitioner’s claims. However, to the extent that § 2254(d)(2) arguably
applies to this Court’s review of any of Petitioner’s claims, Petitioner has not overcome the burden
imposed by it. That is, he has not demonstrated that the Superior Court’s decision rejecting a claim
was based upon an unreasonable determination of the facts.
2012) (“We similarly believe that in referencing ‘adjudication on the merits,’ AEDPA draws no
such distinction for alternative rulings. Rather, it suggests that where a state court has considered
the merits of the claim, and its consideration provides an alternative and sufficient basis for the
decision, such consideration warrants [AEDPA] deference.”)

If, when evaluating a claim, this Court determines that Petitioner has satisfied his burden
under § 2254(d), this Court must then “proceed to review the merits of the claim de novo to
evaluate if a constitutional violation occurred.” Vickers, 858 F.3d at 849 (citing Lafler v. Cooper,
566 U.S. 156, 174 (2012)).14 That is because “a federal court can only grant the Great Writ if it is
‘firmly convinced that a federal constitutional right has been violated[.]’” Id. (citing Williams, 529
U.S. at 389, and Horn v. Banks, 536 U.S. 266, 272 (2001) (“[w]hile it is of course a necessary
prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review…none
of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue
if a prisoner satisfies the AEDPA standard[.]”)).
In applying § 2254(d)(1)’s standard of review, this Court’s first task is to ascertain what

law falls within the scope of the “clearly established Federal law, as determined by the Supreme
Court of the United States[,]” 28 U.S.C. § 2254(d)(1). It is “‘the governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its decision.’” Dennis
v. Sec’y, Pennsylvania Dep’t of Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting Lockyer v.
Andrade, 538 U.S. 63, 71-72 (2003) (emphasis added)). It “includes only ‘the holdings, as opposed

14 These steps “sometimes merge in cases in which the federal habeas court determines that the
state court engaged in an ‘unreasonable application’ of clearly established Supreme Court
precedent because it will be apparent from the explication of why the state court unreasonably
applied that precedent that, under any reasonable application, a constitutional violation did occur.”
Vickers, 858 F.3d at 849 n.8.
to the dicta, of [the Supreme] Court’s decisions.’”15 White v. Woodall, 572 U.S. 415, 420 (2014)
(quoting Howes v. Fields, 565 U.S. 499, 505 (2012), which quoted Williams, 529 U.S. at 412).
Once the “clearly established Federal law, as determined by the Supreme Court of the
United States” is ascertained, this Court must determine whether the Superior Court’s adjudication

of the claim at issue was “contrary to” that law. Williams, 529 U.S. at 404-05 (explaining that the
“contrary to” and “unreasonable application of” clauses of § 2254(d)(1) have independent
meaning). A state-court adjudication is “contrary to…clearly established Federal law, as
determined by the Supreme Court of the United States” § 2254(d)(1), “if the state court applies a
rule that contradicts the governing law set forth in [Supreme Court] cases,” Williams, 529 U.S. at
405, or “if the state court confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court]
precedent,” id. at 406.
A “run-of-the-mill” state-court adjudication applying the correct legal rule from Supreme
Court decisions to the facts of a particular case will not be “contrary to” Supreme Court precedent.

Williams, 529 U.S. at 406. Therefore, the issue in most federal habeas cases is whether the
adjudication by the state court survives review under § 2254(d)(1)’s “unreasonable application”
clause.

15 The Supreme Court “has repeatedly emphasized” that “circuit precedent does not constitute
‘clearly established Federal law, as determined by the Supreme Court.’” Glebe v. Frost, 574 U.S.
21, 24 (2014) (per curiam) (quoting § 2254(d)(1) and citing Lopez v. Smith, 574 U.S. 1 (2014) (per
curiam)). See, e.g., Renico v. Lett, 559 U.S. 766, 779 (2010) (state court’s failure to apply decision
by federal circuit court “cannot independently authorize habeas relief under AEDPA.”).
Additionally, “[c]ircuit precedent cannot ‘refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that [the Supreme] Court has not announced.’” Lopez, 574
U.S. at 2 (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)).
“A state court decision is an ‘unreasonable application of federal law’ if the state court
‘identifies the correct governing legal principle,’ but ‘unreasonably applies that principle to the
facts of the prisoner’s case.’” Dennis, 834 F.3d at 281 (quoting Williams, 529 U.S. at 413). To
satisfy his burden under this provision of AEDPA’s standard of review, Petitioner must do more

than convince this Court that the Superior Court’s decision was incorrect. Id. He must show that it
“‘was objectively unreasonable.’” Id. (quoting Williams, 529 U.S. at 409) (emphasis added by
Court of Appeals). This means that Petitioner must demonstrate that the Superior 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.” Richter, 562 U.S. at 103
(emphasis added). As the Supreme Court noted:
It bears repeating that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable. See Lockyer, supra, at 75, 123 S. Ct. 1166.
If this standard is difficult to meet, that is because it was meant to be. As amended
by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518
U.S. 651, 664, 116 S. Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA’s
“modified res judicata rule” under § 2244). It 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 this Court’s precedents. It goes no further.

Id. at 102.
C. Exhaustion and Procedural Default
The “exhaustion doctrine” requires that a state prisoner raise his federal constitutional
claims in state court through the proper procedures before he litigates them in a federal habeas
petition. See, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It is “grounded in
principles of comity; in a federal system, the States should have the first opportunity to address
and correct alleged violations of state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S.
722, 731 (1991). It “is designed to give the state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the federal courts[.]” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999).
Additionally, and importantly, a petitioner must have “invoke[d] one complete round of
the State’s established appellate review process[,]” in order to satisfy the exhaustion requirement.

O’Sullivan, 526 U.S. at 845. In Pennsylvania, this requirement means that a petitioner in a non-
capital case such as this one must have first presented every federal constitutional claim raised in
his federal habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g.,
Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
The doctrine of procedural default, like the doctrine of exhaustion, is “grounded in
concerns of comity and federalism,” Coleman, 501 U.S. at 730. To succinctly summarize it, it
provides that a Pennsylvania state prisoner in a non-capital case defaults a federal habeas claim if
he: (a) failed to present it to the Superior Court and he cannot do so now because the state courts
would decline to address the claims on the merits because state procedural rules (such as, for
example, the PCRA’s one-year statute of limitations) bar such consideration; or (b) failed to

comply with a state procedural rule when he presented the claim to the state court, and for that
reason the Superior Court declined to address the federal claim on the merits. See, e.g., Edwards
v. Carpenter, 529 U.S. 446, 451 (2000); O’Sullivan v. Boerckel, 526 U.S. 838, 851-56 (1999)
(Stevens, J. dissenting) (describing the history of the procedural default doctrine); Wainwright v.
Sykes, 433 U.S. 72 (1977); Lines v. Larkins, 208 F.3d 153, 162-69 (3d Cir. 2000).
A petitioner may avoid the default of a claim by demonstrating “cause for the default and
actual prejudice as a result of the alleged violation of federal law[.]”16 Coleman, 501 U.S. at 750.

