Scholl v. Oliver

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES ROBERT SCHOLL, : Civil No. 1:22-CV-01426

:

Petitioner, :

:

v. :

:

LONNIE J. OLIVER, et al., :

:

Respondents. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is a petition for habeas corpus pursuant to 28 U.S.C. § 2254

filed by James Robert Scholl (“Petitioner”). (Doc. 1.) The court finds that

Petitioner’s challenges based on sufficiency of the evidence and ineffective

assistance of trial counsel for failing to call character witnesses are not meritorious.

In addition, Petitioner raises more ineffective assistance of trial counsel challenges

and multiple constitutional challenges to his underlying criminal conviction. (Doc.

1.) It appears that Petitioner has attempted to raise these additional issues pro se

multiple times before the state court, but despite his attempts, these issues are

procedurally defaulted, and the merits of these issues will not be addressed by the

court. For these reasons, the court will deny the petition.

PROCEDURAL HISTORY

Petitioner is a self-represented litigant who filed a petition for writ of habeas

corpus in this court in September of 2022, seeking relief from his state court

judgment. (Doc. 1.)

Turning to the underlying state court convictions, Petitioner was found

guilty of three counts of aggravated assault (attempt to cause serious bodily injury),

three counts of aggravated assault (attempt to put official in fear of serious bodily

injury), one count of prohibited possession of a firearm, three counts of terroristic

threats with intention to terrorize another, three counts of simple assault, three

counts of recklessly endangering another person, one count of resisting arrest, and

one count of harassment following a jury trial in March of 2014. Commonwealth

v. Scholl, CP-14-CR-0001683-2013 (Ct. Com. Pl. Centre Cnty.).

Petitioner filed a direct appeal, and the Superior Court of Pennsylvania

affirmed the convictions but remanded for re-sentencing because the trial court had

improperly imposed a mandatory minimum sentence. See Commonwealth v.

Scholl, 251 A.3d 1208, 2021 WL 798891 at *1 (Pa. Super. Mar. 2, 2021). The

Supreme Court denied allowance of appeal in February 2016. On March 16, 2016,

the trial court re-sentenced Petitioner to 16 to 32 years of imprisonment. Id.

Petitioner filed a pro se petition under the Pennsylvania Post Conviction

Relief Act (“PCRA”) in March of 2016. Id. The petition raised ineffective

assistance of counsel stating “[trial counsel] asked the jury to convict me of all

charges during the closing argument [and] to impose a consecutive sentence at the

sentencing hearing” and constitutional issues including the failure of the police to

knock and announce. (Doc. 24-2, pp. 3–4.)1 The PCRA court appointed counsel,

who filed an amended petition stating “[i]n addition to the allegations raised in his

pro se Petition, Petitioner seeks a new trial on the grounds that trial counsel was

ineffective because she failed to call character witnesses and the Petitioner testified

on his own behalf at trial.” (Doc. 24-3, p. 3.)

A hearing was held on November 3, 2017, and Petitioner’s counsel offered

the following in her opening statement: “We have had several conferences with the

trial judge regarding this matter and in one of those conferences it was determined

that the only outstanding issue that may have merit and does need to have

testimony on the record is the issue of the failure to call character witnesses.”

(Doc. 24-4, p. 4.) Petitioner and trial counsel then testified at the hearing, and the

PCRA court denied the petition on December 6, 2017. (Doc. 24-4; Doc. 10-1, pp.

70–74.) The PCRA court decision only addressed the issue of ineffective

assistance of trial counsel based on the failure to call any character witnesses. (Id.)

Petitioner appealed to the Pennsylvania Superior Court alleging that the

PCRA court erred in denying relief and finding the trial counsel was not ineffective

1 For ease of reference, the court utilizes the page numbers form the CM/ECF header.

for failing to call character witnesses at the time of trial. Scholl, 2021 WL 798891

at *1–2. The court has reviewed Petitioner’s brief on appeal, and the only issue

addressed on appeal was the alleged ineffective assistance of counsel for failing to

call character witnesses. Appellate Brief, Commonwealth v. Scholl, No. 357 MDA

2020, 2020 WL 7647007 (Pa. Super. Aug. 7, 2020). In a March 2, 2021 decision,

the Superior Court affirmed the PCRA court’s denial of the petition. Scholl, 2021

WL 798891 at *1–3. Petitioner filed a petition for allowance of appeal with the

Supreme Court of Pennsylvania, which was denied on September 28, 2021.

Commonwealth v. Scholl, No. 126 MAL 2021, 263 A.3d 1137 (S. Ct. Pa. Sep. 28,

2021).

While the initial PCRA appeal was pending, Petitioner filed another pro se

PCRA petition on November 29, 2018. (Doc. 24-5.) This PCRA petition again

raised the issues of ineffective assistance of counsel and constitutional claims

raised in the initial PCRA petition that went unaddressed after counsel was

appointed. (Id.) Pursuant to an opinion and order in the Court of Common Pleas

of Centre County, this November 29, 2018 petition was deemed untimely and

denied for that reason. (Doc. 10-1, pp. 33–35.) Petitioner appealed this order on

July 4, 2019. (Id.) According to the docket sheet of the appeal, the case was

discontinued at Petitioner’s request. Commonwealth v. Scholl, No. 165 MDA 2019

(Pa. Super.)

