BUTLER v. ZAKEN

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTONIO BUTLER, )

) Civil Action No. 20 – 1172

Petitioner, )

)

v. ) Magistrate Judge Lisa Pupo Lenihan

)

MICHAEL ZAKEN, )

)

Respondent. )

MEMORANDUM OPINION

Currently pending before the Court1 is an Amended Petition for Writ of Habeas Corpus

(“Petition”) filed by Petitioner Antonio Butler (“Petitioner”) pursuant to 28 U.S.C. § 2254. (ECF

No. 12.) For the reasons set forth below, the Petition will be denied and a certificate of

appealability will also be denied.

A. Factual Background and Procedural History2

In this habeas case, Petitioner challenges his judgment of sentence out of Allegheny

County at criminal docket number CP-02-CR-0005536-2010.3

The relevant facts presented at trial, as related by the trial court, are as follows:

Orlando Anderson testified that on December 29, 2009, he was looking for

a ride to visit his friend, Erica Daye, to help fix her daughter’s bike. He bumped

into the [Petitioner] on Third Street in Pitcairn. He asked the [Petitioner] if he

could get a ride to Erica Daye’s residence on McGinnis Street. The [Petitioner]

told him he’d have to ask the victim in this case, Lamont Ford, who was known as

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have 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 No. 14-1) relevant parts of the state court record.

The documents will be cited to by their exhibit and ECF page number as follows: “Exh. __, ECF No. 14-1, p.___.”

3 Petitioner was charged with one count each of criminal homicide, carrying a firearm without a license and persons

not to possess a firearm. (ECF 2, ECF No. 14-1, pp.21-24.)

1

“Lolo”. When the victim showed up, Anderson asked for the ride. The victim

agreed to drive Anderson to Erica Daye’s residence. All three got into the

victim’s vehicle. The [Petitioner] sat in the front passenger seat and Anderson sat

in the rear passenger seat. Ford told Anderson and the [Petitioner] that he had to

stop at his aunt’s house before they stopped at Erica Daye’s residence. After the

[Petitioner] got back in the vehicle, they left for Erica Daye’s residence. As they

approached the residence, Anderson told Ford to drive on Brinton Road and turn

onto Kay Street. The three men engaged in normal conversation during the ride.

Ford and the [Petitioner] appeared “cool” with each other and there was no

tension in the vehicle. When the vehicle stopped on Kay Street, Anderson existed

the vehicle. As he just started walking away, he heard a gunshot. He turned

around and saw a number of muzzle flashes inside the vehicle. The [Petitioner]

was halfway inside the vehicle firing gunshots toward Ford. The vehicle then

drifted forward and hit another vehicle. Anderson was still close to the shooting

scene. The [Petitioner] turned toward him and fled the scene running down

Brinton Road toward Second Street. Anderson stayed at the scene screaming for

help and waited for help to arrive. He testified that the [Petitioner] was wearing a

red jacket, boots and black jeans at the time of the shooting.

Brandon Marto testified that on December 29, 2009, he was driving his

pick-up truck on Brinton Road in Pitcairn, Pennsylvania just as it was starting to

get dark. According to Marto, it was dusk. While he was driving he heard a

“pop” and thought he had blown a tire. He heard another “pop” and observed a

car parked on the side of Kay street. As he turned to look down Kay Street, he

observed a man standing outside the passenger’s side of the car shooting into it.

He then observed the flashes of five gunshots. He observed another man standing

outside the car on the driver’s side of the vehicle. He testified that the shooter

was approximately 5-9” – 5’10” and weighed approximately 160 pounds. At the

time of the shooting, he was wearing a red, long sleeved windbreaker, jeans and

boots and he had short hair. He testified that the gun was dark in color, probably

black. As he drove by the shooting scene, he was able to observe the shooter run

from the scene.

Reverend Deacon Byron Johnson testified that he lived near the scene of

the shooting on Brinton Road. He testified that he heard gunshots on the day of

the shooting and he looked out the window of his residence. Immediately after

the shooting he observed a black make walking toward his residence from what

appeared to be Kay Street. The male was wearing a red coat, a hoodie, jeans and

boots. He kept his hands in his pockets. He walked away from the scene on

Second Street. Deacon Johnson testified that after the [Petitioner] was arrested

and he saw a photograph of the [Petitioner] in the newspaper, he recognized the

[Petitioner] as the person he saw on the day of the shooting. He could not,

however, identify the [Petitioner] at trial, attributing his inability to do so on the

three year gap between the time he saw the [Petitioner] on the street and the time

he was asked to identify the [Petitioner] in the courtroom.

