Opinion

HELMICK v. SMITH

Court: District Court, W.D. Pennsylvania
Filed: Feb 1, 2023
Cited by: 0 cases
Authority: More cited than 29.3%

“habeas proceedings are not the appropriate forum for Lambert to pursue claims of error at the PCRA proceeding.”

How later courts described this case

“habeas proceedings are not the appropriate forum for Lambert to pursue claims of error at the PCRA proceeding.”
abrogated on other grounds by Beard v. Kindler, 558 U.S. 53, 60-61 (2009)
‘counsel cannot be deemed ineffective for failing to raise a meritless claim’”
“Counsel will not be deemed ineffective for following their client’s wishes, so long as the client made an informed decision.”’

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PAUL CHARLES HELMICK, )

)

Petitioner, ) Civil Action No. 19-722

) Magistrate Judge Maureen P. Kelly

v. )

) Re: ECF No. 1

DISTRICT ATTORNEY OF WASHINGTON _ )

COUNTY, BARRY SMITH, Superintendent __)

State Correctional Institution at Houtzdale, )

and ATTORNEY GENERAL OF THE )

STATE OF PENNSYLVANIA, )

)

Respondents. )

CORRECTED MEMORANDUM OPINION

Paul Charles Helmick (“Petitioner”) is a state prisoner currently incarcerated at the State

Correctional Institution at Mercer (“SCI-Mercer”) in Mercer, Pennsylvania. Petitioner initiated

this action by filing a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in

State Custody (the “Petition”), ECF No. 1, in which he challenges his 2012 convictions in the

Court of Common Pleas of Washington County, Pennsylvania, for: attempted homicide in

violation of 18Pa.C.S.A. §§ 901(a) and 2501; aggravated assault in violation of

18 Pa. C.S.A. § 2701(a)(1); aggravated assault with a deadly weapon in violation of

18 Pa. C.S.A. § 2702(a)(4); and burglary in violation of 18 Pa. C.S.A. § 3502(a). ECF No. 1 at 2.

See Sentencing Tr., ECF No. 34-6 at 29-31; see also Com. v. Helmick, Docket No. CP-63-CR-

552-2012 (available at https://yjsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-

63-CR-0000552-2012&dnh=rOfx08tF Wk3 1 g3 X9NImTaw%3D%3D (last visited Feb. 1, 2023)).

On July 18, 2012, Petitioner was convicted after a jury trial at which he testified. Trial Tr.

dated July 18, 2012, ECF No. 34-3 at 9 and 128-29. On October 10, 2012, he was sentenced to an

aggregate term of imprisonment of 15 to 30 years, with financial penalties imposed as well.

ECF No. 1 at 1; Sentencing Tr., ECF No. 34-6 at 29-31.

For the reasons stated below, the Petition will be denied, and a certificate of appealability

will be denied.’

I. FACTUAL AND PROCEDURAL BACKGROUND

The Pennsylvania Superior Court summarized the relevant factual and procedural history

of this case as follows.”

This case stems from the victim, Lori Phillips, being struck in the

head with a sledgehammer by Petitioner on the morning of January

29, 2012. The victim testified that her two-year relationship with

Petitioner ended a few weeks before the incident occurred but stated

that they remained friends. [Trial Tr. dated July 17, 2012] at 34.

She testified that Petitioner had asked to speak with the victim on a

daily basis so he could hear her voice to help him get over the break-

up. Id. at 35.

The victim testified that on January 28, 2012 she invited Petitioner

to her apartment after he called her upset over the break-up. When

Petitioner arrived, the victim's friend, Tammy Sprowls (“Sprowls”),

was also at the apartment. Id. The victim could not recall how long

Petitioner was there as she had experienced memory loss since the

incident. Id. at 36-37. However, she did remember instructing

Petitioner and Sprowls to leave after Petitioner spilled vodka on her

during an argument. Petitioner and Sprowls left after the victim

threatened to call the police.

' Full consent of the parties to proceed before a United States Magistrate Judge was obtained on

December 21, 2022. ECF Nos. 11, 29, and 43.

> The Superior Court issued this recitation of the facts of Petitioner’s case in its opinion denying

his direct appeal. See Com. v. Helmick, 1600 WDA 2012, 2013 WL 11250751, at *1-4 (Pa. Super.

Ct. Nov. 12, 2013). The PCRA Trial Court adopted this recitation in its Order and Notice dated

March 17, 2017, in which it explained the reasons it intended to deny Petitioner’s PCRA petition.

PCRA Trial Ct. Op., ECF No. 18-1 at 289-292. In its order affirming the PCRA Trial Court, the

Superior Court, in turn, found that “the PCRA [Trial Court] fully and correctly set forth the relevant

facts” in its Order and Notice. PCRA Super. Ct. Op., ECF No. 18-1 at 282 and n.2.

Louis “Louie” Phillips (“Louie”), the victim's ex-brother-in-law,

visited her at the apartment around 5:00 a.m. Petitioner and Sprowls

then began repeatedly calling the victim. Id. at 39. Louie eventually

quit answering the phone, but not before Petitioner told the victim

“I know there is somebody up there, I'm going to kill you.” Id. at

40. Soon after this phone call, the victim heard a loud vehicle in the

parking lot which she thought sounded like Petitioner's pickup truck.

She looked out the window of her apartment and saw Petitioner park

his truck, exit the truck, and grab a sledgehammer while saying “’m

coming to get you.” Id. at 41.

Petitioner made his way into the apartment building where he

proceeded to strike the victim's apartment door with the

sledgehammer. The victim testified that she remained in the middle

of the entranceway that led up to her front door, and that she never

got near the front door while Petitioner was hitting it with the

sledgehammer. Petitioner broke the door down when the

sledgehammer connected on its third hit. Id. at 42. The last thing

the victim remembers while being in her apartment was Petitioner

standing in her front door after he broke it open. The next thing she

remembered was waking up in a medical helicopter, feeling blood

trickling down the back of her head, and hearing the flight medic

say “You’re not going to die on my shift.” Id.

