Arias v. Superintendent, SCI Fayette

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ADAMIS ARIAS, : Civil No. 3:21-cv-0978

:

Petitioner, :

:

v. : (Magistrate Judge Carlson)

:

SUPERINTENDENT, SCI :

FAYETTE, :

:

Respondent. :

MEMORANDUM OPINION

I. Introduction

The instant petition for writ of habeas corpus filed by the petitioner, Adamis

Arias, was reassigned to the undersigned on November 2, 2023. On August 15, 2014,

following a jury trial, Arias was convicted of third-degree murder in the February

23, 2013 shooting death of victim Angel Villalobos. At trial, the defendant asserted

various theories of defense including that he shot the victim in self-defense and that

the bullet that killed Villalobos could have ricocheted from his own gun.

Nonetheless, there was also evidence, including Arias’ own testimony and other

testimony, that he shot at the victim. And while Arias testified that the victim shot

first, another witness testified that Arias was the aggressor. Thus, as in many cases,

the jury was charged with deciding which version of events they believed and

whether the Commonwealth of Pennsylvania had met its burden of providing Arias’

guilt beyond a reasonable doubt, including whether the Commonwealth had met its

burden of disproving that Arias acted in self-defense.

Indeed, the jury found the Commonwealth had met this burden and found

Arias guilty to third-degree murder and the trial court sentenced him to a term of

twenty to forty years in prison. Arias now invites us to set aside this verdict asserting

that his trial counsel was ineffective and that he was deprived of his right to due

process at trial. Mainly, Arias challenges the jury instructions from his trial, alleging

that his trial counsel was ineffective for requesting only the “pattern” jury

instructions which failed to address various nuances of his case and overall were

insufficient. Some of these claims were raised in the Pennsylvania state court, which

found them to be meritless or not fully developed.

After our own independent review of the record, we find that Arias’ claims

are unexhausted, procedurally defaulted, or without merit. Accordingly, for the

reasons set forth below, this petition will be denied.

II. Statement of Facts and of the Case

The factual background of the instant petition, as presented at trial and

summarized in the parties’ briefs, can be stated as follows:1 On February 23, 2013,

1 The only summary of the case provided by the Pennsylvania Superior Court in

denying Arias’ direct appeal focuses on the testimony of Rafael Santana Nunez and

a witness, Ray Martinez, was at home watching television when he heard five or six

gun shots in front of his house. He looked out the window and saw a man lying on

the ground and called 911. Hazleton Police Department arrived at the scene and

found a Hispanic male, later identified as Angel Villalobos, lying on the ground

surrounded by a group of people and a number of shell casings. The victim had

sustained two gunshot wounds – one in the back and a fatal shot that entered his left

groin in the front and severed his left iliac artery. Villalobos was transported by

ambulance to Hazleton General Hospital but died as a result of his injuries.

The victim’s sister identified Arias as a potential suspect because she believed

he and the victim were having problems. Narcotics unit officers set up surveillance

based upon a ping from what was believed to be Arias’ cell phone and, on February

25, 2013, arrested him at his aunt’s house after he attempted to flee. Sgt. David

Bunchalk, who interviewed Arias after his arrest, testified that Arias admitted to

being on West Maple Street the night the victim was killed, that shots were fired,

and that he was “screwed because he was going to jail for life, and it was all over

Facebook that he had shot” the victim. Arias was charged with Criminal Homicide.

Dr. Gary Ross, the only two issues raised by Arias on direct appeal. Since more

factual development is needed to assess this petition, the factual background of this

Memorandum is taken from the party briefs including the petitioner’s memorandum,

the respondent’s response to the petition, and the petitioner’s traverse. (Docs. 1, 8,

11).

1. The Trial Testimony

Several witnesses testified at trial including Arias’ girlfriend, Allyssa

Guzman. Guzman testified that Arias picked her up around six or seven in the

evening and drove to the area of Maple Street in Hazleton, where the incident

occurred. She heard screaming, yelling, and shooting and then Arias returned to the

car, and they drove to New York. Arias was talking on the phone throughout the ride

in Spanish, which Guzman does not speak fluently. Guzman noticed shell casings in

Arias’ hand. They stayed in New York for a couple hours before driving back to

Hazleton and staying in an abandoned house. When Guzman learned on Facebook

that the victim had been shot, she asked Arias if he shot at the victim, and he

shrugged. After staying in the abandoned house one night, they went to Arias’ aunt’s

house where he was later arrested.

Another witness, a friend of the victim, Julio Quintana, testified that he saw

Arias on Maple Street the night of the shooting but had never seen him in the

neighborhood before. He heard someone ask, “Where’s my money?” and then he

saw a gun. He pushed the victim out of the way and ran down the alleyway then

heard multiple gunshots and returned to find the victim on the ground and another

victim, Rafael Santana-Nunez, holding his rear.

The other victim of the shooting, Rafael Santana-Nunez, also testified at trial,

forming one of the bases of the petitioner’s initial appeal. Initially, the trial court

determined that Santana-Nunez was unavailable as a witness and allowed the

preliminary hearing testimony to be read to the jury. The next day, however,

Santana-Nunez appeared in court to testify. As the Superior Court summarized:

At trial, Commonwealth witness Rafael Santana Nunez testified that on

February 23, 2013, he observed Arias, who was waiving [sic] a firearm,

confront the victim on West Maple Street and ask where his money

was. See N.T., Trial, 8/12/14 at 545-46. Nunez testified that he then

heard Arias fire his firearm at the victim, who was shot in the back. See

id. at 547-48. Nunez later identified Arias as the shooter from a police

lineup. See id. at 549.

(Doc. 8-1, at 308-9). Santana-Nunez was also wounded by a shot fired from the

victim, Villalobos, but testified that Arias shot first. Witness Robert Nunez also

heard someone, not the victim, say, “Where’s my money at?”

Two experts testified that at least one of the bullets taken from the victim’s

body could have been a ricochet due to some damage on the bullet, but one expert

testified that bone could cause mutilation, and both testified that no trace evidence

other than biological material was on the bullet. One expert testified that the bullets

found in the victim’s body and the shell casings found nearby were fired from

different weapons and that the shell casing were fired from an automatic weapon and

both the bullets taken from the victim’s body were fired from the same gun, possibly

a revolver.

Another expert, Dr. Gary Ross, testified regarding the autopsy of the victim.

As the Superior Court summarized:

Dr. Gary Ross, who conducted the autopsy on the victim, was qualified

as an expert in the field of forensic pathology. Dr. Ross testified that

the victim sustained two gunshot wounds. Dr. Ross opined that the first

bullet entered the victim’s back near his lower spine, and would have

caused the victim to fall to the ground. See id. at 493. Over defense

objection, Dr. Ross testified that the second bullet, which entered near

the victim’s pelvis, as fired while the victim was lying on his back. See

id. at 497-98; 501-02.

(Doc. 8-1, at 308-9).

Arias also testified in his own defense, stating that he arrived on Maple Street

to buy marijuana. He testified that it was Villalobos who confronted him stating

“what’s this shit you’re talking about that I owe you money?” to which he stated,

“yeah, where is that money you owe me?” Arias testified that Villalobos pulled a

.380 automatic, pointed it toward his penis and pulled the trigger but the gun misfired

and then jammed when he tried to fire again. Then Villalobos shot Santana-Nunez

while he was running away, and Arias pulled out his revolver and started shooting

and saw Villalobos fall. Arias testified that Villalobos kept shooting even after he

fell on his back.

2. The Jury Instructions

The bulk of the petitioner’s arguments center around the instructions provided to

the jury at trial. On this score, the trial court instructed the jury on how it should

consider Arias’ testimony:2

The defendant took the stand as a witness in this case. In considering

the defendant’s testimony, you’re to follow the general instructions I

gave you for judging the credibility of any witness. You should not

disbelieve the defendant’s testimony merely because he is the

defendant. In weighing his testimony, however, you may consider

the fact that he has a vital interest in the outcome of this trial. You

may take the defendant’s interest into account along with all other

facts and circumstances bearing on credibility in deciding what

weight his testimony deserves.

(Doc. 8-1, at 210) (emphasis added).

The trial court also provided instructions on how to consider the petitioner’s

claim of self-defense:

The defendant in this case has raised the issue of whether he acted in

self-defense when he discharged his firearm. Self-defense is called

justification in the law of Pennsylvania. If the defendant’s actions were

justified, you cannot find him guilty beyond a reasonable doubt. The

issue having been raised, it is the commonwealth’s burden to prove

beyond a reasonable doubt that the defendant did not act in self-defense.