2

Brian Franklin testified that on January 28, 2010, he and the [Petitioner]

were cellmates in the Allegheny County Jail. On that date, the [Petitioner] asked

Franklin if police could get DNA from a Pepsi can. FN1. Franklin advised the

[Petitioner] that he believed DNA could be obtained from the can. The

[Petitioner] then asked him whether DNA or other evidence could be obtained

from a vehicle. Franklin asked the [Petitioner] why he was asking these

questions. The [Petitioner] replied by telling Franklin that he was involved in a

case. He told Franklin that he pulled the trigger in a homicide case. The

[Petitioner] explained that the [Petitioner] had a “beef” with the victim and he

wanted a fair fight with the victim. The victim did not want to fight. The

[Petitioner] explained that he asked for a ride from the victim to pay for his cell

phone bill. The [Petitioner] basically disclosed the same events of the night of the

shooting as described by Orlando Anderson. He told Franklin about the stop at

the victim’s aunt’s house. According to the [Petitioner], even though he never

saw the victim with a gun, he thought the victim went into the house to get a gun.

The [Petitioner] told Franklin that the vehicle came to a stop and he shot the

victim because he thought the victim was going to shoot him first. He stated that

Orlando Anderson was in the back seat of the vehicle at the time of the shooting.

He stated that he got rid of the gun. Days after the incident, the [Petitioner]

begged Franklin not to tell anybody what he had told Franklin.

FN1 Testimony at trial established that detectives had provided the

[Petitioner] with a can of Pepsi while he was in custody. After drinking

the Pepsi, the [Petitioner] discarded the can and police officers removed

the can from a [trash container].

(Exh. 23, ECF No. 14-1, pp.97-100.)

Based on the evidence, Petitioner was found guilty of first-degree murder and carrying a

firearm without a license.4 On September 12, 2012, immediately following the jury’s verdict,

Petitioner received a mandatory life without parole sentence for first-degree murder and a

consecutive three-and-a-half to seven-year sentence for carrying a firearm without a license.

(Exh. 14, ECF No. 14-1, pp.57-61.) After the trial court imposed sentence, Petitioner filed a

4 This was the third time Petitioner was tried on these charges. The first trial took place on April 25-26, 2011, and it

ended in a mistrial because the jury could not reach a verdict. The second trial took place on April 10-11, 2012, and

it ended in a mistrial as a result of suppressed evidence coming into the record. See ECF No. 14, pp.3-4. After the

first trial and before the second trial, the Commonwealth filed a partial nolle prosse requesting that the persons not

to possess a firearm charge be dismissed, which was granted on May 3, 2011. See ECF No. 14, p.4.

3

post-sentence motion claiming that the verdicts were against the weight of the evidence. (Exh.

15, ECF No. 14-1, pp.62-68.) Petitioner’s post-sentence motion was denied on September 18,

2012. (Exh. 16, ECF No. 14-1, p.69.) Petitioner appealed, and the Superior Court of

Pennsylvania affirmed his judgment of sentence on July 8, 2014. (Exh. 27, ECF No. 14-1,

pp.204-20.) Petitioner then filed a petition for allowance of appeal,5 which the Supreme Court of

Pennsylvania denied on March 16, 2016. (Exh. 38, ECF No. 14-1, p.506.)

Petitioner filed a pro se petition pursuant to Pennsylvania’s Post-Conviction Relief Act

(“PCRA”) on September 12, 2016.6 (Exh. 39, ECF No. 14-1, pp.507-719.) Counsel was

appointed for Petitioner who, on September 25, 2017, filed an amended PCRA petition on

Petitioner’s behalf. (Exh. 40, ECF No. 14-1, p.720; Exh. 41, ECF No. 14-1, pp.721-32.) The

PCRA court dismissed the petition on March 20, 2018. (Exh. 44, ECF No. 14-1, p.770.)

Petitioner appealed, and the Pennsylvania Superior Court affirmed the dismissal of PCRA relief

on May 13, 2019. (Exh. 53, ECF No. 14-1, pp.938-40.) Petitioner filed a petition for allowance

of appeal, which the Pennsylvania Supreme Court denied on November 5, 2019. (Exh. 57, ECF

No. 14-1, p.995.)

Petitioner initiated these federal habeas proceedings by filing his original Petition for

Writ of Habeas Corpus on July 17, 2020.7 (ECF No. 1.) He filed an Amended Petition on

5 Petitioner’s right to file a petition for allowance of appeal nunc pro tunc was reinstated after the PCRA court

granted him this relief on October 27, 2015. (Exh. 33, ECF No. 14-1, pp.442.)