The victim was flown to UPMC Presbyterian Hospital where she

remained for eleven days. She testified that her injuries were

significant and consisted of a right side skull fracture, six staples in

her head, trauma in the middle ear, calcium deposits in her ear due

to broken bones, consistent ringing in her right ear, a cracked rib,

and a blood clot in the left side of her head. She stayed at her

mother's house for about two weeks after being released from the

hospital. The victim still experiences dizzy spells, headaches, her

jaw cracking, her ear feeling like it is full of cotton, and persistent

ringing in her right ear. Id. at 43-44.

On cross-examination, the victim testified that she was with

Petitioner and Sprowls the night before the injury drinking vodka

mixed with Coke; the victim drank about three glasses but was still

aware of what was going on around her. The victim testified that she

thought the incident may have been an “accident” due to the

involvement of alcohol. Id. at 49. The victim does not remember

seeing a sledgehammer when Petitioner broke down the door, and

may have turned around when Petitioner entered her apartment. Id.

at 50-51.

Trisha Church (“Church”), the victim's neighbor, also testified for

the Commonwealth. Church recalled that she had previously seen

Petitioner in the building. Id. at 64-65. On the morning of

January 29, 2012, she heard three or four loud bangs on the victim’s

front door accompanied by screaming. She recalled hearing

someone say, “I killed the bitch dead” right before she exited her

apartment and entered the hallway. Id. at 66. Church found the

victim lying on the floor bleeding and unconscious. She stayed with

the victim until paramedics arrived. On cross-examination, she

testified that she had told a state trooper that during the banging she

heard a male voice say, “Where’s Louie, I'm going to find him and

kill him.” Id. at 69.

Tara Whiteman (“Whiteman”) lived directly across the hall from the

victim. Whiteman testified that while sleeping on the night of

January 29, 2012, she awoke to the sound of four very loud banging

or pounding sounds about 30 feet from her bedroom. Id. at 75-76.

Whiteman left her bedroom and walked out into the building

hallway where she saw Petitioner, who she had known most of her

life, walk out of the victim’s apartment with a sledgehammer and

close the door slowly behind him. When Whiteman asked what he

was doing, Petitioner responded, “I killed that bitch dead” as he

proceeded to leave the apartment building. Id. at 78. Whiteman

then pushed open the victim's door and found the victim lying face

down at the end of an entryway in a pool of blood with her feet

pointing towards the front door.

Photographs were taken of the dented front door, the stairwell

leading up to the hallway, the broken dead bolt and door frame, a

pool of blood on the floor toward the end of the entranceway, and

blood spatter marks on the wall next to the pool of blood. Petitioner

was apprehended and his truck was seized. The sledgehammer was

found behind the seat. Petitioner’s clothing and shoes were also

placed into evidence and sent for DNA testing.

Video surveillance footage of the apartment complex was obtained

and depicted Petitioner's truck, Petitioner carrying an object with a

long handle, and Petitioner wearing clothing matching what was

recovered from his person. The footage showed Petitioner walking

on the sidewalk and going up the stairs which lead to the side door

near the victim's apartment. Based on the video, Petitioner was in

the building for 90 seconds; he was seen returning to his truck and

placing something in his truck bed.

Petitioner testified on his own behalf. He detailed his romantic

relationship with the victim and denied her characterization of their

break-up, averring that she lied about his request for daily telephone

calls. Trial Tr. dated July 18, 2012, at 206-207. He characterized

their relationship as “friends with benefits.” Id. at 237. Petitioner

averred that he had never laid a hand on the victim. Id. at 243.

[Petitioner testified that] on Saturday, January 28th, he was at the

victim's apartment drinking vodka with her and Sprowls until one or

two in the morning. A verbal argument took place and the victim

asked Petitioner and Sprowls to leave. Id. at 209-13. Petitioner and

Sprowls left but continued drinking together; he testified that at this

point he had been awake for 30 to 36 hours. Petitioner explained

that phone calls with the victim and Louie ensued and they all began

to argue. Petitioner alleged that Louie threatened to damage his

truck by placing ball bearings in his gas tank. Id. at 218. Petitioner

noted the problems he had with Louie in the past. Id. at 214-17.

Petitioner testified that his anger toward Louie motivated him to

return to the victim’s apartment in an effort to confront Louie and

“smack him around a little bit.” Id. at 221.

Petitioner went to the victim’s apartment before noon on the 29th

and took his sledgehammer with him in case Louie refused to come

out of the apartment. Petitioner testified he only intended to use the

sledgehammer to knock the door down, not as a weapon. Petitioner

stated that he began to hit the door with the sledgehammer and

yelling, “where the H is Louie at ... where you at, b-i-t-c-h, where

you at, where you at Louis ...” Id. at 223. When the door finally

broke open, Petitioner recalled seeing the victim approximately

three to four feet in front of him. He testified that he used the

sledgehammer to “push her out of the way” with a shoving motion;

Petitioner denied hitting her with the sledgehammer. Id. at 224. He

claimed the victim was about three or four feet away from the door.

Petitioner testified that he did not realize the victim was hurt. Id. at

228. After deciding Louie was not there, Petitioner left. Petitioner

testified that when he saw Whiteman in the hallway he sarcastically

told her, “I killed the bitch dead” in reference to Louie. Id. at 228-

29.

On cross-examination, Petitioner stated that he did not know if

Louie was still in the apartment when he began striking the door.

When asked “did the sledgehammer make any contact with her?”

Petitioner responded, “evidently it did, but I didn't realize it did.”

Id. at 234. After looking at one of the Commonwealth’s exhibits,

Petitioner agreed that the bloodstain in the entranceway is farther

than three to four feet, the distance he claimed the victim was

standing when he entered the apartment. Id. at 231-37. Petitioner

described the incident as an “accident.” Id. at 237-240.

The Commonwealth then called the victim in rebuttal. She testified

that Petitioner’s statement that he never laid a hand on her was not

true. She recalled that Petitioner had punched her in the face about

a year earlier. She also recalled two separate occasions in 2011

when Petitioner poured beer over her head, once in the company of

Sprowls. Id. at 278-81.)