If the Commonwealth proves to you beyond a reasonable doubt that the

defendant used deadly force, then to prove that such force was not

justifiable in this case it must prove one of the following elements

beyond a reasonable doubt: Firstly, that the defendant did not

reasonably believe that he was in immediate danger of death or serious

bodily injury from Angel Villalobos at the time he used the force and

that therefore his belief that it was necessary for him to use deadly force

to protect himself was unreasonable. Put another way, the

Commonwealth must prove either that the defendant did not actually

2 The petitioner refers to this instruction throughout as the “vital interest” instruction.

believe he was in danger of death or serious bodily injury such that he

needed to use deadly force to defend himself at that moment or that

while the defendant actually believed he needed to use such force his

belief was unreasonable in light of all the circumstances known to him.

Keep this in mind. A person is justified in using deadly force against

another not only when they are in actual danger of unlawful attack but

also when they mistakenly but reasonably believe that they are. A

person is entitled to estimate the necessity for the force he or she

employs under the circumstances as he or she reasonably believes them

to be at the time. In the heat of conflict, a person who has been attacked

ordinarily has neither time nor composure to evaluate carefully the

danger and make nice judgements about exactly how much force is

needed to protect himself. Consider the realities of the situation faced

by the defendant here when you assess whether the Commonwealth has

proved beyond a reasonable doubt either that he did not believe he was

actually in danger of death or serious bodily injury to the extent that he

needed to use such force in self- defense or that while he did believe

that his belief was unreasonable, or the Commonwealth must prove

beyond a reasonable doubt that in the same encounter with Angel

Villalobos the defendant engaged in conduct that demonstrated his

intent to cause death or serious bodily injury and by that conduct he

provoked the use of force against him. The conduct by the defendant

must be of such nature that it shows it was his conscious object to cause

death or serious bodily injury to the alleged victim, Angel Villalobos.

Conduct that is not of such a nature does not constitute the kind of

provocation upon which the Commonwealth may rely to prove its case.

If you find beyond a reasonable doubt that the Defendant’s acts were of

such a nature, you must then ask whether it provoked the similar use of

force against him. In this assessment, the conduct by the defendant may

be the initial provocation of the fight or it may be an act that continues

or escalates it. However, even if the defendant was the initial aggressor

or was the person who escalated the incident to one involving the use

of deadly force, if he thereafter withdraws in good faith making it clear

that his further intentions are peaceable and the alleged victim pursues

him and renews the fight, he does not forfeit his right to claim justifiable

self-defense. If, on the other hand, you find beyond a reasonable doubt

that the defendant provoked the use of force against him by engaging

in conduct that showed that he intended to cause death or serious bodily

injury to the alleged victim, you may find that his conduct was not

justified. Or, third, the Commonwealth may establish beyond a

reasonable doubt that the defendant knew that he could avoid the

necessity of using deadly force with complete safety by retreating but

that he failed to do so. If the Commonwealth proves one of these

elements beyond a reasonable doubt, the actions of the defendant in

using deadly force are not justified. If the Commonwealth fails to prove

these elements, the defendant’s action was justified and you must find

him not guilty of the crime.

(Id., at 212-13).

Finally, with regard to the malice element required to convict the petitioner of

third-degree murder, the trial court instructed the jury as follows:3

For murder of the third degree, a killing is with malice if the

perpetrator’s actions show his or her wanton and willful disregard of an

unjustified and extremely high risk that his or her conduct would result

in danger or serious bodily injury to another. In this form of malice, the

Commonwealth need not prove that the perpetrator specifically

intended to kill another. The commonwealth must prove, however, that

the perpetrator took action while consciously, that is, knowingly

disregarded the most serious risk he or she was creating and that by his

or her disregard of that risk the perpetrator demonstrated his or her

extreme indifference to the value of human life.

On the other hand, a killing is without malice if the perpetrator acts with

a lawful justification or excuse or under circumstances that reduce the

killing to voluntary manslaughter.

When deciding whether the defendant acted with malice, you should

consider all the evidence regarding his words, conduct, and the

attending circumstances that may show his state of mind. If you believe

that the defendant intentionally used a deadly weapon on a vital

part of Angel Villalobos’s body, you may regard that as an of

3 The petitioner refers to this instruction throughout as the “infer malice” instruction.

circumstantial evidence from which you may, if you choose, infer

that the defendant acted with malice.

(Id., at 215) (emphasis added).

3. The PCRA Petition.

Following the trial, a jury convicted Arias of third-degree murder and the trial

court sentenced him to a term of twenty to forty years in prison. Arias filed a motion

for reconsideration of sentence, which the trial court denied. Arias timely appealed

his conviction to the Pennsylvania Superior Court, alleging that the trial court erred

in allowing the Commonwealth to read into evidence the testimony of Rafael

Santana-Nunez from the Preliminary Hearing despite not establishing that the

witness was unavailable under Rule 804(a) and in allowing the testimony of Dr. Ross

as to the location of the shooter at the time the second bullet was fired because that

testimony was beyond the scope of his expertise as a physician. (Doc. 8-1, at 237-

270). The court affirmed Arias’ judgment of sentence on January 22, 2016. (Doc. 8-

1, at 313). The Pennsylvania Supreme Court denied the petition for allowance of

appeal on August 30, 2016. (Id., at 315).

Arias then filed a petition under Pennsylvania’s Post-Conviction Relief Act

(PCRA) on February 1, 2017. (Doc. 8-1, at 314-316). The PCRA petition alleged

claims of ineffective assistance of trial counsel and argued that the conviction was

obtained, and sentence imposed, in violation of the due process clause of the

Fourteenth Amendment. (Id., at 317-42). Specifically, the PCRA petition alleged

ineffective assistance of counsel due to trial counsel’s failure to object to and request

various jury instructions including a failure to request a Rivera4 instruction, failure

to object to an instruction that the jury could infer malice from the use of a deadly

weapon on a vital part of a the human body (“infer malice instruction”), and failure

to object to a “vital interest” instruction that the jury could consider the fact that the

defendant had a vital interest in the outcome of the trial in considering his testimony.

Arias also argued in his PCRA petition that trial counsel failed to investigate and

call witnesses.5 The PCRA petition argued that trial counsel’s failures, as a whole,

denied Arias a fair trial under the Fourteenth Amendment.

A PCRA hearing was held on September 28, 2017, at which trial counsel

testified. (Doc. 8-1, at 346-357). The PCRA court ultimately denied the petition. (Id.,

at 418-421, 428-442). Arias filed an appeal to the Superior Court which affirmed the

decision of the trial court, denying Arias’ relief. (Id., at 726-732). The Pennsylvania

4 Commonwealth v. Rivera, 603 PA 340, 983 A2d 1211, 1221 (PA 2009).

5 As the respondents point out, this issue was withdrawn at the PCRA hearing, but

ultimately renewed following the hearing when Arias filed a supplement to the

petition which included an affidavit from a purported potential witness, Jose Mejia,

that trial counsel allegedly failed to discover. (Doc. 8-1, at 403-409). The PCRA

court addressed this issue and the supplemental affidavit in its opinion denying the

petition, although Arias did not raise the issue on appeal.

Supreme Court denied Arias’ petition for Allowance of Appeal on August 3, 2020.

(Id., at 791).

Thereafter, Arias filed the instant habeas corpus petition on June 1, 2021.

(Doc. 1). His petition alleges violations of his Sixth and Fourteenth Amendment

rights.6 Broadly construed, and considering the claims and arguments together from

both the petition and the memorandum, the petitioner alleges trial counsel were

ineffective for inadequately investigating the case, and for a number of errors with

regard to the jury instructions including not objecting to the “infer malice”

instruction, not requesting a Rivera instruction, and for only requesting the “pattern”

jury instructions. The petition also alleges that the trial court erred in allowing Dr.

Ross to testify about the position of the shooter and that his due process rights were

violated by the jury instructions. The memorandum also argues that the evidence

was insufficient for a third-degree murder conviction. The petition is now fully

briefed and is ripe for resolution. (Docs. 1, 8, 11).

After review of the petition and the underlying state court record, we find that

Arias’ claims have been thoroughly considered by the state courts and denied on

their merits or are procedurally defaulted. Thus, given the deferential standard of

review that applies to habeas petitions like Arias’, we will deny his petition.

6 The petition itself raises more grounds for relief than are argued in the

memorandum accompanying the petition.

III. Discussion

A. State Prisoner Habeas Relief–The Legal Standard.

(1) Substantive Standards

In order to obtain federal habeas corpus relief, a state prisoner seeking to

invoke the power of this Court to issue a writ of habeas corpus must satisfy the

standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus on behalf

of 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.

(b) (1) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be granted

unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of

the State;

..........

(2) An application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.

28 U.S.C. § 2254(a) and (b).

As this statutory text implies, state prisoners must meet exacting substantive

and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a

petition must satisfy rigorous substantive standards to warrant relief. Federal courts

may “entertain an application for a writ of habeas corpus on behalf of 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). By limiting habeas relief to state conduct that violates “the

Constitution or laws or treaties of the United States,” § 2254 places a high threshold

on the courts. Typically, habeas relief will only be granted to state prisoners in those

instances where the conduct of state proceedings led to a “fundamental defect which

inherently results in a complete miscarriage of justice” or was completely

inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley,

512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will

not entitle a petitioner to § 2254 relief, absent a showing that those violations are so

great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394,

401–02 (3d Cir. 2004).