6 Although the PCRA petition was not docketed until September 22, 2016, Petitioner signed and dated this petition

on September 12, 2016. See ECF No. 14-1, p.598. Therefore, this is the filing date according to the prisoner

mailbox rule. See Houston v. Lack, 487 U.S. 266 (1988); see also Commonwealth v. Castro, 766 A.2d 1283, 1287

(Pa. Super. 2001) (“the date of delivery of the PCRA petition by the defendant to the proper prion authority or to a

prison mailbox is considered the date of filing of the petition.”) (quoting Commonwealth v. Little, 716 A.2d 1287,

1288 (Pa. Super. 1998)).

7 This is the filing date according to the prisoner mailbox rule. See FN6, supra.

4

October 15, 2020. (ECF No. 12.) In the Petition, Petitioner raises the following claims: (1)

ineffective assistance of trial counsel for failing to request a Kloiber8 instruction; (2) ineffective

assistance of trial counsel for failing to request a corrupt and polluted source instruction; and (3)

prosecutorial misconduct in referring to Petitioner as a “cold-blooded killer” in his closing

arguments and ineffective assistance of trial counsel for failing to object to same. Respondents

filed an Answer to the Petition on October 28, 2020. (ECF No. 14.) The Petition is now ripe for

review.9

B. Federal Habeas Standard

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”), habeas relief is

only available for “a person in custody pursuant to the judgment of a State court only on the

ground that he is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a).

An application for a writ of habeas corpus shall not be granted with respect to any claim

that was adjudicated on the merits in State court proceedings unless the 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; or

8 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

9 Respondents argue that the Petition should be dismissed as time barred. However, upon review, it appears that

Respondents calculated the statute of limitations incorrectly because they used the incorrect filing dates for

Petitioner’s PCRA petition and his original habeas petition filed in this case. When calculating the statute of

limitations using the correct filing dates (i.e., those governed by the prisoner mailbox rule), the Petition was timely

filed.

5

(2) 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). For purposes of § 2254(d), a claim has been “adjudicated on the merits in

State court proceedings” when the state court made a decision that finally resolves the claim

based on its substance, not on a procedural, or other, ground. See, e.g., Harrington v. Richter,

562 U.S. 86, 98-100 (2011); Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).

The majority of federal habeas claims need only be analyzed under § 2254(d)(1), which

applies to questions of law and mixed questions of law and fact. In applying § 2254(d)(1), the

federal habeas 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). The phrase “clearly established,” as the term is used in § 2254(d)(1), “refers to the

holdings, as opposed to the dicta, of the [United States Supreme] Court’s decisions as of the time

of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 363, 412 (2000). Thus,

“clearly established Federal law” is restricted to “the governing legal principle or principles set

forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade,

538 U.S. 63, 71-72 (2003).

Once the “clearly established Federal law, as determined by the Supreme Court of the

United States” is ascertained, the federal habeas court must determine whether the state 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 “if the state court applies a rule that contradicts the governing law set forth in [Supreme

Court] cases,” or “if the state court confronts a set of facts that are materially indistinguishable

6

from a decision of [the Supreme Court] and nevertheless arrives at a result different from

[Supreme Court] precedent.” Id. at 405, 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. Id. at 406. Thus, the issue in most federal habeas

cases is whether the adjudication by the state court survives under § 2254(d)(1)’s “unreasonable

application” clause.

A state court decision is an “unreasonable application” of clearly established Federal law

“if the state court identifies the correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams,

529 U.S. at 413. To satisfy his burden under this provision of AEDPA’s standard of review, the

petitioner must do more than convince the federal habeas court that the state court’s decision was

incorrect. He must show that it “was objectively unreasonable.” Id. at 409. This means that the

petitioner must prove that the state court’s decision “was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Richter, 562 U.S. at 103.

As the Supreme Court has 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 (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.

Richter, 562 U.S. at 102.

7

If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court

decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de

novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent

Graterford SCI, 677 F. App’x 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S.

930, 953 (2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[,] [a] federal

court must then resolve the claim without the deference AEDPA otherwise requires.”). The

Court of Appeals for the Third Circuit has explained that,

[w]hile a determination that a state court’s analysis is contrary to or an

unreasonable application of clearly established federal law is necessary to grant

habeas relief, it is not alone sufficient. That is because, despite applying an

improper analysis, the state court still may have reached the correct result, and a

federal court can only grant the Great Writ if it is “firmly convinced that a federal

constitutional right has been violated,” Williams, 529 U.S. at 389, 120 S.Ct. 1495.