PCRA Trial Ct. Op., ECF No. 18-1 at 290-93 (citation format and reference to the “Petitioner”

amended for consistency, internal footnote omitted). See also Com. v. Helmick, 1600 WDA 2012,

2013 WL 11250751, at *1-4 (Pa. Super. Ct. Nov. 12, 2013).

Following his conviction, Petitioner was appointed new counsel, and he timely filed a

direct appeal to the Superior Court on October 11, 2012. ECF No. 18-1 at 293; See also Helmick,

2013 WL 11250751, at *4. Petitioner asserted three grounds for relief on direct appeal.

ECF No. 19-1 at 3. His conviction and sentence were affirmed by the Superior Court on

November 12, 2013. Helmick, 2013 WL 11250751, at *1. Petitioner timely filed a Petition for

Allowance of Appeal with the Pennsylvania Supreme Court on December 10, 2013, in which he

asserted a single ground for relief.. ECF No. 19-1 at 64 and 67. Allocatur was denied on June 2,

2014. See Docket, Com. v. Helmick, 577 WAL 2013 (available at

https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=577%20WAL%202013&d

□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ (last visited Feb. 1, 2023)). Petitioner did not file a

3 The underlying state court record submitted by Respondents in this matter was disorganized,

difficult to follow, and often did not match with the index that Respondents are required to provide

pursuant to LCVR 2254.E.1.d. This unnecessarily increased the amount of time and judicial

resources necessary to review and adjudicate Petitioner’s claims. Respondents are cautioned that

Judges are not like pigs, hunting for truffles buried in’ the record[,]” and that they should avoid

a similar lack of care in future cases. Albrechtsen v. Bd. of Regents of Univ. of Wisconsin Sys.,

309 F.3d 433, 436 (7th Cir. 2002) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991)).

petition for writ of certiorari with the United States Supreme Court. ECF No. | at 4. Asa result,

his conviction and sentence became final 90 days after allocator was denied — or September 1,

2014.

On December 23, 2014, Petitioner filed a pro se petition under the Pennsylvania Post

Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546.4 ECF No. 19-1 at 132 and 259.

He raised fifteen claims for relief in the pro se PCRA petition. This filing was supported by an

appendix of exhibits, which was submitted on the same date. ECF No, 18-1 at 176 and 220. The

exhibits included a proposed witness list, affidavits, a police report, and the Superior Court’s

decision on direct appeal. Id. at 177.

Petitioner filed a supplement to his pro se PCRA petition on January 23, 2015, in which he

asserted two additional claims. ECF No. 19-1 at 263 and 270. Counsel was appointed, who

subsequently filed a no-merit letter and sought leave to withdraw on November 4, 2016. ECF No.

18-1 at 250. Petitioner filed a pro se response to the no-merit letter on November 21, 2016.

ECF No. 19-1 at 273 and 289.

On March 7, 2017, the PCRA Trial Court granted Petitioner’s counsel leave to withdraw,

and issued notice of its intent to dismiss the PCRA petition without a hearing. ECF No. 18-1 at

259. Petitioner responded thereto on April 12, 2017 , ECF No. 25-5 at 11 and 34. The PCRA

Trial Court denied post-conviction relief on April 25, 2017. ECF No. 18-1 at 312. After dismissal,

Petitioner filed motions for relief with the PCRA Trial Court on May 8 and 10, 2017.

ECF Nos. 30-2 and 30-3. There is no indication on the record before this Court or the state court

* Because Pennsylvania applies the so-called “prisoner mailbox rule” to pro se PCRA petitions,

see, e.g., Com. v. Little, 716 A.2d 1287, 1288-89 (Pa. Super. Ct. 1998), the effective date of filing

appears to be December 23, 2014 — the date on which the certificate of service states that that

petition was mailed. ECF No. 19-1 at 259.

dockets that these motions were resolved. Cf. ECF No. 30-5 at 5-6 (motion dated June 27, 2017

seeking remand from the Superior Court to the trial court to address these earlier motions). See

also ECF No. 30-6 at 3 (order dated June 30, 2017, denying remand).

On May 22, 2017, Petitioner filed a pro se notice of appeal with the Pennsylvania Superior

Court. ECF No. 30-4 at 4. This was followed by his supporting brief in which he raised eight

grounds for relief. ECF No. 30-7 at 10-11. The Superior Court denied relief on August 15, 2018.

ECF No. 18-1 at 282. Petitioner moved for reargument on August 28, 2018. ECF No. 30-8 at 2

and 10. This request was denied by the Superior Court on October 23, 2018. ECF No. 20 at 32.

also Docket, Com. vy. Helmick, 785 WDA 2017 (available at

https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=785%20WDA%202017&d

nh=NSWa3zTY YuRIrEItF5W2%3D%3D (last visited Feb. 1, 2023)).

Petitioner sought leave to appeal from the Pennsylvania Supreme Court on

November 16, 2018, which was denied on May 22, 2019. ECF No. 20 at 1 and 17; ECF No. 18-1

at 315. See also Docket, Com. v. Helmick, 452 WAL 2018 (available at

https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=452%20WAL%202018&d

nh=OPimFeTRzXxrtbmqbcCVPw%3D%3D (last visited Feb. 1, 2023)).

Pursuant to the prisoner mailbox rule, the instant federal habeas Petition is deemed filed

on June 7, 2019. ECF No. 1 at 15. See Burns v. Morton, 134 F.3d 109, 113 3d Cir. 1998) (“we

hold that a pro se prisoner’s habeas petition is deemed filed at the moment he delivers it to prison

officials for mailing to the district court.”’). Respondents answered the Petition on October 7, 2019.

ECF No. 12. Respondents were ordered to file an amended answer that complied with applicable

Local Rules on October 10, 2019. ECF No. 13. They submitted piecemeal exhibits by several

filings. See ECF Nos. 15, 17-21, and 34. Petitioner was granted an extension of time to file a

traverse. ECF Nos. 22-23. Petitioner timely submitted the Traverse, ECF No. 26, as well as

additional electronic copies of state court records. ECF Nos. 25 and 30.