16 A petitioner may also overcome his default by demonstrating “that failure to consider the claims
will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. This means that a
Footnote continue on next page…
“‘Cause’ under the cause and prejudice test must be something external to the petitioner, something
that cannot fairly be attributed to him[.]” Id. at 753 (emphasis in original).
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 establish the

“cause” necessary to overcome the default of a federal habeas claim. Id.; Davila v. Davis, 137
S. Ct. 2058, 2062 (2017). In Martinez v. Ryan, 566 U.S. 1 (2012) the Supreme Court announced a
narrow exception to this rule. In relevant part, it held that in states like Pennsylvania, where the
law requires that claims of ineffective assistance of trial counsel be raised for the first time in a
collateral proceeding,17 a petitioner may overcome the default of a claim of trial counsel’s
ineffectiveness. To do so, the petitioner must demonstrate: (1) the defaulted claim of trial counsel’s
ineffectiveness is “substantial” and (2) PCRA counsel was ineffective within the meaning of
Strickland v. Washington, 466 U.S. 668 (1984) for (3) failing to raise that claim in the “initial
review collateral proceeding” (meaning to the PCRA court). Martinez, 566 U.S. at 17. The holding
in Martinez is limited to defaulted claims asserting that trial counsel was ineffective. See, e.g.,

Davila, 137 S. Ct. at 2062-70. It does not apply to any other type of defaulted claim. Id.
The Court of Appeals has explained that a claim that trial counsel was ineffective is
“substantial” if it has “some merit.” Workman v. Sup’t Albion SCI, 915 F.3d 928, 938 (3d Cir.
2019). The evaluation is the same one that a federal court undertakes when it considers whether to

procedural default may be excused if the petitioner presents evidence of “actual innocence” that is
“so strong that a court cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional error[.]” Schlup v. Delo, 513 U.S.
298, 316 (1995). In only the extraordinary case will a petitioner be able to establish a “fundamental
miscarriage of justice,” and this is not one of the rare cases in which that rule is implicated.
17 In Pennsylvania, a defendant typically may not litigate ineffective assistance of trial counsel
claims on direct appeal. Such claims must be raised in a PCRA proceeding. Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002) (abrogated in part on other grounds by Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021)).
grant a certificate of appealability. Id.; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, 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 or that the issues presented were adequate to
deserve encouragement to proceed further.’” Id. (quoting Martinez, 566 U.S. at 14, which cited

Miller-El v. Cockrell, 537 U.S. 322 (2003)).
If the Superior Court did not adjudicate a claim on the merits, this Court must determine
whether that was because Petitioner procedurally defaulted it. If the claim is not defaulted, or if
Petitioner has established grounds to excuse his default, the standard of review at 28 U.S.C.
§ 2254(d) does not apply and the Court reviews the claim de novo.18 See, e.g., Appel v. Horn, 250
F.3d 203, 210 (3d Cir. 2001). However, as previously explained, this Court applies a de novo
review only if the Superior Court did not provide an alternative adjudication on the merits. See,
e.g., Rolan, 680 F.3d at 320.
D. The Strickland Standard
Most of Petitioner’s claims assert that trial counsel provided him with ineffective

assistance. In one claim (Claim 6) he asserts that direct appeal counsel was ineffective. These
claims are governed by the standard set forth by the Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984). Strickland recognized that a defendant’s Sixth Amendment right to the
assistance of counsel for his defense entails the right to be represented by an attorney who meets

18 In all cases and regardless of whether the standard of review at § 2254(d) applies, a state court’s
factual determinations are presumed to be correct under § 2254(e)(1) unless Petitioner rebuts that
presumption by clear and convincing evidence. Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir.
2010); Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007) (“the § 2254(e)(1) presumption of
correctness applies regardless of whether there has been an ‘adjudication on the merits’ for
purposes of § 2254(d).”) (citing Appel, 250 F.3d at 210).
at least a minimal standard of competence.19 466 U.S. at 685-87. “[T]he Sixth Amendment does
not guarantee the right to perfect counsel; it promises only the right to effective assistance[.]”
Titlow, 571 U.S. at 24.
Under Strickland, it is Petitioner’s burden to establish that his “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.” Id. at 687. The Supreme Court has emphasized that “counsel should be
‘strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment[.]’” Titlow, 571 U.S. at 22 (quoting Strickland, 466
U.S. at 690); Richter, 562 U.S. at 104 (“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). Counsel cannot be
deemed ineffective for failing to raise a meritless claim. See, e.g., Preston v. Sup’t Graterford SCI,
902 F.3d 365, 379 (3d Cir. 2018).

Strickland also requires that Petitioner demonstrate that he was prejudiced by 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 the proceeding would have
been different.” Strickland, 466 U.S. at 694. Under Strickland, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 562 U.S. at 112.

19 Since the Fourteenth Amendment guarantees a criminal defendant pursuing a first appeal as of
right certain “minimum safeguards necessary to make that appeal ‘adequate and effective,’” Evitts
v. Lucey, 469 U.S. 387, 392 (1985) (quoting Griffin v. Illinois, 351 U.S. 12, 20 (1956)), including
the right to the effective assistance of counsel, id. at 396, the ineffective assistance of counsel
standard of Strickland applies to a claim that direct appeal counsel was ineffective. Smith v.
Robbins, 528 U.S. 259, 285 (2000); United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).
The Supreme Court in Strickland noted that although it had discussed the performance
component of an effectiveness claim prior to the prejudice component, there is no reason for an
analysis of an ineffectiveness claim to proceed in that order. 466 U.S. at 697. If it is more efficient
to dispose of an ineffectiveness claim on the ground that the petitioner failed to meet his burden

of showing prejudice, a court need address only that prong of Strickland. Id.
Pennsylvania courts typically articulate Strickland’s standard in three parts, while federal
courts set it out in two. The legal evaluation is the same, and the differences merely reflect a
stylistic choice on the part of state courts. See, e.g., Commonwealth. v. Mitchell, 105 A.3d 1257,
1266 (Pa. 2014) (“this Court has divided [Strickland’s] performance component into sub-parts
dealing with arguable merit and reasonable strategy. Appellant must, therefore, show that: the
underlying legal claim has arguable merit; counsel had no reasonable basis for his act or omission;
and Appellant suffered prejudice as a result.”); Commonwealth v. Sepulveda, 55 A.3d 1108, 1117-
18 (Pa. 2012) (“In order to obtain relief on a claim of ineffectiveness, a PCRA petitioner must
satisfy the performance and prejudice test set forth in Strickland[.]”).