In November of 2021, Petitioner filed yet another pro se PCRA petition.

(Doc. 24-7.) This petition again raised the issues set forth in the initial PCRA

petition that went unaddressed by the state court following the appointment of

counsel. (Id.) The court will refer to this as the “second PCRA” because that is

how the state court proceedings refer to it in the following procedural summary:

The PCRA court appointed Counsel, who filed an amended PCRA

petition asserting several constitutional violations, including a claim

that trial counsel had argued in favor of his conviction during closing

arguments, and a possible suppression issue. Counsel did not address

the timeliness of Scholl’s second PCRA petition. The Commonwealth

answered and argued that the petition was facially untimely, did not

state a timeliness exception, and, in any event, raised previously

litigated claims. The PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss the petition as untimely. Counsel did not respond.

The PCRA court dismissed Scholl’s second petition on August 9, 2022,

and Scholl timely appealed. The PCRA court ordered a Pa.R.A.P.

1925(b) statement, and Counsel timely filed a statement of her intent to

file a Turner/Finley letter brief in the appeal. See Pa.R.A.P. 1925(c)(4).

Counsel filed in this Court a petition to withdraw from representation

and a Turner/Finley letter brief concluding that Scholl’s second PCRA

petition was time-barred. This Court determined Counsel minimally

met the procedural requirements to seek withdrawal but directed

Counsel to file a corrected petition to withdraw, advise Scholl of his

appellate rights, and provide him a copy of her Turner/Finley letter

brief. Commonwealth v. Scholl, ––– A.3d ––––, 2023 WL 5014628

(Pa. Super. 2023) (unpublished memorandum at *3). Following

additional orders from this Court, Counsel has complied.

Commonwealth v. Scholl, No. 1328 MDA 2022, 2023 WL 7104445 at *1–2

(Super. Ct. Pa. Oct. 27, 2023). Petitioner filed a pro se response asserting that his

underlying PCRA claims have merit and requesting the appointment of new

counsel. Id. at *2. On October 27, 2023, the Pennsylvania Superior Court

affirmed the second PCRA court’s finding that the second petition was untimely,

granted counsel’s petition to withdraw as counsel, and denied Petitioner’s request

for new counsel as moot. Id. at *4.

While this second PCRA petition was pending, Petitioner filed the instant

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court on

September 5, 2022. (Doc. 1.)2 The petition seeks review of the following issues:

(1) sufficiency of the evidence; (2) ineffective assistance of trial counsel; and (3)

various constitutional challenges.

Respondents timely filed a response on November 1, 2022, asserting that the

issues raised by Petitioner were unexhausted and that the petition was untimely.

(Docs. 10, 10-2.) Petitioner did not file a traverse. The court reviewed the

response, and on December 28, 2023, ordered Respondents to file a response

addressing the timeliness of the petition considering the March 16, 2016

resentencing and address the underlying merits of the petition. (Doc. 12.)

Petitioner then filed a traverse on March 5, 2024, simply arguing that the

second PCRA petition was not untimely. (Doc. 20.) On March 28, 2024,

2 The petition was received and filed in this court on September 13, 2022. However, the petition

states that Petitioner placed it in the prison mailing system on September 5, 2022. (Doc. 1, p.

14.) Therefore, under the prisoner mailbox rule, the filing date is September 5, 2022. See Pabon

v. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir. 2011) (noting that “[t]he federal ‘prisoner mailbox

rule’ provides that a document is deemed filed on the date it is given to prison officials for

mailing (citing Burns v. Morton, 134 F.3d 109, 113 (3d Cir.1998)).

Respondents filed the requested response conceding that the Section 2254 petition

filed in this court was timely. (Doc. 21.) All issues having been briefed, the court

will now address the Section 2254 petition.

VENUE

Under 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus under

Section 2254 can be filed in either the district where the petitioner is in custody, or

in the district where the petitioner was convicted and sentenced. 28 U.S.C. §

2241(d). Petitioner was convicted and sentenced in Centre County, Pennsylvania,

which is located in this district. Therefore, venue in this district is proper.

STANDARD OF REVIEW

Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who

were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran,

247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414,

146 (1998)). The exercise of restraint by a federal court in reviewing and granting

habeas relief in state court criminal prosecutions is appropriate due to

considerations of comity and federalism. See Engle v. Isaac, 456 U.S. 107 (1982).

“The States possess primary authority for defining and enforcing the criminal law.

In criminal trials they also hold the initial responsibility for vindicating

constitutional rights. Federal intrusions into state criminal trials frustrate both the

States’ sovereign power and their good-faith attempts to honor constitutional law.”

Id. States also have a recognized interest in the finality of convictions that have

survived direct review within the state court system. See Brecht v. Abrahamson,

507 U.S. 619, 620 (1993).

A district court may entertain an application for a writ of habeas corpus filed

by a person in state custody “only on the ground that he is in custody in violation

of the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). If a claim

presented in a § 2254 petition has been adjudicated on the merits in state court

proceedings, habeas relief cannot be granted unless:

the adjudication of the claim – (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the

United States; or (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.

Id. § 2254(d). Petitioner bears the burden under this standard of review.

Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining

habeas corpus from a federal court, a state prisoner must show that the state court’s

ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.”)

DISCUSSION

In the second response, Respondents have agreed that the petition is timely.

Therefore, the court will address each of Petitioner’s three challenges in turn.