The Petition is ripe for consideration.

I. CLAIMS

Petitioner is not entirely clear as to the specific grounds for federal habeas relief that he is

raising. As written, the asserted grounds for relief appear to be compound, and mix factual

allegations together with legal claims. The following is a verbatim recitation of the grounds as

they are presented by Petitioner, followed by this Court’s parsing of Petitioner’s filing into claims

for relief.

Ground 1: The instant case involves an abundance of alcohol consumption.

Prior to trial defense was forbidden from raising an issue of

“voluntary intoxication”, by order of Trial Court depriving the

appellant of a fair and just trial.

The prosecution -did use a statement that was made by appellant

upon leaving apartment, “I killed the bitch dead,” to insinuate his

intent to kill victim. Defense counsel could not properly defend to

this statement without introducing intoxication.

Also, the prosecution, in questioning appellant on the stand asked

why he did not see victim laying on the floor when exiting the

apartment. Then pushed the issue on closing argument, that no way

could he have not seen the victim. Trial Court erred by mechanically

applying the rules governing “involuntary intoxication” under; 18

Pa. C.S.A. § 308, when it allowed statement leaving apartment to be

introduced by prosecution to suggest intent, but than not allowing

the defense to use alcohol as a defense for logic in making it or the

main reason he could not see victim laying on the floor when exiting

apartment. Thus, barring him from properly defending himself to

their allegations.

Ineffectiveness existed by counsel waiting for day of trial and not

filing a suppression motion for exclusion of statement. Counsel not

prepared to present a proper argument. Also, by not objecting

thereby failing to preserve this issue for review.

ECF No. | at 7.

The Court interprets this ground as a single claim of ineffective assistance of counsel based

on the above allegations.

Ground 2: Court erred by not holding a voir dire hearing in which prosecution

brought up the fact of juror misconduct. An in chamber conference

took place after the prosecution brought the issue up outside the

presence of appellant, who was unaware matter was being

discussed.. Also, it was known that an officer of the court had

conversations with a member of the jury, during trial, yet nothing

was done to voir dire the juror. Defense counsel, stated; “that it may

benefit the defendant,” without ever objecting to or discussing

matter with appellant. Thus, displaying ineffectiveness. Appellant

avers this whole issue amounts to “structural error”.

Id.

The Court interprets this ground as two distinct claims for relief: (a) a claim that trial

counsel was ineffective for objecting to the prosecution’s motion to remove a juror without first

consulting with Petitioner, or moving to conduct voir dire of the juror based on her alleged

disinterest in the case; and (b) a claim of ineffective assistance of counsel based on failing to

conduct voir dire of the juror based on communications between the juror and court staff.

Ground 3: Ineffectiveness upon trial counsels failure to investigate and/or

consult with a forensic/medical expert, where expert would have

supported defense, but instead relied solely on appellants testimony.

During trial, appellant was denied cross-examination of witnesses

whom took photographs of scene and allegedly collected DNA from

weapon involved. They were not introduced. Appellant requested

that counsel ask for a continuance and/or recess to request for the

introduction of said witnesses. Counsel refused. Counsel,

furthermore, failed to object to the absence of lab tech.,

analyst/sorologist, whom actually recovered alleged blood DNA

from weapon, thus denying his right to confrontation. Said analyst

was never identified in discovery or at trial creating a break in chain

of evidence.

Id. at 7-8.

The Court interprets this ground as an attempt to assert claims for: (a) ineffective assistance

of counsel with respect to not obtaining or presenting expert witnesses; as well as (b) a violation

of Petitioner’s rights under the Confrontation Clause of the Sixth Amendment to the United States

Constitution; and (c) ineffective assistance of counsel for failing to object to the same.

Ground 4: Overall the appellant claims he was denied effective counsel, and

had: brought forth all allegations of error within PCRA, yet, was

denied an evidentiary hearing even on constitutional claims. PCRA

court should have had an evidentiary hearing on the merits,

affording a record of errors to be established.

The appellant asserts, further, that he was denied available witnesses

that could have rebutted over inflated seriousness of the injuries

sustained by the victim presented by the Commonwealth. Had

evidence been presented it would of added reasonable doubt to

appellants intent to commit murder, because after the incident the

appellant phoned the victim. In fact, prior to trial, the victim, was

telling everyone that she felt it was an accident and that her injuries

are not as bad as they seem.

Id. at 8.

The Court interprets this ground as seeking relief based on: (a) the PCRA Trial Court’s

failure to grant a hearing; and (b) alleged ineffective assistance of trial counsel for failing to present

witnesses to impeach testimony regarding the seriousness of the victim’s injuries.

Ground 5: Further issues of ineffectiveness include; A witness (Trisha Church)

gave testimony to the fact that she over heard through a door, the

comment of; “I killed that bitch dead.” Yet, said testimony was not

included in discovery or within any initial police reports, counsel

did not contest and/or object to this testimony.

Id.

This ground also appears to be a single claim for relief.

Ground 6: Counsel failed to object in requesting an offer of proof in seeking a

ruling on admissibility of alleged pre-judicial bad acts evidence

prior to victims rebuttable testimony which were remote never

criminally charged and bore no relationship to offenses that were

brought forth before the court. Then denying the appellants right to

testify on his own behalf or call available witnesses in his defense

that were specifically requested by defendant to sire-rebuttal

testimony depriving him of a fair trial.

Ineffectiveness in failing to object to several falsely mis-represented

facts adduced at trial, on prosecutors closing arguments. Ineffective.

failing to object to trial courts giving of a supplemental transfered

intent instruction to the jury, that unlawfully broadened the theory

of culpability as charged in information and presented at trial by the

Commonwealth. Then by failing to object to Mr. Helmicks absence

during the reading of instruction of transfered intent.

Id.

The Court interprets this ground to seek relief based on ineffective assistance of counsel

for trial counsel’s: (a) failure to object to the impeachment testimony of the victim; (b) failure to

present surrebuttal witness testimony to challenge the impeachment testimony of the victim; (c)

failure to object to statements made by the prosecution during closing arguments; and (d) failure

to object to the trial court providing a transferred intent instruction to the jury and objecting to

Petitioner’s absence while reading that instruction to the jury.