Here, the Superior Court applied the correct Strickland analysis when it evaluated
Petitioner’s claims of ineffective assistance. Dixon III, 2017 WL 5946524 at *11. Therefore,
Petitioner cannot demonstrate that the Superior Court’s adjudication of any of his claims was
“contrary to” Strickland. Williams, 529 U.S. at 406.
Accordingly, with respect to those claims of ineffective assistance that the Superior Court
adjudicated on the merits, in order to overcome AEDPA’s standard of review Petitioner must
demonstrate that the Superior Court’s decision was: (1) an “unreasonable application of”
Strickland, 28 U.S.C. § 2254(d)(1); or (2) was “contrary to” or an “unreasonable application of”
of any other applicable Supreme Court decision, id.20
Finally, the Court notes that on those occasions when the Superior Court denied a claim,
at least in part, because he failed to establish Strickland’s deficient-performance prong, Petitioner

faces a particularly difficult burden. That is because “[e]ven 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. It is ‘all too tempting’ to ‘second-guess
counsel’s assistance after conviction or adverse sentence.’” Richter, 562 U.S. at 105 (quoting
Strickland, 466 U.S. at 689). When AEDPA’s standard or review applies, the burden upon a
petitioner “is all the more difficult.” As the Supreme Court explained:
[t]he standards created by Strickland and § 2254(d) are both “highly deferential,”
[Strickland, 466 U.S.] at 689; Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), and
when the two apply in tandem, review is “doubly” so, [Knowles v. Mirzayance, 556
U.S. 111, 123 (2009)]. The Strickland standard is a general one, so the range of
reasonable applications is substantial. [Id.] Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland's deferential standard.
Id. (parallel citations omitted).
E. Petitioner’s Claims
Claim One
Petitioner asserts that trial counsel was ineffective for failing to object to the addition of
the count of firearms not to be carried without a license in the Information in January 2009 since

20 In the instances in which the Superior Court, in adjudicating an ineffective assistance claim,
ruled on the merits of an underlying constitutional claim of error, this Court must apply § 2254(d)’s
standard of review to its adjudication of that underlying constitutional claim. See, e.g., Mathias v.
Superintendent Frackville, 876 F.3d 462, 479-80 (3d Cir. 2017).
that count was not included in the police complaint, and/or for failing to object to the October 2010
amendment to the Information to include the charge of person not to possess a firearm. (ECF 1 at
8.)
The Superior Court denied this claim on the merits, explaining that under the law in

Pennsylvania, courts may allow amendment of a criminal information so long as the amendment
does not prejudice the defense. Dixon III, 2017 WL 5946524 at *11-12 (citing Pa.R.Crim.P. 564;
Commonwealth v. Williams, 166 A.3d 460, 464 (Pa. Super. 2017); Commonwealth v. Mosley, 585
A.2d 1057, 1059-60 (Pa. Superior Ct. 1991); Commonwealth v. Stanley, 401 A.2d 1166, 1175 (Pa.
Super. Ct. 1979.)) The Superior Court held that the amendment to the Information did not run afoul
of state law, id., and this Court is bound by that state-law determination.
Counsel cannot be found to be ineffective for failing to raise a meritless claim, and
Petitioner cannot establish that he was prejudiced by trial counsel’s failure to raise the objections
Petitioner claims he should have raised. Therefore, the Superior Court’s adjudication of Claim One
was not an “unreasonable application of” Strickland. Accordingly, Claim One is denied.

Claim Two
Petitioner alleges that “trial counsel rendered ineffective assistance in reference to the
alleged statements he made” to Det. McGee on November 11, 2008 at Mercy Hospital. (ECF 1 at
10.) He asserts that those statements were made when he “was sedated [and] unable to understand
any of his Miranda rights[.]” (Id.)
There are several problems with this claim. First, Petitioner did not raise this ineffective
assistance claim to the Superior Court in his PCRA proceeding and Petitioner admits that it is
procedurally defaulted. (ECF 15 at 1.) Second, trial counsel did contest the admissibility of
Petitioner’s statements to Det. McGee in the pre-trial motion to suppress in which he argued,
among other things, that Petitioner was impaired at the time he made the statement because he was
on a morphine drip and taking Percocet at the time he gave it. (Trial Tr. at 9-28.) The trial court,
after reviewing Petitioner’s medical records for the date in question, denied the suppression
motion. In so holding, it credited Det. McGee’s suppression-hearing testimony that Petitioner was

alert and did not appear to have any problems understanding what Det. McGee said to him during
the November 11, 2008 interview. (Id. at 12-13, 17, 28.)
Petitioner does not assert what, if anything, his trial counsel should have done differently
in litigating the suppression motion. He only faults trial counsel for failing to “preserve to issue”
in “post-verdict” motions. (ECF 1 at 10.) However, since trial counsel pursued a pre-trial
suppression motion on the matter, the issue did not have to be “preserved” for appellate review
by raising it in a post-trial motion.21
Based upon the foregoing, Claim Two is denied because it is procedurally defaulted and
also because it has no merit.
Claim Three

Petitioner asserts in Claim Three that trial counsel was ineffective for failing to object to
the testimony of the Commonwealth’s expert, Walter Lorenz, who stated that the DNA evidence
recovered from the grip of the .22 caliber pistol was consistent with Petitioner’s DNA profile and
inconsistent with that of the victim or Edward. (ECF 1 at 11.) The Superior Court denied this claim
on the merits because Petitioner failed to explain what objection trial counsel should have raised
to Lorenz’s testimony. Dixon III, 2017 WL 5946524 at *13. It also pointed out that, as the PCRA