See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301

(2002) (“[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”). Thus, when a federal court

reviewing a habeas petition concludes that the state court analyzed the petitioner’s

claim in a manner that contravenes clearly established federal law, it then must

proceed to review the merits of the claim de novo to evaluate if a constitutional

violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182

L.Ed.2d 398 (2012).

Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote

omitted).

The standard of review set forth at § 2254(d)(2) 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). “[A] state court decision is based on an ‘unreasonable determination of the facts’ if the

state court’s factual findings are ‘objectively unreasonable in light of the evidence presented in

the state-court proceeding,’ which requires review of whether there was sufficient evidence to

8

support the state court’s factual findings.” Dennis v. Secretary, Pennsylvania Department of

Corrections, 834 F.3d 263, 281 (3d Cir. 2016) (quoting § 2254(d)(2) and citing Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003)). “‘[A] state-court factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in the first

instance.’” Titlow, 571 U.S. at 18 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)); see Rice

v. Collins, 546 U.S. 333, 342 (2006) (reversing court of appeals’ decision because “[t]he panel

majority’s attempt to use a set of debatable inferences to set aside the conclusion reached by the

state court does not satisfy AEDPA’s requirements for granting a writ of habeas corpus.”). Thus,

“if ‘[r]easonable minds reviewing the record might disagree’ about the finding in question, ‘on

habeas review that does not suffice to supersede’” the state court’s adjudication. Woods, 558

U.S. at 301 (quoting Collins, 546 U.S. at 341-42).

If the state court did not adjudicate a claim on the merits, the federal habeas court must

determine whether that was because the petitioner procedurally defaulted it. If the claim is not

defaulted, or if the petitioner has established grounds to excuse his default, the standard of

review at § 2254(d) does not apply and the habeas court reviews the claim de novo. See, e.g.,

Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). However, in all cases and regardless of

whether the standard of review at § 2254(d) applies, the state court’s factual determinations are

presumed to be correct under § 2254(e)(1) unless the 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).

C. Exhaustion and Procedural Default

9

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 corpus relief.

This “exhaustion” requirement 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 court[.]” O’Sullivan v. Boerckel, 562 U.S. 838, 845

(1999).

In order to “exhaust” a federal constitutional claim, a state prisoner must “fairly present”

it through the proper procedures in state court before he litigates the claim in a federal habeas

petition. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citing 28 U.S.C. § 2254(b)); see

also O’Sullivan, 526 U.S. at 848; Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). This

requires the state prisoner to have “invoke[d] one complete round of the State’s established

appellate review process[,]” in order to satisfy the exhaustion requirement. In Pennsylvania, this

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).

Additionally, in order to “fairly present” a claim in the state courts to satisfy the

exhaustion requirement, “[b]oth the legal theory and the facts on which a federal claim rests must

have been presented to the state courts.” Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.

1986) (citing Picard v. Connor, 404 U.S. 270, 277 (1971)). “This requires that the claim brought

in federal court be the substantial equivalent of that presented to the state court.” Id. The Third

10

Circuit has held that a state prisoner may “fairly present” a federal claim to state courts without

specifically referencing the federal Constitution or a federal statute in four ways:

(a) reliance on pertinent federal cases employing constitutional analysis, (b)

reliance on state cases employing constitutional analysis in like fact situations, (c)

assertion of the claim in terms so particular as to call to mind a specific right

protected by the Constitution, and (d) allegation of a pattern of facts that is well

within the mainstream of constitutional litigation.

Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 229 (3d Cir. 2017) (quoting

McCandless v. Vaughn, 172 F.3d 255, 261-62 (3d Cir. 1999)).

“When a claim is not exhausted because it has not been ‘fairly presented’ to the state

courts, but state procedural rules bar the applicant from seeking further relief in state courts, the

exhaustion requirement is satisfied because there is ‘an absence of available State corrective

process.’” McCandless, 172 F.3d at 260. However, in such cases applicants are considered to

have procedurally defaulted their claims. See Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir.

2012). The doctrine of procedural default, like the doctrine of exhaustion, is “grounded in

concerns of comity and federalism.” Coleman, 501 U.S. at 730. 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 (often referred to as the “adequate and independent state ground

doctrine”). See Rolan, 680 F.3d at 317 (“Procedural default occurs when a claim has not been

fairly presented to the state courts . . . and there is no additional state remedies available to

11

pursue . . . or, when an issue is properly asserted in the state system but not addressed on the

merits because of an independent and adequate state procedural rule . . . .).

Federal courts may not consider procedurally defaulted claims 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 claim[] will result in a fundamental

miscarriage of justice.” Coleman, 501 U.S. at 750. To show a fundamental miscarriage of

justice, a petitioner must demonstrate that he is actually innocent of the crime, McCleskey v.