A. The Sufficiency of the Evidence Challenge Has No Merit.

Petitioner’s initial challenge to his conviction is the sufficiency of the

evidence. (Doc. 1, p. 5.) He challenges the sufficiency of the evidence underlying

the three convictions for aggravated assault and the conviction for resisting arrest

with the following assertions: (1) there was no bullet or round in the chamber; (2)

the police officers did not sustain any serious bodily injury; (3) he did not know

that the officers were outside the residence; (4) he would have had ample

opportunity to inflict serious bodily injury if he intended to harm the police

officers; and (5) there was insufficient evidence to prove that he was resisting

arrest. (Doc. 1, p. 5.)

Petitioner initially raised the issue of the sufficiency of the evidence

concerning the three convictions for aggravated assault to the Pennsylvania

Superior Court. (Doc. 21-3, pp. 6–10.) In the June 2, 2015 Superior Court

decision, the state court rejected this argument:

Under Section 2702(a)(1), a person may be convicted of aggravated

assault if he “attempts to cause serious bodily injury to another, or

causes such injury intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human

life. 18 Pa.C.S. § 2702(a)(1). “Serious bodily injury” means “[b]odily

injury which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” 18 Pa.C.S. § 2301. “For

aggravated assault purposes, an ‘attempt’ is found where the accused,

with the required specific intent, acts in a manner which constitutes a

substantial step toward perpetrating a serious bodily injury upon

another.” Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super.

2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (Pa.2005). Such

intent may be proven circumstantially. Commonwealth v. Rightley, 421

Pa.Super. 270, 617 A.2d 1289, 1295 (Pa. Super. 1992).

Scholl claims “[t]he evidence was insufficient to prove beyond a

reasonable doubt that [he] possessed the requisite specific intent to

cause serious bodily injury to Officer Chambers, Sergeant Albright, and

Officer Shaffer, and that he took a ‘substantial step’ towards inflicting

serious bodily injury.” Scholl's Brief, at 21. Specifically, Scholl argues

that he

never fired the gun, nor did he ever attempt to discharge

the gun. Upon examination, the clip or magazine

contained one single round. There were no rounds in the

chamber as the firearm was unprimed. In order for

[Scholl] to actually fire the gun, he would have had to rack

the slide with his hand to chamber a round from the clip or

magazine into the chamber. [Scholl] never uttered any

verbal threats to fire the gun or to harm the officers. In

fact, from the time the trailer door opened until he was

placed in handcuffs, [Scholl] did not say anything at all.

Id. at 28, 617 A.2d 1289 (record citations omitted). In support of his

argument, Scholl cites to case authority for the proposition that the mere

act of pointing a gun at another, without more, does not constitute

aggravated assault. See Scholl's Brief at 25–28, citing Commonwealth

v. Matthew, 589 Pa. 487, 909 A.2d 1254 (Pa. 2006), Commonwealth v.

Alford, 880 A.2d 666 (Pa. Super. 2005), and Commonwealth v. Savage,

275 Pa. Super. 96, 418 A.2d 629, 632 (Pa. Super. 1980).

In Alford, the defendant, a jail escapee, was convicted under §

2702(a)(1) of aggravated assault after he pounded on a woman’s door,

was refused entry, and then momentarily pointed a gun through her

front-door window, after which she fled the house through the back

door. In reversing that conviction, this Court noted, “It is well settled

that merely pointing a gun at another person in a threat to cause serious

bodily injury does not constitute an aggravated assault.” 880 A.2d at

671; see also Savage, supra.

Alford was followed by our Supreme Court’s later pronouncement in

Matthew, supra. In Matthew, the defendant was convicted of

aggravated assault under § 2701(a)(1) after he first placed a loaded gun

against the victim’s throat, continued to restrain the victim throughout

the encounter by pointing the gun at him, and threatened to kill him.

The Supreme Court upheld the sufficiency of the evidence supporting

that conviction. The Matthew Court reaffirmed that the totality of the

circumstances are examined to determine if a defendant demonstrated

the intent to inflict serious bodily injury. Matthew, 909 A.2d at 1258.

The Court concluded that the defendant “attempted to inflict serious

bodily injury upon [the victim] and intended to do so” in light of the

fact that he “placed a loaded gun against [the victim’s] throat,

repeatedly pointed it at him, and threatened to kill him seven to ten

times.” Id. at 1258. Significantly, the Matthew Court continued that,

if the “threats alone were not enough to establish his intent, the fact-

finder could determine his intent from pushing the loaded gun against

[the victim’s] throat and otherwise pointing it at him.” Id. at 1259.

Here, the trial court rejected Scholl’s argument, as follows:

The evidence showed [Scholl] pointed the loaded weapon

at the officers. The Court acknowledges this alone is

insufficient to infer the specific intent to injure required

for aggravated assault. However, when combined with the

testimony of [Scholl’s] finger on the trigger and continued

attempts to direct the firearm at the officers, the evidence

was sufficient to establish the required intent to cause

serious bodily injury . . . to the officers. The mere fact that

the officers were able to overpower [Scholl] and take the

weapon from him before he was able to fire it does not

negate his actions nor the intent they demonstrate.