21 As explained above, on direct appeal Petitioner alleged that the trial court erred in denying the
suppression motion. (See Dixon II, Resp’s Ex. 17 at 169; Resp’s Ex. 14 at 96-97.) Petitioner does
not raise that claim in this federal habeas proceeding, as a claim of ineffective assistance of counsel
is distinct and different than a stand-alone claim of trial court error. See, e.g., Gattis v. Snyder, 278
F.3d 222, 238 n.6 (3d Cir. 2002).
court explained, “[t]he testimony with respect to this firearm showed an adequate chain of custody
was maintained with respect to the collection and testing of the sample[.]” Id.
Similarly, Petitioner does not explain in his habeas petition what meritorious objection to
Lorenz’s testimony was available to the defense that trial counsel did not make. Petitioner simply

has not satisfied his burden of demonstrating that the Superior Court’s decision was an
“unreasonable application of” Strickland. Therefore, Claim Three is denied.
Claim Four
Petitioner asserts that trial counsel was ineffective for failing to investigate the origins of
the white T-shirts investigators found in Edward’s SUV in order to counter the Commonwealth’s
evidence that those T-shirts likely were stolen from the victim’s clothing store. (ECF 1 at 13.)
Petitioner provides no alternative explanation regarding where the T-shirts might have come from.
Nor does he explain what information trial counsel would have learned had he investigated the
origins of the T-shirts.
The Superior Court denied this claim on the merits, concluding that Petitioner failed to

demonstrate the requisite prejudice to prevail under Strickland. Dixon III, 2017 WL 5946524 at
*13 n.10. Specifically, it held that “[t]he evidence of guilt was so overwhelming that any
determination that the sports t-shirts at issue were not from [the victim’s] store would have been
insignificant by comparison[,]” and, therefore, Petitioner “failed to establish a reasonable
probability” that the outcome of his trial would have been different. (Id.)
There is no basis for this Court to question the Superior Court’s adjudication of this claim.
The white T-shirts recovered from Edward’s SUV were just one of the many types of evidence the
Commonwealth introduced at Petitioner’s trial to prove that Petitioner and Edward were the
perpetrators of the crimes at CC&M on November 8, 2008. The Superior Court appropriately
looked to the strength of the evidence of Petitioner’s guilt to determine that he was not prejudiced
by trial counsel’s alleged failure to investigate the origins of those T-shirts and its decision to deny
Claim Four was not an “unreasonable application of” Strickland. Buehl v. Vaughn, 166 F.3d 163,
172 (3d Cir. 1999) (“It is firmly established that a court must consider the strength of the evidence

in deciding whether the Strickland prejudice prong has been satisfied.”). Therefore, Claim Four is
denied.
Claim Five
Petitioner filed a civil complaint against trial counsel in September 2009 in which he
asserted causes of action in negligence and negligent infliction of emotional distress for failing to
take calls from Petitioner and based on the brevity and infrequency of visits between them. (Resp’s
Ex. 6 at 37-43.) The docket sheet for Petitioner’s civil action does not reflect that the complaint
was served on trial counsel. (Resp’s Ex. 5 at 36.) In any event, the Common Pleas Court judge to
whom the case was assigned dismissed the complaint on October 13, 2009 (less than a month after
it was filed and more than one year before Petitioner’s trial) for failure to state a claim that would

have any basis for relief in law or in fact. (Resp’s Ex. 7 at 44-45.) No appeal was taken from this
order. (Id.)
In Claim Five, Petitioner contends that trial counsel was ineffective because Petitioner’s
prior civil action against him created a conflict of interest and, as a result, trial counsel “failed to
undertake the best possible means of representation, resulting in Petitioner being wrongfully
convicted.” (ECF 1 at 17.) In rejecting this claim, the Superior Court held that Petitioner failed to
demonstrate that trial counsel was operating under a conflict of interest at the trial. Dixon III, 2017
WL 5946524 at *14. It further held that Petitioner “failed to explain how the alleged conflict of
interest affected trial counsel’s representation of him.” Id.
Petitioner has not demonstrated that the Superior Court’s adjudication of Claim Five was
an “unreasonable application of” Strickland or any other Supreme Court precedent. Therefore,
Claim Five is denied.
Claim Six

Petitioner asserts that Attorney Coffey was ineffective for failing to raise on direct appeal
claims of trial counsel’s ineffectiveness. As previously noted, however, under Pennsylvania law
ineffective assistance of counsel claims are to be raised in a PCRA proceeding, not on direct
appeal. Grant, 813 A.2d at 738; see also Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa.
2013) (setting forth the narrow exceptions to this general rule, none of which apply here). Thus,
as the Superior Court held, it was not appropriate for Attorney Coffey to raise ineffective assistance
of trial counsel claims in the direct appeal. Dixon III, 2017 WL 5946524 at *14.
The Superior Court’s adjudication of Claim Six was a reasonable application of Strickland
and the claim has no merit. Therefore, it is denied.
Claim Seven

Petitioner asserts that trial counsel was ineffective for failing to object when the prosecutor
allegedly impermissible struck jurors because of their race, in violation of Batson v. Kentucky, 476
U.S. 79 (1986). In Batson, the Supreme Court held that a prosecutor’s purposeful racial
discrimination in the selection of the jury violated the state prisoner’s equal protection rights under
the Fourteenth Amendment.
When determining whether there has been purposeful discrimination in the striking of a
prospective juror, the trial court is to engages in a three-step process. First, a defendant must make
a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second,
if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror
in question. Third, in light of the parties’ submissions, the trial court must determine whether the
defendant has shown purposeful discrimination. Batson, 476 U.S. at 96-98; see also Snyder v.
Louisiana, 552 U.S. 472, 476-77 (2008).
In denying Claim Seven, the Superior Court first held that there was no evidence in the

certified record of the racial profile of the venirepersons against whom the prosecution used its
preemptory strikes. Dixon III, 2017 WL 5946524 at *15. This was both reasonable and correct, as
there is nothing factually in the record that supports Petitioner’s claim.
However, the record does contain clues as to what occurred during voir dire. Specifically,
Attorney Patterson, in his no-merit letter, represented that he reviewed trial counsel’s case file and
his jury selections notes. (Resp’s Ex. 32 at 325.) His review of those notes indicated that the
prosecution used four peremptory challenges: the first was used to strike a black male; the second
a white female, the third a white male, and the fourth an unidentified male. (Id.) The PCRA court
gave an identical account of jury selection. (Resp’s Ex. 38 at 389.)22
The Superior Court considered this information and explained that “even if it accepted the

PCRA court’s representation of the missing evidence, [Petitioner] still could not establish an
improper pattern of purposeful exclusion of members of [his] race, given that at least half of those
removed were of a different race.” Dixon III, 2017 WL 5946524 at *15.
Notably, Petitioner does not give an alternative account of what happened at jury selection.
The Superior Court recognized this when it observed that Petitioner “does not contradict the PCRA
court’s description of the stricken venirepersons.” Id. Similarly, in this federal habeas case
Petitioner asserts only that trial counsel should have raised a Batson violation, but he does not