Zant, 499 U.S. 467, 494 (1991), by presenting “evidence of innocence 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).

It is more common that a petitioner will allege cause and prejudice to overcome a

procedurally defaulted claim. To show cause, a petitioner must demonstrate that “some

objective factor external to the defense” prevented compliance with the state’s procedural

requirements. Id. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). A factor is

external to the defense if it “cannot fairly be attributed to” the prisoner. Id. The Supreme Court

has explained:

It has long been the rule that attorney error is an objective external factor

providing cause for excusing a procedural default only if that error amounted to a

deprivation of the constitutional right to counsel. See Edwards v. Carpenter, 529

U.S. 466, 451 (2000). An error amounting to constitutionally ineffective

assistance is “imputed to the State” and is therefore external to the prisoner.

Murray, supra, at 488. Attorney error that does not violate the Constitution,

however, is attributed to the prisoner under “well-settled principles of agency

law.” Coleman, supra, at 754. It follows, then, that in proceedings for which the

Constitution does not guarantee the assistance of counsel at all, attorney error

cannot provide cause to excuse a default.

Davila v. Davis, 582 U.S. 521, 528-29 (2017).

12

The general rule is that, because there is no federal constitutional right to counsel in a

PCRA proceeding, a petitioner cannot rely on PCRA counsel’s ineffectiveness to establish the

“cause” necessary to overcome the default of a federal habeas claim. Id. at 529 (citing Coleman,

501 U.S. at 755). 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,10 a petitioner may overcome the default of a claim of trial counsel’s

ineffectiveness. To do so, the petitioner must show: (1) the defaulted claim of trial counsel’s

ineffectiveness is “substantial” and (2) PCRA counsel was ineffective under 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 trial counsel was ineffective. See, e.g., Davila,

582 U.S. at 529-31. It does not apply to any other type of defaulted claim. Id.

If the Superior Court did not adjudicate a claim on the merits, the federal habeas court

must determine whether that was because the petitioner procedurally defaulted it. As previously

stated, if the claim is not defaulted, or if the 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. See, e.g., Appel, 250 F.3d at 210. At the same time, the court applies 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.

10 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)).

13

Finally, the “adequate and independent state ground doctrine applies on federal

habeas[,]” Harris v. Reed, 489 U.S. 255, 262 (1989) (citing Wainwright v. Sykes, 433 U.S. 72,

81, 87 (1977)), insofar as federal review is barred if claims are “defaulted . . . in state court

pursuant to an independent and adequate state procedural rule.” Coleman, 501 U.S. at 750. In

other words, “[t]he procedural default doctrine prohibits federal courts from reviewing a state

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

law that is independent of the federal question and adequate to support the judgment.” Nara, 488

F.3d at 199. The requirements of “independence” and “adequacy” are distinct. Johnson v.

Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004). State procedural grounds are not independent,

and will not bar federal habeas relief, if the state law ground rested primarily on federal law or is

so “interwoven with federal law” that it cannot be said to be independent of the merits of

petitioner’s federal claims. Coleman, 501 U.S. at 739-40. A state rule is “adequate” if it is

“firmly established and regularly followed.” Johnson v. Lee, 136 S. Ct. 1802, 1804 (2016)

(citation omitted). These requirements ensure that “federal review is not barred unless a habeas

petitioner had fair notice of the need to follow the state procedural rule,” and that “review is

foreclosed by what may honestly be called ‘rules’ . . . of general applicability[,] rather than by

whim or prejudice against a claim or claimant.” Bronshtein v. Horn, 404 F.3d 700, 707, 708 (3d

Cir. 2005).

D. The Strickland Standard

Most of Petitioner’s claims assert that trial counsel provided him with ineffective

assistance. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court recognized

that a defendant’s Sixth Amendment right to the assistance of counsel for his defense entails the

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right to be represented by an attorney who meets at least a minimal standard of competence.11

Id. 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.

11 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).

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The Supreme Court in Strickland noted that although it had discussed the performance

component of an ineffectiveness claim before 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 because 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[.]”).

E. Petitioner’s Claims

Petitioner raises the following claims: (1) ineffective assistance of trial counsel for failing

to request a Kloiber12 instruction; (2) ineffective assistance of trial counsel for failing to request

a corrupt and polluted source instruction; and (3) prosecutorial misconduct in referring to

Petitioner as a “cold-blooded killer” in his closing arguments and ineffective assistance of trial

counsel for failing to object to same. Contrary to Respondents’ position, Petitioner’s first two

12 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

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claims are exhausted since they were presented in their current format to both the PCRA court

and Superior Court on appeal.13 Petitioner’s third claim, however, is procedurally defaulted.