Further, the act of pointing the loaded gun with his finger

on the trigger and his continuing attempt to direct the

weapon at officers while they were attempting to disarm

him was also [a] substantial step toward perpetrating

serious bodily injury upon them. Again, simply because

the officers were able to overpower [Scholl] and stop him

from firing the weapon does not negate the intent

demonstrated by his actions. Therefore, the evidence is

sufficient to support the “intent” and “substantial step”

elements. . . .

Trial Court Opinion, 5/21/2014, at 5 (citation omitted). Based on our

review, we agree with the trial court that Scholl’s sufficiency challenge

fails.

“Where the intention of the actor is obvious from the act itself, the [fact-

finder] is justified in assigning the intention that is suggested by the

conduct.” Matthew, 909 A.2d at 1259 (citation omitted). The evidence

showed Scholl pointed the loaded gun at three police officers,

redirecting it at each one individually. Scholl kept his finger on the

trigger of the gun and refused to disarm even though police ordered him

to drop the weapon 25 or 30 times. N.T., 3/24/2014, at 64. The officers

wrestled Scholl on the ground for approximately 30 seconds to a minute

before seizing the gun from him. The gun had one bullet in the clip or

magazine. This evidence, viewed in the light most favorable to the

Commonwealth as verdict winner, was sufficient to support the jury’s

conclusion that Scholl had the intent to cause serious bodily harm to the

officers, and that he took a substantial step towards inflicting serious

bodily injury, as required by Section 2702(a)(1). Therefore, Scholl’s

first argument warrants no relief.

(Doc. 21-3, pp. 7–10.)

The “clearly established Federal law” governing sufficiency of the evidence

claims is set forth in the United States Supreme Court’s decision in Jackson v.

Virginia: “after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” 443 U.S. 307, 319 (1979). This is consistent

with the standard used by the Superior Court in reviewing Petitioner’s sufficiency

of the evidence challenge set forth above. See Evans v. Court of Common Pleas,

Delaware Cnty., 959 F.2d 1227, 1233 (3d Cir. 1992) (noting that the test for

sufficiency of the evidence is the same under both Pennsylvania and federal law).

Because the Superior Court applied the correct legal standard, its adjudication

satisfies review under the “contrary to” clause of § 2254(d)(1).

This court next considers whether the trial court’s decision amounted to an

“unreasonable application” of Jackson. The Supreme Court has further addressed

the standard set forth in Jackson:

Jackson claims face a high bar in federal habeas proceedings because

they are subject to two layers of judicial deference. First, on direct

appeal, “it is the responsibility of the jury. . . to decide what conclusions

should be drawn from evidence admitted at trial. A reviewing court

may set aside the [trial court’s] verdict on the ground of insufficient

evidence only if no rational trier of fact could have agreed with the [trial

court].” Cavazos v. Smith, 565 U.S. 1 (2011). And second, on habeas

review, “a federal court may not overturn a state court decision

rejecting a sufficiency of the evidence challenge simply because the

federal court disagrees with the state court. The federal court instead

may do so only if the state court decision was ‘objectively

unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U.S. 766 (2010)).

- - -

[T]he only question under Jackson is whether [the state court’s] finding

was so insupportable as to fall below the threshold of bare rationality.

The state court of last review did not think so, and that determination

in turn is entitled to considerable deference under AEDPA, 28 U.S.C.

§ 2254(d).

Coleman v. Johnson, 566 U.S. 650, 651–56 (2012).

Here, the state court’s finding included pertinent footnotes that further

addressed evidence that supported the jury’s factual findings:

Officer Shaffer testified: “The gun was sort of moving around in front

of everybody’s face as [Scholl] was attempting to struggle to keep hold

of the weapon while Officer Chambers was trying to remove it from his

hands.” N.T., 3/24/2014, at 56. He further stated that the gun “came

right across my face at least once[.]” Id. Sergeant Albright testified

that Scholl pointed the gun at Officer Chambers and at himself. Id. at

89, 91, 96. Officer Chambers also testified that Scholl pointed the gun

at him, “a foot from his face.” Id. at 118.

(Doc. 21-3, p. 9.)

While we acknowledge Scholl’s argument that no bullet was in the

chamber of the gun, the magazine did contain one live round. Scholl

indicated to police he had taken the pistol and put the magazine in it,

thereby intentionally loading the weapon. See N .T., 3/24/2014, at 148,

162 (Commonwealth Exhibit 5), 223. Had Scholl operated the slide,

chambering the round, he could have fired the gun. The actions of the

police in placing their hands on the weapon prevented that from

happening.

(Doc. 21-3, p. 10.)

Here, Petitioner’s entire argument is contained in a bulleted list in the

petition:

• No bullet or round in the chamber

• Officers did not sustain any Serious Bodily Injury

• I did not know that officers were outside my residence

• I would have had Ample Opportunity to inflict S.B.I. if it was my

intent to harm police officers

(Doc. 1, p. 5.) The traverse further fails to address the evidence considered or

provide any rationale as to why or how the evidence the trial court relied upon in

affirming the jury’s verdict was “objectively unreasonable” as required in Jackson.

(Doc. 20.) Instead, Petitioner raises the question, “[i]s there any medical proof the

officers actually suffered Serious Bodily Injury?” (Id, p. 5.) Petitioner then fails to

address the question in briefing, leaving the court to assume this is a rhetorical

question intended to solidify his argument. (Id.) However, as the trial court noted,

18 Pa.C.S. § 2702(a)(1) only requires the attempt to cause serious bodily injury

with a minimum mens rea of recklessly. (Doc. 21-3, p. 6.) Considering this, the

court finds that the state court’s decision was not objectively unreasonable, and

Petitioner’s sufficiency of the evidence challenge fails.