22 It is not clear from the PCRA court’s opinion whether it was relying upon Attorney Patterson’s
summary or if it independently reviewed its own juror sheet.
provide any facts to support this claim. (ECF 1 at 20.) As with many of his claims, he simply
contends that his rights were violated without providing any factual support.
Based upon the foregoing, Petitioner has not met his burden of establishing that the
Superior Court’s adjudication of Claim Seven was an “unreasonable application of” Strickland, or

that it was “contrary to” or an “unreasonable application of” Batson. Accordingly, the Superior
Court’s adjudication withstands review under § 2254(d)(1) and Claim Seven is denied.
Claim Eight
Under the Pennsylvania Rules of Criminal Procedure, a criminal defendant must be brought
to trial within either 365 or 180 days, depending on his or her pre-trial incarceration status.
Pa.R.Crim.P. 600. Generally, incarcerated defendants must be brought to trial within 180 days.
Pa.R.Crim.P. 600(b). In Petitioner’s case, the Commonwealth was required to bring him to trial
within 365 days, even though he was incarcerated prior to trial. That was because the 180-day rule
applies only where incarcerated defendants are entitled to release on bail; if they are not entitled
to bail, the ordinary 365 day rule applies. Id. Petitioner was not eligible for bail because he had

been accused of a crime punishable by life in prison. Pa. Const. art. I,§ 14; 18 Pa.C.S. § 1102
(murder carries a maximum penalty of life in prison (or death)).
In Claim Eight, Petitioner contends that “trial counsel was ineffective for failing to file a
motion to dismiss the charges against [him] based on violations of [his] Rule 600 speedy trial
rights.” (ECF 1 at 22.) The Superior Court denied this claim on the merits because Rule 600 has a
number of tolling provisions. Pa.R.Crim.P. 600(c). It addressed all of the time that was excludable
or excusable in Petitioner’s case and held that there was no violation of Petitioner’s speedy trial
rights under Rule 600 because Petitioner’s trial was held within the allowable 365 days. Dixon III,
2017 WL 5946524 at *15.
Because this Court is bound by the Superior Court’s Rule 600 calculation since that is a
state court interpretation of state law, Petitioner cannot demonstrate that trial counsel performed
deficiently for not filing a motion to dismiss premised upon an alleged violation of his speedy-trial
rights or that he was prejudiced. Accordingly, the Superior Court’s adjudication of Claim Eight

survives review under §2254(d)(1) and is denied.
Claim Nine
In Claim Nine, Petitioner asserts that trial counsel was ineffective for failing to object to
the jury instruction on reasonable doubt because the trial judge improperly equated reasonable
doubt to his own personal experiences. (ECF 1 at 23-24.)
By way of background, during the closing jury charge the trial court gave the following
instruction on reasonable doubt:
[The] presumption of innocence can be overcome if and only if you are
individually and collectively convinced that the Commonwealth has met its burden
by proving the elements of the offenses charged beyond a reasonable doubt.
A reasonable doubt has been defined as that which would cause you to pause
or hesitate before doing something important in your own personal affairs. It must
fairly arise from the evidence that’s been presented or lack thereof.
The Commonwealth’s burden is to prove its case beyond a reasonable
doubt. It is not required to prove its case to a mathematical certainty or even to
demonstrate the impossibility of innocence. It is only beyond a reasonable doubt.
If you look at that term grammatically, it may help you understand it a little
bit better.
It is a noun modified by an adjective. You may have a doubt. The ultimate
question, however, is whether or not that doubt is reasonable.
An example that I often use occurred a couple of summers ago when one of
my sons came over to our house and asked me if I would follow him down to the
car dealer because he wanted to drop his car off for inspection and he didn’t want
to stay there. I did. I brought him back to the house. We did a few things, and then
he told me, as he does all too often, that he’s hungry. So I made him lunch.
We got a call after the lunch. His car was ready and we could go back to
pick it up. We got back in my car.
While driving to the car dealership, he said: Did you turn off the stove? I
had a doubt. I had a question. The ultimate question was whether or not I did. I
worked through the process.
When I thought about what had happened, then I said: Yes, I did. He said:
Are you sure? Well, he wasn’t anywhere near the stove, but I was. I said: Yes, I
did.
We drove to pick up his car. We came back to our house, and the first thing
he did was go over to the stove. I didn’t have to do that, because I knew what I had
done. Initially I had a doubt. But ultimately I worked through the process, went
back through the facts, and then made the determination that doubt was not
reasonable.
If you believe that the Commonwealth has met its burden of proving its case
beyond a reasonable doubt, you would find the defendant guilty.
If you believe that the Commonwealth has not met that burden, you must
find the defendant not guilty.
(Trial Tr. at 63-65.)
In his PCRA appeal, Petitioner argued that trial counsel was ineffective for failing to object
to the reasonable doubt instruction, but he did not explain what objection trial counsel should have
raised. Dixon III, 2017 WL 5946524 at *16. Therefore, the Superior Court explained that it would
look at the cases Petitioner cited in his appellate brief (Victor v. Nebraska, 511 U.S. 1 (1994) and
Cage v. Louisiana, 498 U.S 39 (1990) (per curiam)) to determine if the language in the instruction
ran afoul of those decisions. Id. at *16-17. It concluded that none of the challenged language in
those opinions was given at Petitioner’s trial. Id. at *17. The Superior Court further held that any
more specific claim was waived for failure to adequately plead it. Id. at *17 n.16. At the end of its
analysis, it cautioned the trial court judge “that a charge equating reasonable doubt to a judge’s
personal experiences may raise questions we do not reach here.” Id.
No doubt prompted by that the Superior Court’s observation, Petitioner argues before this
Court for the first time in Claim Nine that trial counsel was ineffective because he should have
objected to the illustration the trial court used to explain the concept of reasonable doubt. (ECF 1
at 23-24.) Specifically, Petitioner contends that the trial court’s instruction violated due process
because it suggested a higher degree of doubt than is required for acquittal under the reasonable
doubt standard.
Respondents contend that Claim Nine is procedurally defaulted because Petitioner did not
raise it in state court. Petitioner admits that he procedurally defaulted this claim but asserts that he
can overcome the default under Martinez because his PCRA counsel should have raised it.
Therefore, Petitioner argues, this Court must review Claim Nine de novo. (ECF 15.)

Petitioner’s Martinez argument is not particularly persuasive. The Superior Court reviewed
the claims he listed in his pro se appellate brief on the merits if he developed that claim and
adequately explained the basis for it. That included the general claim he raised regarding the
reasonable doubt instruction. Therefore, any failure to exhaust the particular claim of ineffective
assistance Petitioner raises for the first time in Claim Nine is attributable solely to him, not PCRA
counsel.
However, Respondents argue in the alternative that Claim Nine has no merit. Because the
Court may simply review Claim Nine de novo and deny it on that basis, the Court will do so here.
Lambrex v. Singletary, 520 U.S. 518, 525 (1997) (the court may avoid the more complex issue of
procedural default and evaluate the claim on the merits if it is more efficient to do so).