Ground 7: Ineffective by failing to preserve any any issues for appeal, or ask

for reconsideration of sentence imposed based on the circumstances

of the case.

Ineffective during post-sentence motion phase of this case on direct

appeal by direct appeal counsel for failing to consult with defendant

post-sentence and prior to formulating motions. And also, by failing

to properly preserve issues for appellate review related to

discretionary aspects of sentence.

Herein, appellant sought relief through PCRA, in which lower court

denied without an evidentiary hearing and/or without addressing all

issues thus denying him proper due process in collateral

proceedings.

Id. at 9.

Ground 7 is analyzed as a single, stand-alone claim for relief.

Ground 8: Before appellant was appointed PCRA counsel, he moved pro-se in

which he submitted a supplemented PCRA. The court failed to

recognize the issues within his supplemental filing. At the bare

minimum the lower court should have accepted it as amended

PCRA.

Issues being; 1 trial court erred as a matter of law when it gave an

unwarranted and unnecessary jury instruction on voluntary

intoxication as a defense which neither party requested as voluntary

intoxication defense was not available nor pursued by the defendant.

It only served to confuse the jury.

2 Ineffective counsel for failing to object to voluntary intoxication

charge to jury thereby failing to preserve the issue for litigation in

post-sentence motions and on appeal.

Id.

The Court interprets this ground to attack: (a) the trial court’s voluntary intoxication

instruction; and (b) trial counsel’s alleged ineffective assistance by failing to object to the same.

To the extent that Petitioner seeks relief for the PCRA Trial Court’s failure to consider the issues

raised in his supplemental PCRA petition, such an argument is duplicative of Ground 4(a), and

will be addressed buy this Court with respect to the same. .

Ill. PROCEDURAL ISSUES

Before the Court can address the merits of Petitioner’s federal habeas claims, it will address

whether the Petition fulfills the applicable procedural requirements, as set forth in the

Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”).

A. The AEDPA Statute of Limitations

The first consideration in reviewing a federal habeas petition is whether a petition was

timely filed within the applicable statute of limitations. In 1996, Congress enacted the AEDPA,

which generally established a strict one-year statute of limitations for the filing habeas petitions

pursuant to 28 U.S.C. § 2254. The applicable portion of the statute is as follows:

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

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

judgment of a State court. The limitation period shall run from the

latest of —

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

conclusion of direct review or the expiration of the time for

seeking such review;

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

created by State action in violation of the Constitution or laws

of the United States is removed, if the applicant was prevented

from filing by such State action;

initially recognized by the Supreme Court, if the right has been

newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of

due diligence.

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

conviction or other collateral review with respect to the pertinent

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

of limitation under this subsection.

28 U.S.C. § 2244(d).

The United States Court of Appeals for the Third Circuit has held that the statute of

limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner,

379 F.3d 113, 122 (3d Cir. 2004), cert. denied sub nom. Fielder vy. Lavan, 543 U.S. 1067 (2005).

Thus, in analyzing whether a petition for writ habeas corpus has been timely filed within the one-

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

determine the “trigger” date for the individual claims raised in the petition. Typically, this is the

date that the petitioner’s direct review concluded and the judgment became “final” for purposes of

triggering the one-year period under Section 2244(d)(1)(A). Second, the court must determine

whether any “properly filed” applications for post-conviction or collateral relief were pending

during the limitations period that would toll the statute pursuant to Section 2244(d)(2). Third, the

court must determine whether any of the other statutory exceptions or equitable tolling should be

applied on the facts presented. See, e.g., Munchinski v. Wilson, 807 F. Supp. 2d 242, 263 (W.D.

Pa. 2011), aff'd, 694 F.3d 308 (3d Cir. 2012) (citing Nara v. Frank, No 99-5, 2004 WL 825858, at

*3 (W.D. Pa., Mar. 10, 2004)).

In the instant case, and as stated above, Petitioner’s conviction became final for the

purposes of the AEDPA on September 1, 2014 — 90 days after the Pennsylvania Supreme Court

denied allocator from the Superior Court’s decision affirming his conviction, and the expiration

of the period for Petitioner to seek a writ of certiorari from the Supreme Court of the United States.

This is the trigger date for each of Petitioner’s grounds for relief, except for Ground 4(a).

The clock on the AEDPA’s one-year statute of limitations began running on Grounds 1-3,

4(b), and 5-8 on September 1, 2014, and continued to December 23, 2014 — a period of 113 days

— when Petitioner’s pro se PCRA petition was constructively filed. ECF No. 19-1 at 259. The

clock did not begin running again until May 22, 2019, when the Pennsylvania Supreme Court

denied allocatur with respect to the PCRA petition. See Docket, Com. v. Helmick, 452 WAL

2018. The clock ran for another 16 days, until June 7, 2019, when Petitioner signed the instant

federal habeas Petition, and presumably placed it in the prison mail system. ECF No. 1 at 15.

The total time that the clock was running under Section 2244(d)(1) and (2) on Grounds 1-3,

4(b), and 5-8 is the sum of 113 days and 16 days — or 129 days. This is less than one year.

Accordingly, these grounds for relief are timely filed based on the one-year period of limitation

set forth in Section 2244(d)(1).

Unlike the other asserted grounds, Ground 4(a) arises from alleged errors in Petitioner’s

PCRA proceedings — specifically, that the PCRA Trial Court did not address claims raised in

Petitioner’s Supplemental PCRA Petition. ECF No. 1 at 8; ECF No. 19-1 at 263. The earliest

possible trigger date for Ground 4 is April 25, 2017 — the date on which the PCRA Trial Court

denied the PCRA petition without a hearing. ECF No. 18-1 at 312. But, because there was a

properly-filed PCRA proceeding pending at the time, the AEDPA’s limitations clock did not begin

until the Pennsylvania Supreme Court denied allocator on May 22, 2019. The clock on

Ground 4(a) ran 16 days, until the constructive filing of the instant federal habeas proceedings.