Next, Petitioner challenges the sufficiency of the evidence to support the

conviction of resisting arrest. (Id., pp. 10–12.) His petition contains a single

sentence in support of his assertion: “Insufficient evidence to prove that I was

resisting arrest.” (Doc. 1, p. 5.) Again, in the June 2, 2015 Superior Court

decision, the state court rejected this argument:

A defendant may be convicted of resisting arrest if he, “with the intent

of preventing a public servant from effecting a lawful arrest or

discharging any other duty, . . . creates a substantial risk of bodily injury

to the public servant or anyone else, or employs means justifying or

requiring substantial force to overcome the resistance.” 18 Pa.C.S. §

5104. This statutory language “does not require the aggressive use of

force such as a striking or kicking of the officer.” Commonwealth v.

McDonald, 17 A.3d 1282, 1285 (Pa. Super. 2011) (quotations and

citation omitted), appeal denied, 611 Pa. 680, 29 A.3d 372 (Pa. 2011).

We note, initially, that a lawful arrest is an element of resisting arrest,

Commonwealth v. Jackson, 592 Pa. 232, 924 A.2d 618, 620 (Pa. 2007),

and that, in this case, police had probable cause to arrest based upon

Scholl’s actions when he confronted police. With regard to the

remaining elements, Scholl claims he did not create a “substantial risk

of bodily injury” to the officers or require “substantial force” to

overcome. Scholl’s Brief at 31.

We recognize that, in general, a “minor scuffle” is insufficient to

support a charge of resisting arrest. Commonwealth v. Rainey, 285

Pa.Super. 75, 426 A.2d 1148, 1150 (Pa. Super. 1981). However, the

evidence in this case showed more than a minor scuffle. Officer Shaffer

testified that after the officers had wrested the gun from Scholl, Scholl

continued to “actively resist” and he had to use a “shoulder lock.” N.T.,

3/24/2014, at 63. Officer Shaffer explained that Scholl was “wrestling

trying to keep us from being able to get his hand . . . tensing up . . .

keeping us from being able to get control of it . . . and we’re just trying

to wrench his hands to get them into a position where we can actually

apply handcuffs at that point.” Id. He further testified that Scholl “did

not acquiesce to anything until we finally had a handcuff on one hand

and had him rolled over and bellied out.” Id. at 64, 426 A.2d 1148.

Sergeant Albright confirmed that Scholl “was actively resisting . . .

even after Officer Chambers got the firearm away[,]” and that “Officer

Shaffer was the one who was actually able to arm bar [Scholl].” Id. at

106, 426 A.2d 1148. Likewise, Officer Chambers also testified that

after he took hold of the gun from Scholl and stood up, the struggle

continued. See id. at 123, 426 A.2d 1148. He estimated that after the

gun was removed from Scholl, it took “maybe another 30 [seconds] to

get him secured[.]” Id. at 121, 426 A.2d 1148.

The statutory language of Section 5104 criminalizes resistance

behavior that requires substantial force to surmount. Although Scholl

cites Sergeant Albright’s testimony that Scholl may have just been

struggling in the limited space of the trailer to get his arms behind his

back, and that had he truly felt Scholl was resisting arrest, he would

have tasered him, our standard of review requires that we view the

evidence in the light most favorable to the Commonwealth as verdict

winner. Here, we conclude that the evidence was sufficient for the jury

to conclude that the officers had to employ substantial force to

overcome Scholl’s resistance, and to find him guilty of resisting arrest.

See Commonwealth v. Thompson, 922 A.2d 926, 928 (Pa. Super. 2007)

(appellant guilty of resisting arrest where she would not allow police

officer to handcuff her and refused order to put her hands behind her

back; officer’s efforts to restrain her left him exhausted). Accordingly,

this claim likewise fails.

(Doc. 21-3, pp. 10–12.)

Again, the court finds that the state court used the appropriate standard in

reviewing the sufficiency of the evidence challenge: “after reviewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson,

443 U.S. at 319. Also, the court has reviewed the testimony relied upon by the

state court in the jury trial transcript, Doc. 24-1, and determined that the state

court’s decision was not objectively unreasonable. Therefore, this sufficiency of

the evidence challenge has no merit.

B. The Ineffective Assistance of Trial Counsel Challenges Cannot

Succeed.

Petitioner alleges ineffective assistance of trial counsel in four specific

aspects of representation: (1) failing to introduce character witnesses at trial; (2)

asking the jury to convict Petitioner on all charges during closing argument; (3)

asking for a consecutive sentence during the sentencing hearing; and (4)

demonstrating prejudice. (Doc. 1, p. 6.) Only Petitioner’s initial challenge

regarding character witnesses is exhausted and will be addressed by the court on

the merits. The remaining three challenges are procedurally defaulted and will not

be addressed on the merits.

1. Ineffective Assistance of Counsel Claim Based on Failure to

Call Character Witnesses.

Following denial at the PCRA court, the Superior Court affirmed that trial

counsel was not ineffective for failing to call character witnesses at the jury trial:

Scholl alleges his trial counsel was ineffective for failing to call

character witnesses to show his reputation for peacefulness or honesty.