Regarding the merits of this claim, even though it is based on ineffective assistance, a
review of the constitutional law on jury instructions is necessary. When language in jury
instructions is challenged, the language in question “‘may not be judged in artificial isolation,’ but
must be considered in the context of the instructions as a whole and the trial record.” Estelle, 502
U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The court must then consider
“‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a
way’ that violates the Constitution.” Id. (quoting Boyde v. California, 494 U.S. 370, 380 (1990));
see also Victor v. Nebraska, 511 U.S. 1, 6 (1994); Smith v. Horn, 120 F.3d 400, 411 (3d Cir. 1997).
There is no particular set of words required to advise the jury of the definition of reasonable
doubt. Victor, 511 U.S. at 5. Instead, the instruction, taken as a whole, must correctly convey the
concept to the jury. Id. The Court of Appeals has explained:
The Constitution requires that the government prove every element of [a] criminal
charge beyond a reasonable doubt to obtain a conviction. In re Winship, 397 U.S.
358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970). While a trial court must
advise the jury of the government’s burden of proof, no particular set of words is
mandated. Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d.
583 (1994). Due process is satisfied if the instructions, taken as a whole, accurately
convey the concept of reasonable doubt to the jury. Id. (citing Holland v. United
States, 348 U.S. 121, 140, 75 S. Ct. 127, 137, 99 L. Ed. 150 (1954)). Thus, although
we have considered each of [defendant’s] criticisms, ultimately we must determine
whether the entire instruction the jury received led it to apply the correct standard
of proof, if not, [defendant’s] conviction will be reversed. Sullivan v. Louisiana,
508 U.S. 275, 279-80, 113 S. Ct. 2078, 2081-82, 124 L. Ed. 2d 182 (1993).
United States v. Thayer, 201 F.3d 214, 221 (3d Cir. 1999), abrogation on other grounds recognized
by Fahie v. Virgin Islands, 858 F.3d 162 (3d Cir. 2017)). The reviewing court’s task is to determine
“not whether the instruction ‘could have’ been applied in an unconstitutional manner, but whether
there is a reasonable likelihood that the jury did so apply it.” Victor, 511 U.S. at 6 (emphasis in
original).
In this case, when the trial court charged on reasonable doubt, it used an example of leaving
home and then having doubts as to whether a burner on the stove was left on. (Trial Tr. II at 64-
65.) This illustration came after the trial court expressly and unambiguously told the jury that
petitioner was presumed to be innocent, and that the presumption of innocence could only be
overcome if the jurors individually and collectively were convinced that the Commonwealth had
met its burden of proving the elements of the charged offenses beyond a reasonable doubt. Id. at
63. The trial court then gave the standard definition of reasonable doubt as a doubt that would lead
a person to pause or hesitate before doing something important in his or her own personal affairs.
Id.
Considered in the context of the instruction as a whole, Petitioner has not shown that there
is a reasonable likelihood that the jury applied the challenged instruction in a way that violated his
due process rights. Since counsel cannot be found to be ineffective for failing to raise a meritless
objection, Petitioner has not established Strickland’s first prong (that trial counsel’s

“representation fell below an objective standard of reasonableness” for failing to object to the
instruction). 466 U.S. at 688. For this reason alone, Claim Nine fails.
Alternatively, Petitioner has not demonstrated that he was prejudiced by trial counsel’s
alleged failure to object to the instruction. Petitioner argues that because he is asserting that trial
counsel was ineffective for failing to object to the reasonable doubt instruction, he does not have
to demonstrate Strickland’s prejudice prong. (ECF 15 at 13-14 (citing Weaver v. Massachusetts,
— U.S. —, 137 S. Ct. 1899 (2017)). The Court of Appeals recently rejected the same argument in
Baxter v. Sup’s Coal Township, 998 F.3d 542 (3d Cir. 2021), petition for cert. filed (U.S. Sept. 30,
2021) (No. 20-1259). It held that where, as is the case here, a reasonable doubt instruction is given,
a petitioner who is claiming that instruction contains an error within the context of an ineffective

assistance of trial counsel claim must prove he was prejudiced under the Strickland standard. Id.
at 548-49.23

23 In Baxter, the Court of Appeals explained that “[c]ontrary to [the petitioner’s] argument, Weaver
did not establish that an erroneous reasonable doubt instruction is a structural error that warrants
presumptive prejudice. In Weaver, [which address trial counsel’s failure to object to the closure of
the courtroom during jury selection,] the Supreme Court acknowledged that its holding did not call
into question precedents determining that certain structural errors, such as an erroneous jury
instruction, require automatic reversal if raised on direct appeal. Furthermore, the Court declined
to address, in the context of structural errors other than the one at issue in Weaver, ‘whether the
result should be any different if the errors were raised instead in an ineffective-assistance claim on
collateral review,’ as is the here.” 998 F.3d at 548 n.6 (quoting Weaver, 137 S. Ct. at 1912
(additional citations omitted).
Under the circumstances of this case, where the language surrounding the trial court’s
“personal experience” example correctly expressed the reasonable doubt standard, and in light of
the strength of the evidence the Commonwealth introduced at Petitioner’s trial establishing his
guilt, Petitioner has not demonstrated that he was prejudiced when trial counsel did not object to

the instruction. Id. at 549 (looking to the entire instruction and the evidence against the petitioner
and concluding that, “[i]n light of this evidence, [the petitioner] cannot show he was prejudiced by
the phrasing of the example in an otherwise correct reasonable doubt jury instruction.”)
Based upon the foregoing, Claim Nine fails under a de novo review. Therefore, it is denied.
Claim Ten
Second-degree murder is defined under Pennsylvania law as a homicide that “is committed
while defendant was engaged as a principal or an accomplice in the perpetration of a felony[,]”
including robbery. 18 Pa.C.S. § 2502(b). The trial court, in its charge, told the jurors that a second
degree murder is a killing that occurs “during the commission of certain felonies.” (Trial Tr. II at
72-73.) The Court then instructed: “In order for you to find the defendant guilty of the crime of

second degree murder, you must be satisfied that [the victim] was killed; second, that the defendant
did so while in the course of committing or attempting to commit a robbery; and third, that he was
acting with malice.” Id. at 73.
In Claim Ten, Petitioner contends that trial counsel was ineffective for failing to object to
the instruction given to the jury on second-degree murder because “he was not the actual slayer
nor was he involved in the underlying felony.” (ECF 1 at 25.) His assertions clearly have no basis
in light of the evidence introduced at his trial. Moreover, in denying this claim, the Superior Court
cited its own precedent that upheld the exact language the trial court used. Dixon III, 2017 WL
5946524 at *18-19. It held that the trial court’s instruction was proper under state law under the
circumstances of Petitioner’s case, where the Commonwealth’s theory was that Petitioner shot the
victim while engaging in the robbery. Id.
This Court is bound by the Superior Court’s determination that the instruction was
appropriate under Pennsylvania law. See, e.g., Priester, 382 F.3d at 402; see also Real v. Shannon,

600 F.3d 302, 309-10 (3d Cir. 2010) (“A federal court may re-examine a state court’s interpretation
of its own law only where this interpretation appears to be an obvious subterfuge to evade
consideration of a federal issue. Because there is nothing in the record to suggest that the Superior
Court was attempting to evade consideration of a federal issue, we must accept that Court’s
conclusion that the trial court’s instruction was consistent with Pennsylvania law.”) (internal
quotations and citations omitted).
In conclusion, there is no basis for this Court to conclude that the Superior Court’s denial
of Claim Ten was an “unreasonable application of” Strickland. Therefore, Claim Ten is denied.
Claim Eleven
Petitioner argues that trial counsel conducted no investigation and had no strategy at trial.