(2) Deference Owed to State Courts

These same principles which inform the standard of review in habeas petitions

and limit habeas relief to errors of a constitutional dimension also call upon federal

courts to give an appropriate degree of deference to the factual findings and legal

rulings made by the state courts in the course of state criminal proceedings. There

are two critical components to this deference mandated by 28 U.S.C. § 2254.

First, with respect to legal rulings by state courts, under § 2254(d), habeas

relief is not available to a petitioner for any claim that has been adjudicated on its

merits in the state courts unless it can be shown that the decision was either: (1)

“contrary to” or involved an unreasonable application of clearly established case

law; see 28 U.S.C. § 2254(d)(l); or (2) was “based upon an unreasonable

determination of the facts.” See 28 U.S.C. § 2254(d)(2). Applying this deferential

standard of review, federal courts frequently decline invitations by habeas

petitioners to substitute their legal judgments for the considered views of the state

trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338–39 (2006); see also

Warren v. Kyler, 422 F.3d 132, 139–40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d

222, 228 (3d Cir. 2002).

In addition, § 2254(e) provides that the determination of a factual issue by a

state court is presumed to be correct unless the petitioner can show by clear and

convincing evidence that this factual finding was erroneous. See 28 U.S.C. §

2254(e)(1). This presumption in favor of the correctness of state court factual

findings has been extended to a host of factual findings made in the course of

criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per

curiam); Demosthenes v. Baal, 495 U.S. 731, 734–35 (1990). This principle applies

to state court factual findings made both by the trial court and state appellate courts.

Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility

determinations made by the state courts, and we must give equal deference to both

the explicit and implicit factual findings made by the state courts. Weeks v. Snyder,

219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state

court judgment rests upon factual findings, it is well-settled that:

A state court decision based on a factual determination, ..., will not be

overturned on factual grounds unless it was objectively unreasonable in

light of the evidence presented in the state proceeding. Miller–El v.

Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003). We

must presume that the state court’s determination of factual issues was

correct, and the petitioner bears the burden of rebutting this

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);

Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000).

Rico v. Leftridge–Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of

review, federal courts may only grant habeas relief whenever “[o]ur reading of the

PCRA court records convinces us that the Superior Court made an unreasonable

finding of fact.” Rolan, 445 F.3d at 681.

(3) Ineffective Assistance of Counsel Claims

These general principles apply with particular force to habeas petitions that

are grounded in claims of ineffective assistance of counsel. It is undisputed that the

Sixth Amendment to the United States Constitution guarantees the right of every

criminal defendant to effective assistance of counsel. Under federal law, a collateral

attack of a sentence based upon a claim of ineffective assistance of counsel must

meet a two-part test established by the Supreme Court in order to survive.

Specifically, to prevail on a claim of ineffective assistance of counsel, a petitioner

must establish that: (1) the performance of counsel fell below an objective standard

of reasonableness; and (2) that, but for counsel’s errors, the result of the underlying

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-

88, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order

to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d

Cir. 2001).

At the outset, Strickland requires a petitioner to “establish first that counsel’s

performance was deficient.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This

threshold showing requires a petitioner to demonstrate that counsel made errors “so

serious” that counsel was not functioning as guaranteed under the Sixth Amendment.

Id. Additionally, the petitioner must demonstrate that counsel’s representation fell

below an objective standard of reasonableness under prevailing professional norms.

Id. However, in making this assessment “[t]here is a ‘strong presumption’ that

counsel’s performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d

1089, 1094 (3d Cir. 1996)).

But a mere showing of deficiencies by counsel is not sufficient to secure

habeas relief. Under the second Strickland prong, a petitioner also “must

demonstrate that he was prejudiced by counsel’s errors.” Id. This prejudice

requirement compels the petitioner to show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. A “reasonable probability” is defined as “a probability sufficient

to undermine confidence in the outcome.” Id.

Thus, as set forth in Strickland, a petitioner claiming that his criminal defense

counsel was constitutionally ineffective must show that his lawyer’s “representation

fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “A

fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005)

(quoting Strickland, 466 U.S. at 689). The petitioner must then prove prejudice

arising from counsel’s failings. “Furthermore, in considering whether a petitioner

suffered prejudice, ‘[t]he effect of counsel’s inadequate performance must be

evaluated in light of the totality of the evidence at trial: a verdict or conclusion only

weakly supported by the record is more likely to have been affected by errors than

one with overwhelming record support.’” Rolan, 445 F.3d at 682 (quoting

Strickland, 466 U.S. at 696) (internal quotations omitted).

Although sometimes couched in different language, the standard for

evaluating claims of ineffectiveness under Pennsylvania law is substantively

consistent with the standard set forth in Strickland. See Commonwealth v. Pierce,

527 A.2d 973, 976–77 (Pa.1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d

Cir. 2000) (“[A] state court decision that applied the Pennsylvania [ineffective

assistance of counsel] test did not apply a rule of law that contradicted Strickland

and thus was not ‘contrary to’ established Supreme Court precedent”). Accordingly,

a federal court reviewing a claim of ineffectiveness of counsel brought in a petition

under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show

that the state court’s adjudication of his claim was an “unreasonable application” of

Strickland. Billinger v. Cameron, 2010 WL 2632286, at *4 (W.D. Pa. May 13,

2010). In order to prevail against this standard, a petitioner must show that the state

court’s decision “cannot reasonably be justified under existing Supreme Court

precedent.” Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington

v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court’s application of federal

law is challenged, “the state court’s decision must be shown to be not only erroneous,

but objectively unreasonable”) (internal citations and quotations omitted).

This additional hurdle is added to the petitioner’s substantive burden under

Strickland. As the Supreme Court has observed a “doubly deferential judicial review

that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry,

540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly

deferential when it is conducted through the lens of federal habeas”). This doubly

deferential standard of review applies with particular force to strategic judgment like

those thrust upon counsel in the instant case. In this regard, the Court has held that:

“The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.” Id., at 688, 104

S. Ct. 2052. “Judicial scrutiny of counsel's performance must be highly

deferential,” and “a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance.” Id., at 689, 104 S. Ct. 2052. “[S]trategic choices made after

thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable.” Id., at 690, 104 S. Ct. 2052.

Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d

251 (2009). The deference which is owed to these strategic choices by trial counsel

is great.

Therefore, in evaluating the first prong of the Strickland test, courts

“must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial

strategy.’” Id. The presumption can be rebutted by showing “that the

conduct was not, in fact, part of a strategy or by showing that the

strategy employed was unsound.”

Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009) (quoting Thomas v. Varner, 428

F.3d 491, 499-500 (3d Cir. 2005)) (footnote omitted).

(4) Procedural Benchmarks – Statute of Limitations

Furthermore, state prisoners seeking relief under Section 2254 must also

satisfy specific, and precise, procedural standards. Among these procedural

prerequisites is a requirement that petitioners timely file motions seeking habeas

corpus relief. The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244, established a one-year statute of limitations on the

filing of habeas petitions by state prisoners. In pertinent part, § 2244(d)(1) provides

as follows:

A 1-year period of limitation shall apply to an application for a writ of

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

State court. The limitation period shall run from the latest of-

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

direct review or the expiration of the time for seeking such review;

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

by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by

such State action;

(C) the date on which the constitutional right asserted was initially

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

recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or,

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

presented could have been discovered through the exercise of due

diligence.

See Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 617 (3d Cir. 1998).

The calculation of this limitations period is governed by a series of well-

defined rules. At the outset, these rules are prescribed by statute. Specifically, 28

U.S.C. § 2244(d) prescribes several forms of statutory tolling. First, with respect to

tolling based upon a petitioner's direct appeal of his conviction: “The limitation

period shall run from the latest of- (A) the date on which the judgment became final

by the conclusion of direct review or the expiration of the time for seeking such

review.” 28 U.S.C. § 2244(d)(1)(A). The courts have construed this tolling provision

in a forgiving fashion, and in a manner that enables petitioners to toll their filing

deadlines for the time periods in which they could have sought further direct

appellate review of their cases, even if they did not, in fact, elect to seek such review.

Thus, with respect to direct appeals, the statute of limitations is tolled during the

period in which a petitioner could have sought discretionary appellate court review,

by way of allocator or through a petition for writ of certiorari, even if no such petition

is filed. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). After this period of time

passes, however, by statute the judgment of conviction becomes final. 28 U.S.C. §

2244(d)(1)(A).

Section 2244(d)(2), in turn, prescribes a second period of statutory tolling

requirements while state prisoners seek collateral review of these convictions in state

court, and provides that:

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

conviction or other collateral review with respect to the pertinent

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

limitation under this subsection.

See Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000).