1. Failure to Request a Kloiber Instruction

Petitioner claims that his trial counsel rendered ineffective assistance of counsel because

he failed to request a Kloiber instruction concerning Orlando Anderson’s misidentification of

Petitioner prior to the trial. As stated above, Petitioner raised this claim in his PCRA petition

and on appeal to the Superior Court from the dismissal thereof.

In Kloiber, the Supreme Court of Pennsylvania held:

[W]here the witness is not in a position to clearly observe the assailant, or he is

not positive as to identity, or his positive statements as to identity are weakened

by qualification or by failure to identify defendant on one or more prior occasions

. . . the court should warn the jury that the testimony as to identity must be

received with caution.

106 A.2d at 826-27 (citations omitted). With respect to this claim, the PCRA court found as

follows:

In this case, a Kloiber instruction would not have been granted by this Court.

Orlando Anderson clearly viewed Petitioner prior to, during and after the shooting

and murder of the victim. Orlando Anderson never equivocated on the

identification of Petitioner and he did not have a problem identifying Petitioner in

the past. Orlando Anderson clearly identified Petitioner at trial as the person who

shot and killed the victim in this case. During his testimony at trial, Orlando

Anderson advised the jury that he intentionally failed to identify Petitioner prior

to trial during a photo array out of fear for his personal safety. In considering the

totality of Orlando Anderson’s testimony at trial, it is clear that his identification

of Petitioner was clear, unequivocal and accurate. This Court would not have

provided a Kloiber instruction at trial and trial counsel could not, therefore, have

rendered deficient assistance of counsel.

13 Respondents’ argument is premised on the fact that Petitioner did not present these claims as federally cognizable

claims to the state courts, and therefore they were addressed by the state courts as state law claims. That is

incorrect. It is clear that Petitioner presented both claims to the state courts a federally cognizable ineffective

assistance of counsel claims. The state courts evaluated both claims under the standard for ineffective assistance of

counsel (which is the same in Pennsylvania as it is in federal courts), and they found that because Petitioner was not

entitled to either instruction under Pennsylvania state law, counsel did not render constitutionally deficient

performance by failing to request them.

17

(Exh. 48, ECF No. 14-1, p.815.) On appeal, the Superior Court adopted the PCRA court’s

opinion as its own and affirmed the denial of the PCRA petition for the reasons set forth therein.

(Exh. 53, ECF No. 14-1, pp.938-40.)

The Superior Court’s decision that Petitioner was not entitled to a Kloiber instruction

under Pennsylvania law is a state law determination that is not subject to review by this Court.

See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004); see also Real v. Shannon, 600

F.3d 302, 309-10 (3d Cir. 2010). For this reason alone, Petitioner’s claim that trial counsel was

ineffective for not requesting a Kloiber instruction fails. See, e.g., id. (since the federal habeas

court was bound by the state court’s determination that the instruction given at his trial

comported with state law, the petitioner cannot satisfy the Strickland standard).

This claim also fails because Petitioner has not met his burden imposed on him by

AEDPA’s standard of review at § 2254(d)(1), which is the applicable provision that applies to

this Court’s review of this claim. The state court applied the correct Strickland analysis when it

evaluated this claim. See Exh. 48, ECF No. 14-1, pp.812-13, 814-15. Thus, Petitioner cannot

establish that the state court’s adjudication was “contrary to” Strickland. Williams, 529 U.S. at

406. Nor has Petitioner shown that the state court’s adjudication was an “unreasonable

application of” Strickland, since trial counsel did not perform deficiently, and Petitioner suffered

no prejudice, when counsel did not request a jury instruction that did not apply to the

circumstances of his case.

Based on the above, Petitioner’s claim that trial counsel was ineffective for not requesting

a Kloiber instruction is denied because this Court is bound by the state court’s state law

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determination that the instruction did not apply to Petitioner’s case and also because its decision

withstands review under AEDPA at § 2254(d)(1).

2. Failure to Request a “Corrupt and Polluted Source” Instruction

Petitioner’s second claim is that trial counsel rendered ineffective assistance of counsel

by failing to request a “corrupt and polluted source” instruction concerning the testimony of

Orlando Anderson. As noted above, Petitioner raised this claim in his PCRA petition and on

appeal to the Superior Court from the dismissal thereof.

The PCRA court found that this claim was without merit.

A “corrupt and polluted source” instruction, which informs the jury that the

accomplice is a corrupt and polluted source whose testimony should be viewed

with great caution, is required when an accomplice’s testimony implicates the

defendant. Commonwealth v. Wholaver, 177 A.3d 136, 165 (Pa. 2018);

Commonwealth v. Smith, 17 A.3d 873, 906 (2011) (quoting Commonwealth v.