He asserts that trial counsel should have stuck to “the truth” and told the jury that he was merely
present at the scene of the crime and that there was no “conspiratorial design” between him and
the shooter. (ECF 1 at 27.)
In denying this claim, the Superior Court first quoted the PCRA court’s opinion, in which
it had explained:
This claim…is refuted by the record. [Trial counsel] knew that the evidence that
was going to be presented by the Commonwealth would place [Petitioner] and ...
[Edward] at the scene of the homicide. It was also clear that [Petitioner] was shot
at [the victim’s] store and was driven by [Edward] to the hospital where he was
treated. It was also evident that he had given multiple, conflicting statements about
his whereabouts and involvement to the police and that [Edward] had also given
multiple and conflicting statements about what they were doing at the time the
homicide occurred. There was the fact that the DNA evidence was on the murder
weapon and that DNA evidence established that it was [Petitioner’s] DNA on that
murder weapon. The record in this case clearly shows that [trial counsel] was
prepared and attempted to defend [Petitioner] in the best possible manner in spite
of the overwhelming evidence against him.
Dixon III, 2017 WL 5946524 at *19.
The Superior Court also cited state law that explains that it is insufficient for a PCRA
petitioner to state an alternative course that counsel could have chosen and then baldly state an
entitlement to relief. It explained that the Supreme Court of Pennsylvania:
has previously held PCRA hearings are not discovery expeditions, but are
conducted when necessary to offer the petitioner an opportunity to prove his
explicit assertion of ineffectiveness raising a colorable claim about which there
remains an issue of material fact. Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096,
1107 (2012). Particularly when PCRA claims require examination of trial strategy,
it is not enough to take a cold record, state alternative choices counsel could have
made, and then declare an entitlement to relief. Id. Mere conclusory allegations,
without some proffer as to what counsel would say in response to the allegations
are insufficient to establish entitlement to relief. Id. Thus a supporting document
from counsel stating his reasons for the course chosen is generally necessary to
establish potential entitlement to a hearing. Id. See, e.g., Pa.R.Crim.P.
902(A)(12)(b) (PCRA petition shall contain facts supporting each ground for relief;
if supporting facts do not appear of record “affidavits, documents and other
evidence showing such facts” to be identified).
Id. (quoting Commonwealth v. Cousar, 154 A.3d 287, 299-300 (Pa. 2017) (emphasis added by
Superior Court).
The Superior Court further held that Petitioner “makes the bald assertion” that he was
prejudiced by trial counsel’s alleged deficient performance “but he does not articulate what
prejudice he suffered as a result of trial counsel’s actions or lack thereof, and ‘Strickland prejudice
is not proved by such conclusory characterization[.]’” Id. (quoting Cousar, 154 A.3d at 309).
The Superior Court’s analysis of Claim Eleven comports with Strickland, where the
Supreme Court observed:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel’s was unreasonable. A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the difficulties inherent
in making the evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.

466 U.S. at 689 (internal citations and quotations omitted). The Supreme Court also has instructed
that “[i]t should go without saying that the absence of evidence cannot overcome the ‘strong
presumption that counsel’s conduct [fell] within the wide range of reasonable professional
assistance.’” Titlow, 571 U.S. at 23 (quoting Strickland, 466 U.S. at 689).
Accordingly, the Superior Court reasonably applied Strickland to Claim Eleven and,
therefore, its adjudication of that claim survives review under § 2254(d)(1). Therefore, Claim
Eleven is denied.
Claim Twelve
Petitioner contends in Claim Twelve that the prosecution violated the rule of Brady v.
Maryland, 373 U.S. 83 (1963) because it allegedly suppressed evidence that, during surgery he
underwent while lodged in the Allegheny County Jail, a .22 caliber bullet was removed from his
back and turned over to the Allegheny District Attorney’s Office. (ECF 1 at 29.) His assertion is
that this alleged bullet would have proved that he was not the shooter because the victim was also
shot with a .22 caliber weapon. (Id.)
To demonstrate a Brady violation, Petitioner must show that: (1) the evidence at issue was
favorable to the defense, either because it was exculpatory or because it was impeaching; (2) the
Commonwealth suppressed the evidence; and (3) the evidence was material. Strickler v. Greene,
527 U.S. 263, 281-82 (1999). The nondisclosed evidence is material “if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Dennis, 834 F.3d at 309 (internal quotations and citations omitted).
In addressing this claim, the Superior Court observed that the PCRA Court described it as
“nonsensical.” Dixon III, 2017 WL 5946524 at *20. The Superior Court then held that Petitioner

met none of the elements of a Brady claim and was therefore not entitled to relief. (Id.)
There is no basis for this Court to conclude that the Superior Court’s decision was “contrary
to” or an “unreasonable application of” Brady. Moreover, Petitioner has not demonstrated that he
is entitled to relief under even de novo review because the brief factual assertions he makes to
support Claim Twelve—that a .22 caliber bullet was surgically removed from his back at some
point in time when he was in the Allegheny County Jail and then turned over to District Attorney’s
Office—falls far short of the type of assertions that would support, or warrant further exploration
of, a Brady claim.24 (ECF 1 at 29.) For example, Plaintiff does not provide the Court with
information regarding the date of his surgery, his medical records regarding that surgery, or an
affidavit from his trial counsel indicating that information regarding that surgery, including what

may have been recovered during it, was not disclosed to the defense.
The Court further notes that at Petitioner’s trial the prosecution’s ballistics expert,
Dr. Levine, testified that he examined three CT scans of Petitioner’s spinal area “to see if he could
determine what kind of object was in [Petitioner] and if [he] could determine the caliber of that
object.” (Trial Tr. at 282.) He concluded that the bullet, which apparently was still lodged inside
Petitioner at the time of trial, likely was a .38 caliber and that a .22 caliber bullet was “much too

24 A review of the brief Petitioner filed with the Superior Court provides no further relevant
information. In it, Petitioner repeated the same allegations he makes to this Court in his Petition
and then asserted that he “was shot in the back with a .22 caliber bullet” without citing any
evidence to support that assertion. (Resp’s Ex. 39 at 423-24.)
small” to be the caliber bullet lodged in Petitioner. (Trial Tr. at 282-285). Petitioner has not
directed this Court to any evidence that Dr. Levine’s testimony was untruthful, that the prosecution
knew his testimony was wrong, or that any information relevant to Dr. Levine’s testimony was not
disclosed to the defense.