Accordingly, like the other grounds raised by Petitioner, Ground 4(a) also is timely.

B. Exhaustion and Procedural Default

The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state

prisoner to exhaust available state court remedies before seeking federal habeas relief. To comply

with the exhaustion requirement, a state prisoner first must have fairly presented his constitutional

and federal law issues to the state courts through direct appeal, collateral review, state habeas

proceedings, mandamus proceedings, or other available procedures for judicial review. See, ¢.g.,

Castille v. Peoples, 489 U.S. 346, 351 (1989); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996)

(abrogated on other grounds by Beard v. Kindler, 558 U.S. 53, 60-61 (2009)); Burkett v. Love, 89

F.3d 135, 137 (3d Cir. 1996).

Moreover, a petitioner must present every claim raised in a federal habeas petition to the

state trial court, intermediate appellate court, and highest available court before exhaustion will be

considered satisfied. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Lambert v. Blackwell,

387 F.3d 210, 234 (d Cir. 2004). In Pennsylvania, petitioners afford the state courts that

opportunity by fairly presenting their claims to the Superior Court, either on direct review or on

appeal of a petition for relief under the PCRA. Lambert, 387 F.3d at 232-34; see also Rodland v.

Sup’t of SCI Houtzdale, 837 F. App’x 915, 919 Gd Cir. 2020).

A petitioner shall not be deemed to have exhausted state remedies if he has the right to

raise his claims by any available state procedure. 28 U.S.C. § 2254(c). A petitioner bears the

burden of establishing that the exhaustion requirement has been met. Ross v. Petsock, 868 F.2d

639, 643 (3d Cir. 1989); O’Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir. 1987). In the case at

issue, it is clear that Petitioner’s claims are exhausted at the state court level at the very least in the

sense that there is no state avenue for relief available to him due to the PCRA’s one-year statute

of limitations. See 42 Pa. C.S.A. § 9545(b).

However, beyond the question of exhaustion, a federal court may be precluded from

reviewing habeas claims under the “procedural default doctrine.” Gray v. Netherland, 518 U.S.

152, 162 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor, 96 F.3d at 678;

Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). This doctrine is applicable where, inter alia,

a petitioner’s claims are “deemed exhausted because of a state procedural bar[.]” Lines v. Larkin,

208 F.3d 153, 160 (3d Cir. 2000). Like the exhaustion requirement, the procedural default doctrine

was developed to promote our dual judicial system and, in turn, it is based upon the “independent

and adequate state law grounds” doctrine, which dictates that federal courts will not review a state

court decision involving a question of federal law if the state court decision is based on state law

that is “independent” of the federal question and “adequate” to support the judgment. Coleman,

501 U.S. at 750.

The PCRA’s one-year statute of limitations has been held to be an “independent and

adequate” state law ground for denying habeas relief. Whitney v. Horn, 280 F.3d 240, 251 3d

Cir. 2002).

Respondents generally assert that “several of the claims raised [in the instant Petition] are

not subject to merits review due to exhaustion and procedural default.” ECF No. 12 at 14

(emphasis in original). This statement is not particularly useful to the resolution of this issue, as

Respondents’ Answer as a whole lacks specificity. Thus, it is difficult to determine to which of

the present grounds for relief that Respondents refer.

A review of the state court record indicates that Petitioner raised the following grounds at

the Superior Court on direct review:

1. Whether the Court erred / abused its discretion in not allowing the

defense to call witnesses to rebut the testimony of [the victim] Lori

Phillips during cross-examination that the reason she told others the

incident in question was an accident was because she felt alcohol

had played a role[;]

2. Whether the Court erred / abused its discretion in allowing the

prosecution to call [the victim] Lori Phillips as a rebuttal witness to

testify to specific instances in the past where [appellant] was

physically violent towards her[;| and

3. Whether [Petitioner’s] sentence is reasonable in light of the

circumstances.

ECF No. 19-1 at 28. None of these grounds was presented as a constitutional claim. Additionally,

the third issue above was explicitly found to have been waived because it was not timely raised in

a post-sentence motion. Id. at 90-91. Further, none of these issues appears to correspond with the

grounds asserted in the present Petition.

In his pro se brief to the Superior Court regarding his PCRA petition, Petitioner presented

the following questions:

1. Was trial counsel ineffective for failing to secure the services of a

medical/forensic expert to review the victim’s injuries and blood

spatter evidence and call an expert at trial after the trial court had

approved the release of funds for that purpose?

ECF No. 30-7 at 10. This corresponds to Ground 3(a) of the instant habeas Petition. ECF No. 1

at 7-8.

2. Was trial counsel ineffective for failing to seek to suppress and/or

exclude or otherwise object to the Commonwealth’s use of an

unreliable statement made by [Petitioner] while he was in a highly

intoxicated state that was exploited by the Commonwealth at trial?

ECF No. 30-7 at 10. This corresponds to Ground 1 of the Petition. ECF No. | at 7.

3. Did trial counsel perform ineffectively by failing to call other fact

witnesses to the stand previously identified by [Petitioner] capable

of refuting the lay witness testimony offered by the Commonwealth

with regards to the seriousness of [victim] Miss Phillips’ injuries

after the accident that were exaggerated at trial to negate serious

bodily injury?

ECF No. 30-7 at 10. This corresponds to Ground 4(b) of the Petition. ECF No. 1 at 8.

4, Was trial counsel ineffective for objecting to the Commonwealth’s

request to remove Juror #2 for cause without first consulting with

[Petitioner] and insisting upon voir dire of the Juror in a separate

hearing where the Juror was inattentive throughout the entire trial

and ignoring evidence being presented?

ECF No. 30-7 at 10. This corresponds with Ground 2(a) of the Petition. ECF No. 1 at 7.

5. Did trial counsel perform ineffectively by failing to object to the

admission of prior bad acts testimony from [victim] Miss Phillips

against [Petitioner] absent a sufficient offer of proof where said acts

were never criminally charged?