Scholl’s Br. at 11. Scholl argues that “there was no reasonable basis

for trial counsel’s failure to call character witnesses regarding said traits

because the crux of Scholl’s defense was that he did not point a firearm

at police officers.” Id. He further argues that the trial counsel’s “failure

to investigate the potential character witnesses identified by Scholl

likely affected the outcome of the trial and served to deprive Scholl a

fair trial in this matter.” Id.

When reviewing the denial of PCRA relief, we consider whether “the

determination of the PCRA court is supported by the evidence of record

and is free of legal error. The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Larkin, 235 A.3d 350, 355 (Pa. Super.

2020) (en banc) (quoting Commonwealth v. Barndt, 74 A.3d 185, 192

(Pa. Super. 2013)).

We presume counsel was effective and a petitioner bears the burden of

proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965

(Pa. Super. 2017). A petitioner may overcome the presumption by

pleading and proving all of the following: “(1) the underlying legal

claim has arguable merit; (2) counsel had no reasonable basis for his or

her action or inaction; and (3) the petitioner suffered prejudice because

of counsel's ineffectiveness.” Commonwealth v. Paddy, 15 A.3d 431,

442 (Pa. 2011). A petitioner’s failure to prove any one of these factors

defeats the ineffectiveness claim. See Commonwealth v. Dennis, 950

A.2d 945, 954 (Pa. 2008).

To prove a claim of trial counsel ineffectiveness for failure to call a

witness, the defendant must plead and prove that “(1) the witness

existed; (2) counsel was either aware of or should have been aware of

the witness's existence; (3) the witness was willing and able to

cooperate on behalf of the defendant; and (4) the proposed testimony

was necessary to avoid prejudice to the defendant.” Commonwealth v.

Tharp, 101 A.3d 736, 757 (Pa. 2014) (quoting Commonwealth v.

Bryant, 855 A.2d 726, 746 (Pa. 2004)).

The PCRA court found trial counsel had a reasonable basis for her

decision not to call character witnesses, that is, to prevent cross-

examination about Scholl’s prior record. PCRA Ct. Op. at 3-4. The

PCRA court further concluded that Scholl did not prove prejudice, as

he did not prove the trial outcome would have been different had

counsel called the witnesses, noting the proposed witnesses had only

known Scholl for a few months. The court noted that Scholl presented

no evidence that the witnesses were available or would have testified

on his behalf. Id. at 4-5.

The PCRA court’s factual findings are supported by the record, and it

did not commit legal error in finding Scholl failed to establish counsel

acted unreasonably and failed to establish prejudice. Counsel testified

that she did not recall discussing character witnesses with Scholl, but

would have recommended against it, as the Commonwealth could have

asked the witnesses about whether they knew of Scholl’s prior

convictions. Moreover, Scholl has failed to plead, much less prove,

that specific witnesses were willing and available to give favorable

character testimony, as he never provided witness certifications from

any proposed character witness and did not present testimony from any

such witness at the PCRA hearing.

Scholl, 2021 WL 798891, at *2–3.

Petitioner now raises this issue before this court. (Doc. 1, p. 6.) Considering

that the state court had an opportunity to review the issue on the merits, the court

will address it now.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the assistance of counsel for his defence.”

U.S. Const. amend VI. The purpose of the right to the assistance of counsel is to

ensure a fair trial, and “the Court has recognized that ‘the right to counsel is the

right to the effective assistance of counsel.’” Strickland v. Washington, 466 U.S.

668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).

“The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Id. “The Sixth

Amendment guarantees reasonable competence, not perfect advocacy judged with

the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003). The clearly

established federal law as to an ineffective-assistance-of-counsel claim is

Strickland, which sets forth the following two-prong analysis.

Under the first prong of Strickland, the petitioner must establish that

counsel’s performance was deficient. 466 U.S. at 687. “Strickland’s first prong

sets a high bar.” Buck v. Davis, 580 U.S. 100, 118 (2017). To establish that

counsel’s performance was deficient, the petitioner must establish that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 688. “Judicial scrutiny of counsel’s performance must be highly

deferential.” Id. at 689. As such, the court “must apply a ‘strong presumption’

that counsel’s representation was within the ‘wide range’ of reasonable

professional assistance,” Harrington, 562 U.S. at 104 (quoting Strickland, 466

U.S. at 689), and “[t]o overcome that presumption, a defendant must show that

counsel failed to act ‘reasonabl[y] considering all the circumstances[.]’” Cullen v.

Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 688). “The

challenger’s burden is to show ‘that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.’” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687).

Under the second prong of Strickland, the petitioner must establish

prejudice. Strickland, 466 U.S. at 687. To do so, the petitioner must show a

reasonable probability that, if not for counsel’s errors, the result of the proceeding

would have been different. Id. at 694. The petitioner “need not prove that the

evidence would have been insufficient if not for counsel’s errors . . . [or] ‘that

counsel’s deficient conduct more likely than not altered the outcome.’” Saranchak

v. Sec'y, Pa. Dep't of Corr., 802 F.3d 579, 588 (3d Cir. 2015) (quoting Strickland,

466 U.S. at 693). Rather, the issue is whether there is a reasonable probability of a

different result. Id. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “That

requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.”

Pinholster, 563 U.S. at 189 (quoting Harrington, 562 U.S. at 112).