In assessing § 2244(d)(2)'s tolling provision, for purposes of tolling the federal

habeas statute of limitations, a “properly filed application for State post-conviction

or other collateral review” only includes applications which are filed in a timely

fashion under state law. Therefore, if the petitioner is delinquent in seeking state

collateral review of his conviction, that tardy state pleading will not be considered a

“properly filed application for State post-conviction or other collateral review” and

will not toll the limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 412-14

(2005); Long v. Wilson, 393 F.3d 390, 394-95 (3d. Cir. 2004). Moreover, in contrast

to the direct appeal tolling provisions, this post-conviction petition tolling provision

does not allow for an additional period of tolling for the petitioner who does not seek

further discretionary appellate court review of his conviction and sentence. Miller v.

Dragovich, 311 F.3d 574, 578 (3d Cir. 2002).

Beyond this tolling period mandated by statute, it has also been held that

AEDPA's one-year limitations period is not a jurisdictional bar to the filing of habeas

petitions, Miller, 145 F.3d at 617-18, and, therefore, is subject to equitable tolling.

Id. at 618-19. Yet, while equitable tolling is permitted in state habeas petitions under

AEDPA, it is not favored. As the Third Circuit has observed: “[E]quitable tolling is

proper only when the ‘principles of equity would make [the] rigid application [of a

limitation period] unfair.’ Generally, this will occur when the petitioner has ‘in some

extraordinary way ... been prevented from asserting his or her rights’ The petitioner

must show that he or she ‘exercised reasonable diligence in investigating and

bringing [the] claims’ Mere excusable neglect is not sufficient.” Id. at 618-19

(citations omitted). Indeed, it has been held that only:

[T]hree circumstances permit[ ] equitable tolling: if

(1) the defendant has actively misled the plaintiff,

(2) if the plaintiff has in some extraordinary way been prevented from

asserting his rights, or

(3) if the plaintiff has timely asserted his rights mistakenly in the wrong

forum.

Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (quoting Jones v. Morton, 195 F.3d

153, 159 (3d Cir. 1999) (citations omitted)).

Applying this exacting standard, courts have held that: “In non-capital cases,

attorney error, miscalculation, inadequate research, or other mistakes have not been

found to rise to the ‘extraordinary’ circumstances required for equitable tolling. See

Freeman v. Page, 208 F.3d 572 (7th Cir. 2000) (finding no basis for equitable tolling

where the statute of limitations was changed to shorten the time for filing a PCRA

only four months prior to the filing of the petition); Taliani v. Chrans, 189 F.3d 597

(7th Cir. 1999) (finding lawyer's inadequate research, which led to miscalculating

the deadline, did not warrant equitable tolling).” Id. While courts apply exacting

standards to equitable tolling claims, it is evident that complete abandonment of a

petitioner by his counsel can constitute one of the extraordinary circumstances

justifying such equitable tolling. In Holland v. Florida, 560 U.S. 631 (2010), the

Supreme Court of the United States held that equitable tolling applies to § 2244(d).

Id., at 645. Further, the Court in Holland held that an attorney's actions or inactions,

if egregious enough, can constitute an “extraordinary circumstance” that justifies

equitable tolling of a habeas petition. Id., at 651-52; see also Ross v. Varano, 712

F.3d 784 (3d Cir. 2013) (upholding a district court's determination of equitable

tolling based on attorney misconduct).

(5) Procedural Benchmarks – Exhaustion and Procedural Default

a. Exhaustion of State Remedies

State prisoners seeking relief under section 2254 must also satisfy specific,

additional procedural standards. Among these procedural prerequisites is a

requirement that the petitioner “has exhausted the remedies available in the courts

of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). In instances

where a state prisoner has failed to exhaust the legal remedies available to him in the

state courts, federal courts typically will refuse to entertain a petition for habeas

corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).

This statutory exhaustion requirement is rooted in principles of comity and

reflects the fundamental idea that the state should be given the initial opportunity to

pass upon and correct alleged violations of the petitioner’s constitutional rights.

O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The Supreme Court has explained

that “a rigorously enforced total exhaustion rule” is necessary in our dual system of

government to prevent a federal district court from upsetting a state court decision

without first providing the state courts the opportunity to correct a constitutional

violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring exhaustion of claims

in state court also promotes the important goal of ensuring that a complete factual

record is created to aid a federal court in its review of § 2254 petitions. Walker v.

Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking to invoke the writ of

habeas corpus, therefore, bears the burden of showing that all of the claims alleged

have been “fairly presented” to the state courts, and the claims brought in federal

court must be the “substantial equivalent” of those presented to the state courts.

Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v.

Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot avoid this

responsibility merely by suggesting that he is unlikely to succeed in obtaining state

relief, since it is well-settled that a claim of “likely futility on the merits does not

excuse failure to exhaust a claim in state court.” Parker v. Kelchner, 429 F.3d 58,

63 (3d Cir. 2005).

Although this exhaustion requirement compels petitioners to have previously

given the state courts a fair “opportunity to apply controlling legal principles to the

facts bearing upon [the petitioner’s] constitutional claim,” Picard v. Connor, 404

U.S. 270, 276 (1971), this requirement is to be applied in a commonsense fashion.

Thus, the exhaustion requirement is met when a petitioner submits the gist of his

federal complaint to the state courts for consideration, without the necessity that the

petitioner engage in some “talismanic” recitation of specific constitutional clams.

Evans, 959 F.2d at 1230-33. Similarly, a petitioner meets his obligation by fairly

presenting a claim to state courts, even if the state courts decline to address that

claim. Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam); Johnson v. Pinchak, 392

F.3d 551, 556 (3d Cir. 2004).

b. Procedural Default

A necessary corollary of this exhaustion requirement is the procedural default

doctrine, which applies in habeas corpus cases. Certain habeas claims, while not

exhausted in state court, may also be incapable of exhaustion in the state legal system

by the time a petitioner files a federal habeas petition because state procedural rules

bar further review of the claim. In such instances:

In order for a claim to be exhausted, it must be “fairly presented” to the

state courts “by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 844-

45, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999). If a claim has not been fairly

presented to the state courts and it is still possible for the claim to be

raised in the state courts, the claim is unexhausted . . . .

If a claim has not been fairly presented to the state courts but state law

clearly forecloses review, exhaustion is excused, but the doctrine of

procedural default may come into play. A procedural default occurs

when a prisoner’s federal claim is barred from consideration in the state

courts by an “independent and adequate” state procedural rule. Federal

courts may not consider the merits of a procedurally defaulted claim

unless the default and actual “prejudice” as a result of the alleged

violation of the federal law or unless the applicant demonstrates that

failure to consider the claim will result in a fundamental “miscarriage

of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546,

115 L.Ed.2d 640 (1991).

Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002).

“[A] federal court will ordinarily not entertain a procedurally defaulted

constitutional claim in a petition for habeas corpus ‘[o]ut of respect for finality,

comity, and the orderly administration of justice.’ This is a reflection of the rule that

‘federal courts will not disturb state court judgments based on adequate and

independent state law procedural ground.’” Hubbard v. Pinchak, 378 F.3d 333, 338

(3d Cir. 2004) (citations omitted). Given these concerns of comity, the exceptions

to the procedural default rule, while well-recognized, are narrowly defined. Thus,

for purposes of excusing a procedural default of a state prisoner seeking federal

habeas relief, “[t]he Supreme Court has delineated what constitutes ‘cause’ for the

procedural default: the petitioner must ‘show that some objective factor external to

the defense impeded counsel’s efforts to comply with the State’s procedural rule.’”

Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (citations omitted). Similarly,

when examining the second component of this “cause and prejudice” exception to

the procedural default rule, it is clear that:

With regard to the prejudice requirement, the habeas petitioner must

prove “‘not merely that the errors at … trial created the possibility of

prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional

dimensions.’” This standard essentially requires the petitioner to show

he was denied “fundamental fairness” at trial. In the context of an

ineffective assistance claim, we have stated that prejudice occurs where

“there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different.”

Id. at 193 (citations omitted).

Likewise, the “miscarriage of justice” exception to this procedural bar rule is

also narrowly tailored and requires a credible assertion of actual innocence to justify

a petitioner’s failure to comply with state procedural rules. Hubbard, 378 F.3d at

338.

Procedural bar claims typically arise in one of two factual contexts. First, in

many instances, the procedural bar doctrine is asserted because an express state court

ruling in prior litigation denying consideration of a habeas petitioner’s state claims

on some state procedural ground. In such a situation, courts have held that:

A habeas claim has been procedurally defaulted when “a state court

declined to address a prisoner’s federal claims because the prisoner had

failed to meet a state procedural requirement.” Coleman v. Thompson,

501 U.S. 722, 730, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1991). For a

federal habeas claim to be barred by procedural default, however, the

state rule must have been announced prior to its application in the

petitioner’s case and must have been “firmly established and regularly

followed.” Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 112

L.Ed.2d 935 (1991). Whether the rule was firmly established and

regularly followed is determined as of the date the default occurred, not

the date the state court relied on it, Doctor v. Walters, 96 F.3d 675, 684

(3d Cir. 1996), because a petitioner is entitled to notice of how to

present a claim in state court.

Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007) (citing Ford, 498 U.S. at 423-

24).

In other instances, the procedural default arises, not because of an express

state court ruling, but as a consequence of a tactical choice by a habeas petitioner,

who elects to waive or forego a claim in the course of his state proceedings, and thus

fails to fully exhaust the claim within the time limits prescribed by state statute or

procedural rules. In such instances the petitioner’s tactical choices in state court

litigation also yield procedural defaults and waivers of claims federally. See, e.g.,

Johnson v. Pinchak, 392 F.3d 551 (3d Cir. 2004) (procedural default where petitioner

failed to timely pursue state claim); Hull v. Freeman, 991 F.2d 86 (3d Cir. 1993)

(same). Accordingly, a petitioner’s strategic choices in state court waiving or

abandoning state claims may act as a procedural bar to federal consideration of his

claims, unless the petitioner can show either “cause and prejudice” or demonstrate a

“fundamental miscarriage of justice.”

It is against these legal benchmarks that we assess Arias’ petition.

B. This Petition Should Be Denied.

In his petition and accompanying memorandum the petitioner argues the

evidence was insufficient to sustain the trial verdict, along with four separate errors

of his trial counsel which he claims amounted to ineffective assistance, as well as

two due process claims alleging he was deprived of due process because the jury

instructions were not tailored to the facts of the case and denied due process when

the medical examiner to testify about the location of the shooter. Although the parties

concede his petition was timely filed, all but three of his claims are either wholly

unexhausted or procedurally defaulted and do not fall within any of the exceptions

articulated by the petitioner. Moreover, each of his claims fails on the merits.

Accordingly, given the deference that must be afforded to the state courts’ findings,

we conclude that this petition should be denied.

1. Most of Arias’ Claims are Unexhausted or Procedurally Defaulted.

Federal courts typically require a full and complete round of appeals before a

claim is deemed exhausted. See O’Sullivan, 526 U.S. at 844-45 (1999) (finding that

a petitioner properly exhausts claims in state court “by invoking one complete round

of the State’s established appellate review process”); Lines v. Larkin, 208 F.3d 153,

160 (3d Cir. 2000) (“Petitioners who have not fairly presented their claims to the

highest state court have failed to exhaust those claims”); Evans, 959 F.2d at 1230

(“A claim must be presented not only to the trial court but also the state’s

intermediate court as well as to its supreme court”); Blasi v. Atty. Gen. of Pa., 30

F.Supp.2d 481, 486 (M.D. Pa. 1998) (“The exhaustion doctrine requires the

defendant to present the issue to any intermediate state appellate court, if applicable,

and to the state’s supreme court”). On this score, Arias has raised several different

iterations of substantive errors and constitutional violations at different stages in his

appeals process, only a few of which have remained through the requisite

proceedings to be considered exhausted by the state court. In fact, Arias’ brief in

support of his petition contained a different set of complaints than the habeas petition

itself. Thus, throughout these proceedings there has been a kaleidoscopic quality to

Arias’ claims which shift, change, and transmogrify over time.

Nonetheless, we view the series of claims he presents in his most recent

habeas brief liberally, not employing an exacting standard in ensuring his claims

have been exhausted word-for-word, but rather viewing his claims holistically to

determine whether the claims he brings in federal court are the “substantial

equivalent” of those presented to the state courts. See Evans v. Court of Common

Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74

(3d Cir. 1982). Even so, although the petitioner baldly denies that any of his issues

have not been fairly presented to the court system, his response does not demonstrate

that these claims have been exhausted but rather cites legal precedent which provides

various avenues by which a procedural default may be excused without applying this

law to the facts of this case.

At the outset, three of Arias’ claims were reviewed by the state court but found

to be waived. Since the state court did not address the merits of these arguments, the

respondent argues that the following three claims, though raised at the state court

level,7 are procedurally defaulted: his due process claim for inadequate instructions,

and his ineffective assistance of counsel claims for not asking for a Rivera instruction

and for requesting “pattern” jury instructions. With regard to these arguments, the

Superior Court explained:

We will consider Arias’s second and third claims together. In his

second claim, Arias alleges that his trial counsel rendered ineffective

assistance by failing to request a jury instruction. See Brief for

Appellant at 22-27. Arias argues that the jury should have been

instructed that the Commonwealth could not sustain its burden of proof

solely on the fact-finder’s disbelief of Arias’s testimony. Id.

In his third claim, Arias alleges that trial counsel was ineffective by

requesting “pattern jury instructions.”2 See id. at 27-34. Arias argues

that the facts of his case were too complicated for pattern jury

instructions to adequately inform the jury of the law that applied to his

case. Id.

In both his second and third [ineffective assistance of counsel] claims,

Arias fails to develop all three prongs of the ineffectiveness test. In his

second claim, Arias provides discussion of why his claims have merit,

but fails to develop the remaining two prongs of the ineffectiveness test.

In his third claim, Arias cites to general legal authority regarding jury

instructions, but fails to cite to any pertinent legal authority regarding

his particular claim, or provide any discussion of why trial counsel’s

actions lacked any reasonable basis. Because Arias failed to properly

develop these issues for our review, they are waived. See

Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (stating that

an “appellant’s failure to develop any argument at all concerning the

7 The respondents also argue that at least two of these claims are not exhausted, but

since the Superior Court addressed each, we will address only the procedural default

argument.

second and third prongs of the ineffectiveness test … results in waiver

of” the claim); see also Martin, supra.

In his fourth claim, Arias alleges that the trial court failed to give

adequate jury instructions, in violation of his right to due process under

the Fourteenth Amendment to the United States Constitution. See Brief

for Appellant at 34-37. Arias argues that the jury instructions were not

tailored to the facts of his case, and failed to accurately and sufficiently

state the law regarding self-defense. Id.

Here, Arias fails to provide pertinent argument as to why the jury

instructions used in his case were deficient, and to reference relevant

legal authority in support. “[W]here an appellate brief fails to provide

any discussion of a claim with citation to relevant authority or fails to

develop the issue in any other meaningful fashion capable of review,

that claim is waived.” Commonwealth v. Johnson, 985 A.2d 915, 924

(Pa. 2009). It is not the role of this Court to “formulate [an a]ppellant’s

arguments for him.” Id. at 25. Accordingly, Arias’s fourth claim is

waived. See id., supra.

(Doc. 8-1, at 732-34). Thus, in reviewing these arguments in Arias’ PCRA petition,

the Pennsylvania Superior Court found that he had failed to develop his claims in a

way that the court could meaningfully review.

On this score, the Third Circuit has held that claims deemed to be waived by

the state court due to a failure to be meaningfully developed are procedurally

defaulted. As the court of appeals explained:

A state procedural rule is “independent” if it is separate from the federal

issue. Here, it is beyond dispute that the Superior Court's determination

that Petitioner had waived his claims was pursuant to state law, and was

separate from the federal issues before it. See Cabrera v. Barbo, 175

F.3d 307, 313 (3d Cir.1999) (“[T]he basis for the state court's rejection

of the ineffective assistance of counsel claims was state court

procedural default ... Clearly, this disposition was an independent state

ground.”). Moreover, a state procedural rule is adequate if it was

“firmly established and regularly followed” at the time of the alleged

procedural default. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850,

112 L.Ed.2d 935 (1991). To be considered firmly established and

regularly followed, “(1) the state procedural rule [must] speak[ ] in

unmistakable terms; (2) all state appellate courts [must have] refused to

review the petitioner's claims on the merits; and (3) the state courts'

refusal in this instance [must be] consistent with other decisions.” Nara

v. Frank, 488 F.3d 187, 199 (3d Cir.2007). This test is met here.

The requirement that Petitioner must meaningfully develop his

arguments on appeal and cite to appropriate authorities has been stated

in unmistakable terms by the Pennsylvania Supreme Court, see

Commonwealth v. Clayton, 572 Pa. 395, 816 A.2d 217, 221 (2002)

(“[I]t is a well settled principle of appellate jurisprudence that

undeveloped claims are waived and unreviewable on appeal”), and is

embodied in the state's rules of appellate procedure, see Pa. R.A.P.

2119(a). Moreover, the Superior Court refused to consider Petitioner's

claims on the merits and its refusal is consistent with other decisions.

See Bracey, 795 A.2d at 940 n. 4, Clayton, 816 A.2d at 221. We

conclude that the Superior Court's decision was based upon an

independent and adequate state law ground. See Nara, 488 F.3d at 199.

Moreover, “ ‘federal habeas corpus relief does not lie for errors of state

law.’ ” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d

385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct.