Chmiel, 639 A.2d 9, 13 (1994)); Commonwealth v. Collins, 957 A.2d 237, 262

(Pa. Super. 2008). Accomplice liability requires evidence that the person: (1)

intended to aid or promote the substantive offense; and (2) actively participated in

that offense by soliciting, aiding, or agreeing to aid the principal. Collins, citing

Commonwealth v. Rega, 933 A.2d 997, 1014 (2007), cert. denied, 552 U.S. 1316

(2008).

The record in this case does not remotely establish that Orlando Anderson was an

accomplice to Petitioner. As set forth above, the trial evidence established that

the petitioner acted alone when he shot and killed the victim. There is absolutely

no evidence that Orlando Anderson intended to aid or promote the murder of the

victim nor was there any evidence establishing that Orlando Anderson actively

participated in the murder by soliciting, aiding, or agreeing to aid the petitioner.

Because this Court would not have given the “corrupt and polluted source”

instruction on this record, trial counsel could not have rendered ineffective

assistance of counsel for failing to request such an instruction.

(Exh. 48, ECF No. 14-1, pp.813-14.) On appeal, the Superior Court adopted the PCRA court’s

opinion as its own and affirmed the denial of PCRA relief. (Exh. 53, ECF No. 14-1, pp.938-40.)

Like claim one, the Superior Court’s decision that Petitioner was not entitled to a corrupt

and polluted source jury instruction under Pennsylvania law is a state law determination that is

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not subject to review by this Court. See, e.g., Priester, 382 F.3d at 402; see also Real, 600 F.3d

at 309-10. For this reason alone, Petitioner’s claim fails. See, e.g., id. (since the federal habeas

court was bound by the state court’s determination that the instruction given at his trial

comported with state law, the petitioner cannot satisfy the Strickland standard).

Additionally, and also like claim one, this claim fails because Petitioner has not met his

burden imposed on him by AEDPA’s standard of review at § 2254(d)(1), which is the applicable

provision that applies to this Court’s review of this claim. The state court applied the correct

Strickland analysis when it evaluated this claim. See Exh. 48, ECF No. 14-1, pp.812-14. Thus,

Petitioner cannot establish that the state court’s adjudication was “contrary to” Strickland.

Williams, 529 U.S. at 406. Nor has Petitioner shown that the state court’s adjudication was an

“unreasonable application of” Strickland, since trial counsel did not perform deficiently, and

Petitioner suffered no prejudice, when counsel did not request a jury instruction that did not

apply to the circumstances of his case.

Based on the above, Petitioner’s claim that trial counsel was ineffective for not requesting

a corrupt and polluted source instruction is denied because this Court is bound by the state

court’s state law determination that the instruction did not apply to Petitioner’s case and also

because its decision withstands review under AEDPA at § 2254(d)(1).

3. Prosecutor Misconduct/Failure to Object to the Prosecutor’s Improper

Closing Argument

Petitioner’s final claim is two parts. He first claims that the prosecutor’s characterization

of him during closing argument as a “cold-blooded killer” was improper, and secondly that trial

counsel was ineffective for failing to object to the comment. As previously stated, this claim is

procedurally defaulted.

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Petitioner never presented the prosecutorial misconduct part of this claim to the state

courts at any point in time. And, while Petitioner did raise the ineffective assistance of counsel

part of this claim in his PCRA petition, and on appeal to the Superior Court in his Statement of

Errors pursuant to Pa. R.A.P. 1925(b), he did not include this claim in his appellate brief. For

that reason, the Superior Court deemed it waived pursuant to Pa. R.A.P. 2116(a).14 (Exh. 53,

ECF No. 14-1, p.940.)

Petitioner’s failure to properly raise and address the ineffectiveness claim in his appellate

brief in compliance with Pa. R.A.P. 2116(a) precluded the Superior Court’s review of the claim

and constituted a waiver under state law. As noted above with respect to the law governing the

doctrine of procedural default, federal habeas courts are prohibited from reviewing a state court

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

is “independent” of the federal question and “adequate” to support the judgment. That is the

case here, Pennsylvania’s rule of waiver for failing to raise an issue on appeal is “independent”

of any federal law question. See, e.g., DiVentura v. Stepniak, No. 95-CV-0443, 1996 WL

107852, at *3 (E.D. Pa. Mar. 11, 1996) (finding that state court’s application of the waiver rule is

“independent” of federal law). This state rule also qualifies as “adequate” because it was firmly

established and regularly followed in non-capital cases at the time of Petitioner’s PCRA appeal.