To prevail on an ineffective-assistance claim, a petitioner must satisfy both

prongs of Strickland. A court can choose which prong of the standard to apply

first, and it may reject an ineffectiveness claim on the ground that the petitioner

was not prejudiced without addressing whether counsel’s performance was

deficient. Strickland, 466 U.S. at 697.

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010). “Even under de novo review, the standard for

judging counsel’s representation is a most deferential one.” Premo v. Moore, 562

U.S. 115, 122 (2011). And “[e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more difficult.”

Harrington, 562 U.S. at 105. When the state court has decided the claim on the

merits, “[t]he question ‘is not whether a federal court believes the state court’s

determination’ under the Strickland standard ‘was incorrect but whether that

determination was unreasonable—a substantially higher threshold.’” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.

465, 473 (2007)). “And, because the Strickland standard is a general standard, a

state court has even more latitude to reasonably determine that a defendant has not

satisfied that standard.” Id.

In addressing Petitioner’s specific claim of ineffective assistance of counsel

for failing to call a character witness, the Superior Court applied the governing test

for ineffective assistance of counsel claims announced by the Pennsylvania

Supreme Court in Commonwealth v. Pierce, 537 Pa. 514, 524 (1994), but the

Superior Court cited to Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011)

(“To prevail in a claim of ineffective assistance of counsel, a petitioner must

overcome the presumption that counsel is effective by establishing all of the

following three elements, as set forth in Commonwealth v. Pierce, 515 Pa. 153,

527 A.2d 973, 975–76 (1987): (1) the underlying legal claim has arguable merit;

(2) counsel had no reasonable basis for his or her action or inaction; and (3) the

petitioner suffered prejudice because of counsel's ineffectiveness.”). The United

States Court of Appeals for the Third Circuit has determined that the Pierce test

conforms to established federal law and is “not contrary to the Strickland test.”

Henderson v. DiGuglielmo, 138 F. App’x 463, 469 (3d Cir. 2005) (citing Werts v.

Vaughn, 228 F.3d 178, 203–04 (3d Cir. 2000)) (recognizing the Pierce test as

materially identical to the Strickland test). Therefore, the Superior Court’s applied

test is not “contrary to” the test established in Strickland.

Nor does the Superior Court’s determinations that trial counsel provided a

reasonable basis for not calling witnesses and that Petitioner failed to demonstrate

any prejudice constitute an objectively unreasonable application of federal law.

See Knowles, 556 U.S. at 123. Petitioner has not identified any decision of the

state courts which is “contrary to, or involved an unreasonable application of,

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

States.” 28 U.S.C. § 2254(d)(1). Petitioner, therefore, does not meet his burden of

proving ineffective assistance of counsel with respect to the failure to call character

witnesses.

2. Ineffective Assistance of Counsel Claims That Are

Procedurally Defaulted.

A federal court may not grant a writ of habeas corpus on a claim brought by

an individual in custody pursuant to a state court judgment unless: (1) “the

applicant has exhausted the remedies available in the courts of the State;” (2)

“there is an absence of available State corrective process;” or (3) “circumstances

exist that render such process ineffective to protect the rights of the applicant.” 28

U.S.C. § 2254(b)(1)(A), (b)(1)(B); see also Wilkerson v. Sup’t Fayette SCI, 871

F.3d 221, 227 (3d Cir. 2017). Section 2254(c) provides that “[a]n applicant shall

not be deemed to have exhausted the remedies available in the courts of the State,

within the meaning of this section, if he has the right under the law of the State to

raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).

Thus, when a state prisoner has failed to exhaust the legal remedies available to

him in the state courts, federal courts will typically refuse to entertain a petition for

writ of habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). It is the

petitioner who bears the burden of establishing the exhaustion requirement has

been satisfied. See Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000).

“[T]he exhaustion doctrine is designed to give the state courts a full and fair

opportunity to resolve federal constitutional claims before those claims are

presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

To satisfy the exhaustion requirement, a petitioner must invoke “one complete

round” of the applicable state’s appellate review process, thereby giving the courts

of that state “one full opportunity” to resolve any issues relevant to such claims.

Id. at 845 (holding that a petitioner must present every claim raised in the federal

petition to the state’s trial court, intermediate appellate court, and highest court

before exhaustion is considered satisfied). To “fairly present” a claim, the

petitioner must present his or her “factual and legal substance to the state courts in

a manner that puts them on notice that a federal claim is being asserted.”

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

The failure to properly present claims to the state court generally results in a

procedural default. Lines, 208 F.3d at 150–60. “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.’” 28 U.S.C. § 2254(b). In such cases, however, applicants are considered

to have procedurally defaulted their claims and federal courts may not consider the

merits of such claims “unless the applicant establishes ‘cause and prejudice’ or a

‘fundamental miscarriage of justice’ to excuse his or her default.” McCandless,

172 F.3d at 260 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

To demonstrate “cause” for a procedural default, a petitioner must point to

some objective external factor which impeded his efforts to comply with the state’s

procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “Prejudice”

will be satisfied only if he can demonstrate that the outcome of the state

proceeding was “unreliable or fundamentally unfair” as a result of a violation of

federal law. See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

Alternatively, if a petitioner demonstrates that a “constitutional violation has

probably resulted in the conviction of one who is actually innocent,” Murray, 477

U.S. at 496, then a federal court can excuse the procedural default and review the

claim in order to prevent a fundamental miscarriage of justice. Edwards v.

Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir.

2001). The miscarriage of justice exception applies only in extraordinary cases,

and actual innocence means factual innocence, not legal insufficiency. Bousley v.

United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner

establishes actual innocence by asserting “new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial,” showing that no reasonable

juror would have voted to find the petitioner guilty beyond a reasonable doubt.

Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004).

Petitioner raises three other grounds for ineffective assistance of trial

counsel: (1) asking the jury to convict Petitioner on all charges during the closing

argument; (2) asking for a consecutive sentence during the sentencing hearing; and

(3) demonstrating prejudice. (Doc. 1, p. 6.) He alleges that these arguments were

raised in his PCRA petition, which was denied by the Court of Common Pleas and

affirmed by the Superior Court. (Id., p. 7.) However, he is only partially correct.

Petitioner has raised these issues in all three of his pro se PCRA petitions filed in

state court. (Docs. 24-2, 24-5, 24-7.) In his initial pro se PCRA petition, once

counsel was appointed, an amended petition was filed. (Doc. 24-3.) While this

amended petition incorporated the claims made in the initial pro se PCRA petition,

these issues were not addressed at the hearing or by the PCRA court. (Doc. 24-4;

Doc. 10-1, pp. 70–74.) When the PCRA denial was appealed to the Superior

Court, the only issue briefed in that appeal was the ineffective assistance of trial

counsel for failing to call character witnesses. Appellate Brief, Commonwealth v.

Scholl, No. 357 MDA 2020, 2020 WL 7647007. Thus, while Petitioner raised the

issues before the PCRA court, they were not fairly presented to the state court for a

full round of review. The proper recourse for the PCRA court overlooking these

issues was to raise them on the appeal to the Superior Court. This was not done.

Subsequent pro se PCRA petitions raised the issues, but these petitions were

deemed untimely. (Docs. 24-5, 24-7.) Therefore, Petitioner failed to invoke “one

complete round” of the applicable state’s appellate review process. As such, these

issues are unexhausted and procedurally defaulted.

In his traverse, Petitioner does not point to any external factor to

demonstrate cause in his default. Instead, he merely argues that his second PCRA

petition was timely filed because he submitted new evidence. (Doc. 20.)

However, his new evidence is merely his conclusion that counsel in the first PCRA

petition was ineffective, which the state court found did not constitute new

evidence. (Id.)

Petitioner alleges “a fundamental miscarriage of justice” to excuse his

default as allowed in McCandless. (Doc. 20, pp. 4–5.) However, Petitioner’s

entire argument merely asserts legal conclusions:

Would refusal to consider a constitutional claim due to a procedural bar

result in a fundamental miscarriage of justice? If so, then the Federal

Court should consider the merits of the claim.

1) Petitioner[’]s underlying legal claim has arguable merit. 2) Counsel

had no reasonable basis for her action or inaction and 3) The Petitioner

suffered prejudice because of counsel[’]s ineffectiveness.

(Id.) This seemingly rhetorical question followed by three legal assertions is not

sufficient to establish a fundamental miscarriage of justice under Bousley.

Therefore, the ineffective assistance of counsel challenges are procedurally

defaulted and will not be addressed further by this court.

3. Constitutional Challenges

Petitioner sets forth the following five constitutional challenges in his

petition: (1) police officers did not follow proper knock and announce protocol; (2)

police officers did not have a warrant; (3) police officers unlawfully tried to gain

entry into his residence at 11:00 p.m.; (4) the court is in violation of several

constitutional rights; and (5) several of the responding officers were outside of

their jurisdiction. (Doc. 1, p. 8.) Petitioner alleges that he raised these issues in his

PCRA petition, but did not appeal them “[b]ecause my PCRA attorney abandoned

me and neglected to file any appeals.” (Id., p. 9.) Respondents assert that this

challenge has not been previously raised, resulting in it being waived. (Doc. 10, p.

7.)

After reviewing the state court filings, these issues were raised in the initial

pro se PCRA petition, but like the three ineffective assistance of trial counsel

claims addressed in the preceding section, these constitutional claims were

unaddressed following the appointment of counsel and the filing of the amended

petition. As set forth above, the proper route to exhaust these issues was to appeal

the PCRA court’s decision that failed to address them. Petitioner was represented

by counsel on appeal, and counsel filed an appeal to the Superior Court. However,

the appellate brief to the Superior Court did not address any of these constitutional

claims. Appellate Brief, Commonwealth v. Scholl, No. 357 MDA 2020, 2020 WL

7647007. Therefore, Petitioner failed to invoke “one complete round” of

Pennsylvania’s appellate review process. These issues were also raised in the two

subsequent pro se PCRA petitions, but both petitions were deemed untimely.

(Doc. 24-5, 24-7.) As such, the constitutional claims are procedurally defaulted.

Petitioner does not allege any “cause and prejudice” or “a fundamental

miscarriage of justice” to excuse his default of these claims as allowed in

McCandless. Therefore, these issues are procedurally defaulted and will not be

addressed further by the court.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final order

in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant

has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §

2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). “When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA 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). Here, jurists of reason would not find the procedural disposition of this

case debatable. Accordingly, no COA will be issued.

CONCLUSION

For the above stated reasons, the petition filed pursuant to Section 2254 will

be denied and the case will be closed.

An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: July 8, 2024