3092, 111 L.Ed.2d 606 (1990)). This remains true even if the state

procedural ruling is incorrect. Estelle, 502 U.S. at 71–72, 112 S.Ct. 475;

see also Kontakis v. Beyer, 19 F.3d 110, 117 n. 12 (3d Cir.1994)

(reminding that “a state court's misapplication of its own law does not

generally raise a constitutional claim.”) (citation omitted). Thus, even

if the Superior Court incorrectly deemed waived certain of Petitioner's

ineffective assistance claims—a point Petitioner does not argue here—

habeas relief would not be warranted, as it is “well established that a

state court's misapplication of its own law does not generally raise a

constitutional claim. The federal courts have no supervisory authority

over state judicial proceedings and may intervene only to correct

wrongs of constitutional dimension.” Taylor v. Horn, 504 F.3d 416, 448

(3d Cir.2007); see also id. (quoting Estelle v. McGuire, 502 U.S. 62,

67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)) (“Even assuming the

state court failed to follow the law of Pennsylvania, in this federal

habeas case, we are limited to deciding whether [the petitioner's]

conviction and sentence ‘violated the Constitution, laws, or treaties of

the United States.’ ”).

Leake v. Dillman, 594 F. App'x 756, 758–59 (3d Cir. 2014). In this parallel factual

scenario, where the Pennsylvania Superior Court found Arias failed to develop these

three claims for meaningful review, this Third Circuit precedent clearly bars Arias

from seeking habeas relief on these three procedurally defaulted claims.8

As to his claim that the evidence was insufficient for a conviction, this claim

is clearly unexhausted since it was never raised in any state court. The respondent

argues that trial counsel was ineffective for not raising this claim on direct appeal,

but this does not explain the failure of counsel to raise this issue in the PCRA

petition. To the extent that the petitioner argues the ineffectiveness of PCRA counsel

to overcome the procedural default of his claims, we note that the same counsel

represented Arias in his PCRA proceedings and the instant proceedings. Moreover,

as a general rule, Section 2254 states that “[t]he ineffectiveness or incompetence of

8 The respondents also argue that Arias’ ineffective assistance of counsel claim due

to inadequate investigation has not been exhausted since it was withdrawn at the

PCRA hearing. (Doc. 8, at 13). Although the plaintiff’s counsel did state at the

PCRA hearing that she was withdrawing that claim, she later submitted a supplement

to the PCRA petition and affidavit renewing the issue. Its substance was addressed

by the state court, but Arias did not fully exhaust his appeals on the issue.

Nonetheless, since the state court did address this issue, and construing this petition

liberally, we will address this issue on the merits.

counsel during Federal or State collateral post-conviction proceedings shall not be a

ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i).

Further, the Supreme Court has stated that “[t]here is no constitutional right to an

attorney in state post-conviction proceedings,” and consequently “a petitioner cannot

claim constitutionally ineffective assistance of counsel in such proceedings.”

Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citing Pennsylvania v. Finley,

481 U.S. 551 (1987) and Wainwright v. Torna, 455 U.S. 586 (1982)); see also

Holman v. Gillis, 58 F. Supp. 2d 587, 597 (E.D. Pa. 1999) (stating that “a claim of

ineffective assistance of PCRA counsel is not cognizable in a federal habeas corpus

petition because the right to effective assistance of PCRA counsel exists pursuant to

state law, and is not mandated by the Constitution or laws or treaties of the United

States”).

The petitioner advances several arguments for why this Court should excuse

these procedural defaults and review these claims. To the extent that Arias invokes

Martinez to excuse these unexhausted and procedurally defaulted claims, the

Supreme Court in Martinez held:

Where, under state law, claims of ineffective assistance of trial

counsel must be raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from hearing

a substantial claim of ineffective assistance at trial if, in the initial-

review collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.

Martinez, 566 U.S. at 17.

The Martinez exception is narrow in that it provides a petitioner with a method

to establish “cause” for a procedural default on some legal claim. Id. It does not,

however, allow a petitioner to rely on the ineffectiveness of post-conviction counsel

as a ground for relief, as that is precluded by § 2254(i). Id. Thus, to the extent that

the petitioner seeks relief on the ground that his PCRA counsel was ineffective, such

relief should be denied.

To the extent the petitioner seeks to use PCRA counsel's alleged

ineffectiveness as “cause” to excuse any procedural default of his unexhausted

constitutional claims, under Martinez, the failure to raise a claim in a PCRA petition

is excused only if counsel rendered ineffective assistance in developing, or failing

to develop, the claim. Martinez, 566 U.S. at 21-22. Additionally, the claim of

ineffective assistance of trial counsel that was not raised must be a substantial one—

that is, it must have some merit. Id. at 14. This is a very high standard, as counsel is

“strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 134

S. Ct. 10, 17 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)).

Here, the petitioner’s reliance on Martinez to excuse his procedural defaults

fails. In fact, this argument is almost entirely undeveloped. Arias provides no factual

support for this argument beyond simply invoking Martinez as a doctrine which

could excuse a procedurally defaulted or unexhausted claim. And, more importantly,

as discussed below, his unexhausted and procedurally defaulted claims are meritless

and, therefore, not substantial.

Nor can these claims be saved by Arias’ assertion of actual innocence, an even

narrower exception to the procedural bars which constrain this Court from reviewing

many of his claims. The Supreme Court has explained that “[a]ctual innocence, if

proved, serves as a gateway through which a petitioner may pass whether the

impediment is a procedural bar . . . or expiration of the statute of limitations.”

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). However, this exception is also

quite narrow. Id. (“We caution, however, that tenable actual-innocence gateway

pleas are rare[.]”).

In McQuiggin the Supreme Court relied on its prior decision in Schlup v.

Delo, 513 U.S. 298 (1995), where the Court held that “a petitioner does not meet the

threshold requirement [of showing actual innocence] unless he persuades the district

court that, in light of the new evidence, no juror, acting reasonably, would have voted

to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 329; see also

McQuiggin, 569 U.S. at 386; House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing

that the Schlup standard is “demanding” and rarely satisfied). The timing of the

petition is also a relevant factor that bears on the reliability of the evidence that a

petitioner offers to demonstrate actual innocence. McQuiggin, 133 S. Ct. at 1928.

“To be credible, [an actual innocence] claim requires petitioner to support his

allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. Stated somewhat

differently, the petitioner must “present[ ] evidence of innocence so strong that a

court cannot have confidence in the outcome of the trial.” Id. at 316. But where the

new evidence raises “sufficient doubt about [the petitioner's] guilt to undermine

confidence in the result of the trial without the assurance that trial was untainted by

constitutional error,” then the new evidence meets the “threshold showing of

innocence [to] justify a review of the merits of the constitutional claims.” Id. at 317.

In analyzing a petitioner's actual-innocence claim based on new evidence, “the

habeas court must consider ‘all the evidence,’ old and new, incriminating, and

exculpatory, without regard to whether it would necessarily be admitted under ‘rules

of admissibility that would govern at trial.’” House, 547 U.S. at 537-38.

Accordingly, “[t]he court's function is not to make an independent factual

determination about what likely occurred, but rather to assess the likely impact of

the evidence on reasonable jurors.” Id. At the same time, “it bears repeating that the

Schlup standard is demanding and permits review only in the ‘extraordinary’ case.”

Id. at 538. A court is not compelled to hold an evidentiary hearing where, after

“assess[ing] the probative force of the newly presented evidence in connection with

the evidence of guilt adduced at trial,” the court finds that no reasonable juror would

have acquitted the petitioner in the light of the new evidence presented. Schlup, 513

U.S. at 331-32; Houck v. Stickman, 625 F.3d 88, 95 (3d Cir. 2010).

In a case out of the Eastern District of Pennsylvania that involved a similar

analysis to that required in this case, Judge Slomsky summarized the court's

evaluation of the sufficiency of a petitioner's showing under Schlup as follows:

In order to determine whether a habeas petitioner's claim of actual

innocence may act as a procedural gateway under Schlup, a federal

court must consider the following: “[1] whether [the petitioner] has

presented ‘new reliable evidence ... [that was] not presented at trial,’

and, if so, [2] whether it is more likely than not that no reasonable juror

would have convicted him in light of the new evidence.” Hubbard v.

Pinchak, 378 F.3d 333, 340 (3d Cir. 2004). For purposes of satisfying

the first inquiry, “evidence is only new if it was not available at trial

and could not have been discovered earlier through the exercise of due

diligence.” Houck v. Stickman, 625 F.3d 88, 93-94 (3d Cir. 2010)

(quoting Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997)).

See also Hubbard, 378 F.3d at 340 (“A defendant's own late-proffered

testimony is not ‘new’ because it was available at trial. [The defendant]

merely chose not to present it to the jury. That choice does not open the

gateway.”). Once the court determines that a habeas petitioner has

presented new reliable evidence, the court must then “assess the likely

impact of [that] evidence on reasonable jurors.” House, 547 U.S. at 538.

Pirela v. District Attorney of Phila., Civ. A. No. 00-5331, 2014 U.S. Dist. LEXIS

67947, *18-19, 2014 WL 2011536, *6 (E.D. Pa. May 16, 2014). Thus, a court must

first determine that a petitioner has actually presented new evidence that meets this

standard before the court considers its likely impact on a jury.