See, e.g., Commonwealth v. Poplawski, 852 A.2d 323, 326 n.3 (Pa. Super. 2004);

Commonwealth v. Adrulewicz, 911 A.2d 162, 164 n.7 (Pa. Super. 2006); Commonwealth v.

Jarowecki, 923 A.2d 425, 428 (Pa. Super. 2007), reversed on other grounds, 985 A.2d 955 (Pa.

2009). Hence, Petitioner’s waiver of this ineffectiveness claim under state law constitutes a

14 Pa. R.A.P. 2116(a) mandates that an appellant must present all issues on appeal in the statement of questions

involved section of his brief.

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procedural default for purposes of seeking federal habeas relief. Accordingly, both parts of

claim three are procedurally defaulted and Petitioner does not appear to argue the applicability of

any of the exceptions to the procedural default doctrine.

Nevertheless, a simple review of this claim reveals that it is without merit. Prosecutorial

misconduct is insufficient to overturn a conviction unless it “so infect[s] the trial with unfairness

as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416

U.S. 637, 647 (1974). It is not enough to show that a prosecutor’s remarks were inappropriate or

even deserving of universal condemnation. Darden v. Wainwright, 477 U.S. 168, 181 (1986). A

reviewing court must “examine the prosecutor’s offensive actions in context and in light of the

entire trial, assessing the severity of the conduct, the effect of the curative instructions, and the

quantum of evidence against the [petitioner].” Moore v. Morton, 255 F.3d 95, 107 (3d Cir.

2001).

Although this claim was abandoned on appeal to the Superior Court, the PCRA court did

rule on this claim and concluded that the comments made by the prosecutor were not improper.

It stated as follows:

The record makes clear that the prosecutor’s comment that the petitioner was a

cold-blooded killer because, “that’s what the evidence in this case has proved [the

petitioner] to be.” The prosecutor was not infusing his own personal opinions into

his argument. On the contrary, the argument made by the prosecutor was tailored

to convince the jury that Petitioner acted with “wickedness of disposition,

hardness of heart, wanton conduct, cruelty, recklessness of consequences and a

mind regardless of social duty” which was required to prove malice. This Court

believes that the comments were within the proper purview of closing argument

and, because the “cold-blooded killer” comment was based on the evidence and

tailored to the law of first degree murder, the prosecutor’s comments did not

prejudice the jury by forming a fixed bias and hostility toward the defendant such

that the jury was prevented from weighing the evidence objectively in this case.

This Court believes the verdict in this case was a true verdict.

(Exh. 48, ECF No. 14-1, pp.820-21.)

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As previously stated, a prosecutor’s remark must have been so prejudicial as to violate

due process, and here, the prosecutor’s comment did not “so infect[] the trial with unfairness” as

to make Petitioner’s resulting conviction a denial of due process. The comments were properly

based on the evidence that was presented, and therefore Petitioner cannot demonstrate that he

was prejudiced by his counsel’s failure to object to them. See, e.g., Lawrence v. Superintendent

Dallas SCI, 849 F. App’x 386, 387-88 (3d Cir. 2021).

F. Certificate of Appealability

AEDPA codified standards governing 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 form . . . the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by the 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. at § 2253(c)(2).

“When the district court denies a habeas petition on procedural grounds without reaching

the prisoner’s underlying constitutional claim, a [certificate of appealability] should issue when

the prisoner shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

U.S. 473, 484 (2000). When a 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 this standard here,

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Petitioner has not made the requisite showing. Accordingly, the Court will not issue a certificate

of appealabiliy on any of Petitioner’s claims. An appropriate Order will be entered.

Dated: September 28, 2023.

TO

Lisa Pupo Lenihan

United States Magistrate Judge

24

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTONIO BUTLER, )

) Civil Action No. 20 — 1172

Petitioner, )

)

Vv. ) Magistrate Judge Lisa Pupo Lenihan

)

MICHAEL ZAKEN, )

)

Respondent. )

ORDER

AND NOW, this 28th day of September 2023;

IT IS HEREBY ORDERED that, for the reasons set forth in the accompanying

Memorandum Opinion, the Petition for Writ of Habeas Corpus (ECF No. 12) is DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that the Clerk of Court enter judgment in favor of

Respondents and mark this case CLOSED.

AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1)(A) of the Federal

Rules of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as

provided by Rule 3 of the Federal Rules of Appellate Procedure.

Lisa Pupo Lenihan

United States Magistrate Judge

Cc: — Antonio Butler

KU-3265

SCI Mahanoy

301 Grey Line Drive

Frackville, PA 17931

Counsel for Respondents

(Via CM/ECF electronic mail)

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