ECF No. 30-7 at 10. This corresponds to Ground 6(a) of the Petition. ECF No. 1 at 8.

6. Was trial counsel ineffective for failing to recall [Petitioner],

Tammy Sprowls and James Hoban to the stand in surrebuttal to

refute [victim] Miss Phillips’ damaging prior bad acts testimony

denying [Petitioner] his right to testify in his own defense and a fair

trial?

ECF No. 30-7 at 11. This corresponds to Ground 6(b) of the Petition. ECF No. 1 at 8.

7. Was trial counsel ineffective for failing to object to the trial court’s

giving of an unwarranted jury charge on voluntary intoxication

where a voluntary intoxication defense was not presented at trial

[Petitioner] was prevented by the court from using intoxication to

explain the making of an unreliable statement?

ECF No. 30-7 at 11.° This corresponds to Ground 8(b) of the Petition. ECF No. 1 at 9.

8. Is the order of April 25, 2017 denying PCRA relief without a hearing

a final order where not all issues were addressed by the PCRA court?

ECF No. 30-7 at 11. This corresponds to Ground 4(a) of the Petition. ECF No. 1 at 8.

Based on a review of the state court records in this case, the Court concludes that

Grounds 2(b), 3(b), 3(c), 5, 6(c), 6(d), 7, and 8(a) were not exhausted, and are procedurally

defaulted.® See also Stringer v. Folino, No. 13-221, 2016 WL 836347, at *13-14 and n.16 (W.D.

Pa. Feb. 1, 2016), report and recommendation adopted, 2016 WL 826016 (W.D. Pa. Mar. 3, 2016)

(waiver due to petitioner’s failure to recite claims in a Statement of Questions section in his state

court appeal brief was independent and adequate ground for procedural default).

The remaining grounds asserted grounds for habeas relief — Grounds 1, 2(a), 3(a), 4(a),

4(b), 6(a), 6(b), and 8(b) — will be addressed on the merits. These claims were presented to and

> The PCRA Superior Court found that this issue had been waived because it was not properly

presented to the PCRA Trial Court as an ineffective assistance of counsel claim. ECF No. 18-1 at

284-85. However, this is at odds with Petitioner’s supplemental PCRA petition, which appears to

raise this very issue with the PCRA Trial Court. ECF No. 19-1 at 266-67. Accordingly, out of an

abundance of caution, this Court will address the merits of Ground 8(b).

6 While it is not apparent whether Petitioner intends to do so, to the extent that he invokes Ground

1 to attack the trial court’s refusal to allow him to present evidence of his voluntary intoxication

during the commission of the crimes, the same is unexhausted and procedurally defaulted. See

ECF No. 1 at 8. See also ECF No. 26 at 12-14.

addressed by the Superior Court of Pennsylvania — save for Ground 8(b), the merits of which will

be addressed out of an abundance of caution. Cf. 28 U.S.C. § 2254(b)(2).

The United States Supreme Court has held that where a petitioner has to follow state

procedure within the required time period, the “federal habeas review of the claims is barred unless

the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Wainwright v. Sykes,

433 U.S. 72, 86-87 (1977) (failure to follow state’s procedural rules results in procedural default,

which bars federal review of petitioner’s claims unless he can show cause and prejudice); Hull v.

Freeman, 991 F.2d 86, 90-91 (3d Cir. 1993) (same). The United States Supreme Court in Coleman

further stated that it recognized “the important interest in finality served by state procedural rules

and the significant harm to the States that results from the failure of federal courts to respect them.”

501 USS. at 750.

The Supreme Court has defined “cause” as “some objective factor external to the defense.”

Murray v. Carrier, 477 U.S. 478, 488 (1986). “[A] showing that the factual or legal basis for a

claim was not reasonably available to counsel . . . or . . . some interference by officials” are two

examples, but not an exhaustive list. Id. Here, Petitioner has failed to show cause to excuse default

of any ground for relief not presented to the Superior Court either on direct appeal or in his PCRA

appeal.

In order to show a fundamental miscarriage of justice, the Supreme Court requires a

petitioner to demonstrate that “a constitutional violation has probably resulted in the conviction of

one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 321 (quoting Murray, 477 U.S. at

496). Under this standard, a petitioner must “support his allegations of constitutional error with

new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence — that was not presented at trial.” Schlup, 513 U.S at 324.

Once such evidence is presented, a petitioner must show that “it is more likely than not that no

reasonable juror would have convicted him in the light of the new evidence.” Id. at 327.

In this case, Petitioner has adduced no new evidence of his actual innocence, nor do his

arguments lead to the conclusion that “it is more likely than not that no reasonable juror” would

have convicted him. Indeed, given his admission both at trial and in his briefing that he struck the

victim in the head with a sledgehammer after using that sledgehammer to force his way into her

home without a right to do so, ECF Nos. 26 at 10 and Trial Tr. dated July 18, 2012, ECF No. 34-

3 at 24, 26, 44, and 56-57, it is doubtful that Petitioner could meet this high standard.

Accordingly, this Court will deny Grounds 2(b), 3(b), 3(c), 5, 6(c), 6(d), 7, and 8(a) as

procedurally defaulted.

IV. APPLICATION OF MERITS STANDARD OF REVIEW

Federal courts are permitted to grant habeas relief from the judgment of a state court only

when a petitioner “is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). Where the state court has reviewed a federal issue presented to them

and disposed of the issue on the merits, and that issue also is raised in a federal habeas petition,

the AEDPA provides the applicable deferential standards by which the federal habeas court is to

review the state court’s disposition of that issue. See 28 U.S.C. § 2254(d) and (e).

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court expounded

upon the standard found in 28 U.S.C. § 2254(d). The Supreme Court explained that Congress

intended that habeas relief for errors of law may only be granted in two situations: (1) where the

state court decision was “contrary to . . . clearly established Federal law as determined by the

Supreme Court of the United States” or (2) where that state court decision “involved an

unreasonable application of [] clearly established Federal law, as determined by the Supreme Court

of the United States.” Id. at 404-05 (emphasis deleted). A state court decision can be contrary to

clearly established federal law in one of two ways. First, the state courts could apply a wrong rule

of law that is different from the rule of law required by the United States Supreme Court. Second,

the state courts can apply the correct rule of law but reach an outcome that is different from a case

decided by the United States Supreme Court where the facts are indistinguishable between the

state court case and the United States Supreme Court case. Lambert, 387 F.3d at 234 (quoting

Williams, 529 U.S. at 405-06).