In this case, Arias has not presented newly discovered evidence that could

meet the rigorous standard of Schlup and the Supreme Court and Third Circuit's

jurisprudence governing gateway claims of actual innocence. In fact, Arias has not

presented any new evidence at all; his reply brief properly instructs us on the law of

actual innocence but stops short of applying this law to any facts of this case. Even

incorporating the factual averments from the entirety of his petition and supporting

briefs, Arias has merely reiterated the facts presented at trial that he argues would

not have permitted any reasonable juror to vote to convict him. This falls well short

of what is required to get past the gateway, and to excuse the procedural defaults of

many of these claims.

2. Arias’ Sufficiency of the Evidence Claim Fails.

Not only do we find many of Arias’ claims wholly unexhausted, but his claims

also fail as a matter of substance. At the outset, Arias faces an exacting burden of

proof in advancing a claim that the evidence was insufficient to sustain the verdict

of third-degree murder. As we have observed:

In Jackson v. Virginia, the United States Supreme Court held that “in a

challenge to a state criminal conviction brought under 28 U.S.C. § 2254

. . . the applicant is entitled to habeas corpus relief if it is found that

upon the record evidence adduced at trial no rational trier of fact could

have found proof of guilt beyond a reasonable doubt.” 443 U.S. 307,

324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . Moreover, the rule

announced in Jackson “requires a reviewing court to review the

evidence ‘in the light most favorable to the prosecution.’ ” Id. (quoting

Jackson, 443 U.S. at 319, 99 S.Ct. 2781). What this means is that a

reviewing court “faced with a record of historical facts that supports

conflicting inferences must presume – even if it does not affirmatively

appear in the record – that the trier of fact resolved any such conflicts

in favor of the prosecution, and must defer to that resolution.” Id., at

133, 130 S.Ct. 665 (quoting Jackson, 443 U.S. at 326, 99 S.Ct. 2781).

Hawk v. Overmyer, No. 3:16-CV-135, 2019 WL 1187356, at *5 (M.D. Pa. Jan. 17,

2019), report and recommendation adopted sub nom. Hawk v. Overmeyer, No. 3:16-

CV-135, 2019 WL 1163830 (M.D. Pa. Mar. 13, 2019). Judged by this deferential

standard, we conclude, that there was ample evidence to convict Arias. Indeed, Arias

himself testified that he fired shots from his revolver at the victim and an expert

testified that the bullets found in Villalobos’ body, including the bullet which

severed his iliac artery, killing him, were fired from the same gun, possibly a

revolver. (Doc. 8-1, at 118, 121). Moreover, to the extent that he argues the

Commonwealth failed to disprove his claim of self-defense, at least one witness

testified that Arias shot first and no witness corroborated the testimony of Arias that

Villalobos was the aggressor. Furthermore, Arias’ admissions at the time of his arrest

and statements at the time of the killing notably lack any timely claim of self-

defense. Instead, these contemporaneous statements suggest a shooting of the victim

by Arias over a drug debt. Further, and significantly, Dr. Ross’ testimony that

Villalobos was first shot in the back before Arias administered the fatal wound to

his groin is inconsistent with a claim of self-defense since the first wound to

Villalobos’ back suggests that the victim has turned away from Arias when he was

shot. A jury was justified in concluding that the victim presented no immediate threat

to Arias if he had turned away from his slayer. Simply put, while Arias may not wish

it to be so, this body of evidence and the witness who testified he shot first was

believed by the jury that convicted him. It was the right and province of the jury to

make this credibility determination and Arias may not now ask us to set aside this

factual finding.

3. Arias’ Ineffective Assistance of Counsel Claims are Without Merit.

The bulk of Arias’ petition centers around alleged failures of trial counsel

which he contends violated his right to counsel under the Sixth Amendment. Three

of his four ineffective assistance of counsel claims relate to the jury instructions.

However, in his petition, Arias also raises the additional ground that trial counsel

was deficient for failing to investigate beyond a cursory review of the prosecutor’s

file. This claim is not explained in the supporting memorandum, but Arias cites the

following supporting facts in his petition:

Trial counsel would have discovered evidence that would have

supported the justification defense. For example, if trial counsel had

conducted an investigation, they would have discovered substantial

evidence indicating the bullets that killed the “victim” were fired from

the victim’s own gun. They would have discovered witnesses who

actually saw the shooting, and would have been able to rebut the

witnesses who heard the shooting. They would have discovered the

victim’s criminal record, and would have been able to establish that the

petitioner was afraid of the victim, and had good reason to be afraid of

him.

(Doc. 1, at 5).

At the outset, we struggle to find this claim, which was raised in the PCRA

petition, then withdrawn at the PCRA hearing, then raised again as a supplement to

the PCRA petition, then seemingly withdrawn again on PCRA appeal, has been fully

exhausted. Moreover, this issue, while worded similarly at each stage where it was

raised, has born different factual iterations throughout the process. For example, the

PCRA petition relied on the affidavit of Katherine Zapata, who Arias argued was

ready, willing, and able to testify that he was being threatened by the victim. (Doc.

8-1, at 339). After withdrawing the issue at the PCRA hearing, Arias then submitted

a supplement with the declaration of Jose Majia, stating that he saw the victim pull

out a gun and start firing shots wildly and also saw Arias start shooting at the victim.

(Doc. 8-1, at 407).

The petitioner now seemingly incorporates these newly discovered witnesses

and their testimony into the instant petition. But, although not raised on appeal, the

PCRA court addressed this claim on the merits, stating:

In the first error complained of, it is alleged trial counsel was ineffective

for failing to conduct a pretrial investigation, without more. However,

notwithstanding the affidavit attached to the original PCRA

application, Petitioner failed to develop a record supporting the

allegation - likely due to the fact that the alleged witness failed to

appear. Additionally, PCRA counsel failed to secure and/or serve court

process to compel the attendance of the witness at the date and time of

the scheduled hearing. Apparently, Petitioner now believes he is

entitled to a second hearing with respect to the Supplement based upon

yet another witness "Declaration", notwithstanding the fact that the

Declaration clearly and unequivocally demonstrates the alleged witness

secreted himself from the authorities, the Defendant, and trial counsel

"...because [he] did not want to get involved". See, Paragraph No. 5 of

the Declaration to Supplement.

As stated, Petitioner bears the burden of pleading and proving by a

preponderance of the evidence a basis for the requested relief. PCRA

counsel failed to state how the witness identified in the Supplement to

the PCRA application was discovered on or about May 21, 2018, more

than a year after the original PCRA application was filed. Petitioner has

failed to cite authority supporting the proposition that trial counsel has

the obligation to discover a witness who has secreted himself from

authorities, the Defendant and trial counsel after allegedly witnessing a

crime. Notably, the several briefs PCRA counsel authored are devoid

of authority supporting the IAC claim advanced. Moreover, the PCRA

application lacks any averment as to how or why trial counsel knew, or

should have known, of this alleged witness and the very Declaration

relied upon demonstrates the unavailability of the alleged witness

"...because (he] did not want to get involved". Petitioner's bold

statement that the "witness" identified in the Supplement to the PCRA

application "...is just one ramification flowing from the failure to

conduct the reasonable pretrial investigation required by law" is

somewhat disingenuous when viewed in context of the Declaration

submitted.

PCRA counsel has cited Commonwealth v. Baxter, 640 A.2d 1271 (Pa.

1994) in support of this claimed error. In Baxter, counsel was found to

be ineffective for failing to investigate the background of the primary

prosecution witness. The witness in Baxter was known to trial counsel

and testified at trial that, in the course of a conversation he had with the

defendant at his home, the defendant confessed to the murder in

question. However, at the time of the alleged confession, the witness

was actually incarcerated and the witness presented the only solid

evidence linking the defendant to the crime. Baxter does not support

Petitioner's allegation of error here.

The applicable law provides that "To prevail on a claim that trial

counsel was ineffective for failing to present a witness, the defendant

must demonstrate (in addition to the existence of the witness and

counsel's awareness of that witness) that the witness was willing and

able to cooperate on behalf of the defendant; and that the proposed

testimony was necessary to avoid prejudice to the defendant."

Commonwealth v. Mason, 130 A.3d 601, 634-35 (Pa. 2015);

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). Here,

the alleged witness' Declaration demonstrates he was not known to the

authorities who investigated the crime nor to trial counsel because he

elected to secrete himself. Petitioner has failed to plead or prove any

reasonable means by which trial counsel could have discovered that this

witness existed at or before the time of trial. More importantly, the

witness was not willing to cooperate at the time of trial, by his own

admission. And unlike the circumstance in Baxter, there is no dispute

here that Defendant shot and killed the victim.

We find in this instance that the alleged witness, identified for the first

time in the procedurally defective Supplement, was simply unknown to

trial counsel and was-- given the assertion in the Declaration that he did

not want to be involved and secreted himself from the authorities,

Defendant and trial counsel- therefore unavailable. Further, we note

that this alleged witness was also apparently unknown and unavailable

to PCRA counsel for more than a year after her entry of appearance--

despite a presumably thorough investigation by PCRA counsel.