Based upon the foregoing, Claim Twelve is denied.
Remaining Claims
Petitioner raises numerous claims which the Superior Court did not adjudicate on the merits
and held were waived because Petitioner failed to develop them in his appellate brief. Dixon III,
2017 WL 5946524 at *21. These claims involve seven claims of ineffective assistance of trial
counsel and one claim of trial court error.
Petitioner contends that trial counsel was ineffective for failing to: object to the fact that
the District Attorney of Allegheny County did not sign his criminal complaint (Claim 13);
“preserve the issue that a thorough inventory of the truck was not conducted by crime scene
detectives” (Claim 14); challenge the introduction of the .22 caliber handgun (Claim 15); object to

the prosecutor’s argument that he “stashed the gun in the back of” Edward’s SUV (Claim 16);
conduct a pre-trial investigation of the SUV for fingerprints and other physical evidence (Claim
17); object to the trial court’s alleged vouching for Dr. Levine (Claim 19); and retain an DNA
expert for the defense (Claim 23). (ECF 1 at 30-44.)
The claim of trial court error is Claim 18, in which Petitioner asserts “the trial court erred
when it did not include Petitioner’s first sentencing hearing where trial counsel was forced to
withdraw from his representation of Petitioner.”25 (ECF 1 at 41.)

25 Claim 18 is exceptionally unclear, and the Court cannot discern what Petitioner means by the
trial court’s failure to “include” a sentencing hearing. Respondents explain the record is not even
Footnote continue on next page…
Respondents argue that all of these claims are procedurally defaulted in light of the
Superior Court’s determination that Petitioner did not “explain, develop or support[ ] [them] by
the record factually or legally.” Dixon III, 2017 WL 5946524 at *21. Petitioner admits that all of
the claims at issue here are procedurally defaulted. He makes the broad assertion that the Court

should excuse the default of any claim the Superior Court deemed to be waived under Martinez
because his PCRA counsel was ineffective for failure to raise the claim. (ECF 1 at 46; ECF 15 at
1.) However, Petitioner must do more than simply cite Martinez and include boilerplate assertions
that his PCRA counsel was ineffective in order to overcome the default of a claim of ineffective
assistance of trial counsel. Rather, as discussed above, he must explain why PCRA counsel
rendered ineffective assistance for failing to raise the specifical claim at issue, and he must also
demonstrate that the defaulted claim is “substantial.” Martinez, 566 U.S. at 17; Workman, 915 F.3d
at 938. Petitioner has not established these two requisite factors with respect to any of his defaulted
claims of trial counsel’s ineffectiveness. The Court further notes that Martinez does not apply to
Claim 18, since that is a claim of trial court error and the holding in Martinez is limited to defaulted

claims asserting that trial counsel was ineffective. See, e.g., Davila, 137 S. Ct. at 2062-70.
Petitioner’s final two claims (Claims 20 and 21) are not cognizable in a federal habeas
proceeding. In Claim 20, Petitioner argues that his due process rights were violated because the
trial court did not provide him with a copy of the trial transcript during the PCRA proceeding.
(ECF 1 at 44.) Respondents counter that there can be no dispute that PCRA counsel received and
reviewed the transcripts and that it was Petitioner’s responsibility to obtain a copy from one of

clear that a first sentencing hearing occurred (the trial court’s docket sheet does not reflect that
more than one sentencing hearing occurred).
them. In any event, Respondents are correct that alleged errors made during the PCRA proceeding
are not cognizable in a federal habeas action. As the Court of Appeals has explained:
The federal courts are authorized to provide collateral relief where a petitioner is in
state custody or under a federal sentence imposed in violation of the Constitution
or the laws or treaties of the United States. 28 U.S.C. §§ 2254, 2255. Thus, the
federal role in reviewing an application for habeas corpus is limited to evaluating
what occurred in the state or federal proceedings that actually led to the petitioner’s
conviction; what occurred in the petitioner’s collateral proceeding does not enter
into the habeas calculation.
Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (internal citations omitted) (emphasis
added). See also Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004) (“[A]lleged errors in
collateral proceedings are not a proper basis for habeas relief from the original conviction.”).
As for Claim 21, Petitioner contends, without providing any specific factual support, that
his PCRA counsel were ineffective. (ECF 1 at 46.) This claim is not cognizable because Petitioner
did not have a federal constitutional right to counsel during his PCRA proceeding. Pennsylvania
v. Finley, 481 U.S. 551, 555 (1987). Therefore, he cannot receive habeas relief on a stand-alone
claim that his PCRA counsel was ineffective,26 a fact codified by statute at 28 U.S.C. § 2254(i),
which expressly provides that “[t]he ineffectiveness of counsel during Federal or State collateral
post-conviction proceedings shall not be ground for relief in a proceeding arising under section
2254.” See also Coleman, 501 U.S. at 752-53 (“There is no constitutional right to an attorney in
state post-conviction proceedings...Consequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.”)
In conclusion, Claims 13 through 19 and Claim 23 are denied because they are procedurally
defaulted. Claims 20 and 21 are denied because they are not cognizable grounds for federal habeas
relief.

26 PCRA counsel’s alleged ineffectiveness is relevant only to the extent that it is one of the factors
that must be established in order to avoid a default under Martinez.
III. 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
of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that
“[a] certificate of appealability may issue...only if the applicant has made a substantial showing of
the denial of a constitutional right.” Id. § 2253(c)(2).
“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, 529 U.S. at 484. Where the
district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate

that reasonable jurists would find the district court's assessment of the constitutional claims
debatable or wrong.” Id. Applying those standards here, jurists of reason would not find it
debatable whether each of Petitioner’s claims should be denied for the reasons given herein.
Accordingly, the Court will not issue a certificate of appealability on any of Petitioner’s claims.
IV. Conclusion
Based upon the foregoing, the Court will deny each of Petitioner’s habeas claims and will
deny a certificate of appealability with respect to each claim.
An appropriate Order follows.

/s/ Patricia L. Dodge
Date: December 13, 2021 PATRICIA L. DODGE
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417228. Public record. Not legal advice.