In addition, the United States Court of Appeals for the Third Circuit has explained that

“Circuit precedent cannot create or refine clearly established Supreme Court law, and lower federal

courts ‘may not canvass circuit decisions to determine whether a particular rule of law is so widely

accepted among the Federal Circuits that it would, if presented to [the Supreme] Court, be accepted

as correct.”” Dennis vy. Sec., Pa. Dep’t of Corrs., 834 F.3d 263, 368 (3d Cir. 2016) (quoting

Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)). As the United States Supreme Court

has further explained: “[s]ection 2254(d)(1) provides a remedy for instances in which a state court

unreasonably applies this Court’s precedent; it does not require state courts to extend that

precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 572

U.S. 415, 428 (2014).

The AEDPA also permits federal habeas relief where the state court’s adjudication of the

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.” 28 U.S.C. § 2254(d)(2). Specific factual

determinations by the state court are that are subsidiary to the ultimate decision to grant post

conviction relief are subject to the presumption of correctness, and must be overcome by a

petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Lambert, 387 F.3d

at 235-236. The Third Circuit has declined to adopt a “rigid approach to habeas review of state

fact-finding.” Id. at 236 n.19. Ifa state trial court and appellate court make conflicting factual

findings, the habeas court must defer to the findings of the higher court — regardless of the propriety

of those findings under state law — unless they are rebutted by clear and convincing evidence. See

Rolan v. Vaughn, 445 F.3d 671, 680 (3d Cir. 2006).

Finally, it is a habeas petitioner’s burden to show that the state court’s decision was

contrary to or an unreasonable application of United States Supreme Court precedent and/or an

unreasonable determination of the facts. Ross v. Atty. Gen. of State of Pennsylvania, No. 07-97,

2008 WL 203361, at *5 (W.D. Pa. Jan. 23, 2008).

A. Ground 4(a) Is Not Cognizable.

At Ground 4, Petitioner asserts that:

Overall the appellant claims he was denied effective counsel, and

had: brought forth all allegations of error within PCRA, yet, was

denied an evidentiary hearing even on constitutional claims. PCRA

court should have had an evidentiary hearing on the merits,

affording a record of errors to be established.

The appellant asserts, further, that he was denied available witnesses

that could have rebutted over inflated seriousness of the injuries

sustained by the victim presented by the Commonwealth. Had

evidence been presented it would of added reasonable doubt to

appellants intent to commit murder, because after the incident the

appellant phoned the victim. In fact, prior to trial, the victim, was

telling everyone that she felt it was an accident and that her injuries

are not as bad as they seem.

ECF No. 1 at 8. Ground 4(a) relates to Petitioner’s exhausted assertion that the “PCRA court

should have had an evidentiary hearing on the merits, affording a record of errors to be

established.”

But this Court’s ability to grant habeas relief is limited to violations of the “Constitutional

or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Claims of error by the PCRA Trial

Court or PCRA Superior Court simply are not cognizable in a federal habeas action. See, ¢.g.,

Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“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.”)

See also Lambert, 387 F.3d at 247 (“habeas proceedings are not the appropriate forum for Lambert

to pursue claims of error at the PCRA proceeding.”)

Accordingly, the requested habeas relief based on Ground 4(a) is denied.

B. Ineffective Assistance of Counsel Claims

Remaining Grounds 1, 2(a), 3(a), 4(b), 6(a), 6(b), and 8(b) are based on claims of

ineffective assistance of counsel. Except as to Ground 8(b), the AEDPA’s deferential standard of

review applies.

The Sixth Amendment right to counsel exists “in order to protect the fundamental right to

a fair trial.” Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington,

466 U.S. 668, 684 (1984)). The United States Supreme Court has formulated a two-part test for

determining whether counsel rendered constitutionally ineffective assistance: (1) counsel’s

performance must have been unreasonable; and (2) counsel’s unreasonable performance must have

actually prejudiced the defense. Strickland, 466 U.S. at 687. To determine whether counsel

performed below the level expected from a reasonably competent attorney, it is necessary to judge

counsel’s challenged conduct on the facts of the particular case, viewed at the time of counsel’s

conduct. Id. at 690.

The three-part test applied by the state courts of Pennsylvania for ineffectiveness of counsel

has been found by the Third Circuit not to be contrary to Strickland. Werts v. Vaughn, 228 F.3d

178, 204 (3d Cir. 2000). Thus, thus, the Pennsylvania state court’s application of that test in

Petitioner’s PCRA proceedings is not contrary to Strickland.

The first prong of the Strickland test requires a petitioner to establish that his or her

attorney’s representation fell below an objective standard of reasonableness by committing errors

so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment.

Strickland, 466 U.S. at 688. A court must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, a petitioner must

overcome the presumption that, under the totality of the circumstances, the challenged action

“might be considered sound trial strategy.” Id. at 689. The question is not whether the defense

was free from errors of judgment, but whether counsel exercised the customary skill and

knowledge that normally prevailed at the time and place. Id. Instead, a petitioner is required to

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

guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104

(2001) (quoting Strickland, 466 U.S. at 687).

The second prong requires a petitioner to demonstrate that errors by counsel deprived him

of a fair trial and the result was unfair or unreliable. Strickland, 466 U.S. at 689. To prove

prejudice, a petitioner must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id. at 694. A

“reasonable probability” is one that is sufficient to undermine confidence in the outcome. Id.

1. Ground 1

At Ground 1, Petitioner alleges that his trial counsel was ineffective for failing to suppress

Petitioner’s statement of “I killed the bitch dead,” as he we leaving the scene of the crime.

The instant case involves an abundance of alcohol consumption.