In addition to the pleading and proof deficiencies set forth above, we

find the Supplement unverified by the Defendant and that it fails to

contain certifications from the alleged witness indicating availability

and willingness to cooperate with the defense, even at this point in time.

See, Commonwealth v. Khalil, 806 A.2d 415, 422 (Pa. Super.2002); 42

Pa. C.S.A. § 9545. Therefore, a hearing would add nothing to change

our determination. See, Commonwealth v. Hill, 2019 PA Super 12 (Jan.

11, 2019).

In conclusion, we also note the trial record reflects trial counsel elicited

testimony from Commonwealth witness Rafael Santana -Nunez that he

was shot by the victim negating the allegation that trial counsel's further

investigation would have disclosed the victim was predisposed to carry

and use a firearm. See, N.T. Jury Trial, 8/14/14 at 551. Accordingly,

we find Defendant's first error alleged to be without arguable merit. See,

Commonwealth v. Giknis, 420 A.2d 419 (Pa. 1980).

Without the benefit of the petitioner’s briefing on this issue, and mindful of

the fact that the determination of a factual issue by a state court is presumed to be

correct unless the petitioner can show by clear and convincing evidence that this

factual finding was erroneous, 28 U.S.C. § 2254(e)(1), we see no error here. In fact,

the petitioner’s procedural defects and failure to develop the record as to this issue

extend to the instant petition, where he has provided no explanation or factual

support for this claim beyond reference to unnamed witnesses that he argues may

have been available to exonerate him at trial, despite the state court’s finding that

any subsequently named witnesses were not available or were unknown to trial

counsel. Moreover, any claim that, had trial counsel conducted an adequate

investigation, they would have discovered substantial evidence indicating the bullets

that killed the victim were fired from the victim’s own gun is not only devoid of any

specific evidentiary support that such evidence exists, but is belied by the testimony

of firearms expert Corporal Joseph Gober stating that both bullets found in the victim

were fired from the same gun, possibly a revolver, and were different from the other

casings found on the scene which likely came from Villalobos’ weapon. (Doc. 8-1,

at 118-120). Thus, we find this uncertain, vague, unsupported, and unexhausted

claim fails.

Arias’ claims of ineffective assistance of counsel regarding the jury

instructions fair no better. He argues that trial counsel was ineffective for requesting

“pattern” instructions, for failing to request a Rivera instruction regarding the

Commonwealth’s burden to disprove self-defense beyond a reasonable doubt, and

for failing to object to the “infer malice” instruction that the jury could consider the

use of a deadly weapon on a vital part of the body to infer malice where there was

no evidence that the petitioner fired the deadly shot.

As previously discussed, we employ a doubly deferential standard in

examining habeas petitions raising ineffective assistance of counsel, showing

deference to the decisions of state courts unless they are either “contrary to” or

involved an unreasonable application of clearly established case law; see 28 U.S.C.

§ 2254(d)(l); or “based upon an unreasonable determination of the facts.” See 28

U.S.C. § 2254(d)(2), and in assessing whether counsel’s performance was

constitutionally deficient, “[t]here is a ‘strong presumption’ that counsel’s

performance was reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089,

1094 (3d Cir. 1996)). Here, this doubly deferential standard works against the

petitioner, where the state court found these claims meritless or undeveloped and

trial counsel testified that their decisions were “strategic choices made after thorough

investigation of law and facts.” Knowles, 556 U.S. 111 at 129.

Turning first to the only ineffective assistance of counsel claim the parties

concede is properly exhausted, that trial counsel was ineffective for failing to object

to the “infer malice” instruction that the jury could consider the use of a deadly

weapon on a vital part of the body to infer malice when there was no evidence that

the petitioner fired the fatal shot, the Pennsylvania Superior Court found:

Here, the trial court instructed the jury that “[i]f you believe that [Arias]

intentionally used a deadly weapon on a vital part of the victim’s body,

you may regard that as an item of circumstantial evidence from which

you may, if you choose, infer that the defendant had the specific intent

to kill.” See N.T., 8/12-14/2014, at 818-19 (emphasis added). The jury

instruction allowed the jury to find malice if it found that a deadly

weapon was used on a vital part of the victim’s body, but did not require

that finding. This instruction mirrors the standard Pennsylvania deadly

weapon jury instruction, see Pa.SSJI (Crim) 15.2502A, and has been

upheld by our Supreme Court. See Commonwealth v. O’Searo, 352

A.2d 30, 37-38 (Pa. 1976) (upholding a deadly weapon jury instruction

that “permits the jury to find intent [to kill] from the use of a deadly

weapon[,]” but does not require it). Therefore, the jury instruction was

not improper.

Additionally, the evidence established that Arias shot the victim twice

in the torso; one bullet entered the victim’s back and lodged in his spine;

the second bullet entered the victim’s abdomen and lodged in his

stomach cavity. See N.T., 8/12-14/2014, at 491-96; see also id. at 175-

76. Gary Ross, M.D., a forensic pathologist, testified at trial that the

gunshot wound to the victim’s abdomen “was unquestionably lethal,

and [the victim] died directly as a result of this gunshot wound.” Id. at

499. Therefore, the evidence established that Arias used a deadly

weapon on a vital part of the victim’s body. See Commonwealth v.

Sepulveda, 855 A.2d 783, 789 (Pa. 2004) (stating that where the

defendant was shot in the abdomen, he was shot in a vital part of his

body); Commonwealth v. Drumheller, 808 A.2d 893, 908 (Pa. 2002)

(holding that the torso may be considered a vital part of the body).

Accordingly, because Arias’s underlying claim lacks merit, his

ineffectiveness claim fails.

(Doc. 8-1, at 731-32).

As to the petitioner’s argument that the state court’s decision is based upon an

unreasonable determination of the facts because there was no evidence that

Petitioner fired the bullet that killed the victim, indeed this view is a

misrepresentation of the expert testimony that revealed both bullets that hit the

victim were fired from the same weapon, possibly a revolver, the gun with which

the petitioner concedes he was armed. And although experts testified that the fatal

bullet showed evidence of damage that could have been attributed to a ricochet, they

also testified that the damage could have been from hitting bone, and that only

biological material was found on the bullet. (Doc. 8-1, at 120). Thus, although the

petitioner does not wish it to be so, based upon this expert testimony the jury very

well could have found that Arias fired the fatal shot upon a vital part of the victim’s

body, his torso. On these facts, it cannot be said that the state court’s decision was

based upon an unreasonable factual determination.

Nor can it be said that the state court’s decision was contrary to or an

unreasonable application of caselaw. As the Superior Court pointed out, this

instruction mirrored the standard Pennsylvania deadly weapon jury instruction.

Moreover, the Pennsylvania Supreme Court has upheld such a jury instruction

where, as here, the inference the jury was told it could make was permissible, not

mandatory (e.g. “if you believe that [Arias] intentionally used a deadly weapon on a

vital part of the victim’s body . . . you may, if you choose, infer that the defendant

had the specific intent to kill.”). See Commonwealth v. O’Searo, 352 A.2d 30, 37-

38 (Pa. 1976). Moreover, the petitioner’s reliance upon the Court’s holding in Yates

v. Evatt, 500 U.S. 391 (1991) to support his argument that the state court misapplied

the law is misplaced, since the instruction in Yates was a mandatory, albeit

rebuttable, instruction. Unlike the mandatory “infer malice” instruction that the

Yates court found constitutionally erroneous, the Court was careful to note that:

A mandatory presumption, even though rebuttable, is different from a

permissive presumption, which does not require . . . the trier of fact to

infer the elemental fact from proof by the prosecutor of the basic one

and . . . places no burden of any kind on the defendant. A permissive

presumption merely allows an inference to be drawn and is

constitutional so long as the inference would not be irrational.

Yates v. Evatt, 500 U.S. 391, 402, 111 S. Ct. 1884, 1892, 114 L. Ed. 2d 432 (1991),

disapproved of by Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d

385 (1991) (cleaned up). Indeed, the Supreme Court has held that:

A permissive inference does not relieve the State of its burden of

persuasion because it still requires the State to convince the jury that

the suggested conclusion should be inferred based on the predicate facts

proved. . . . A permissive inference violates the Due Process Clause

only if the suggested conclusion is not one that reason and common

sense justify in light of the proven facts before the jury.

Francis v. Franklin, 471 U.S. 307, 314–15, 105 S. Ct. 1965, 1971, 85 L. Ed. 2d 344

(1985), holding modified by Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108

L. Ed. 2d 316 (1990) (citing Ulster County Court v. Allen, 442 U.S. 140, 157–163

(1979); see also Romero v. Beard, No. CV 08-0528-KSM, 2024 WL 1975475, at

*53 (E.D. Pa. May 2, 2024) (applying Francis in deferring to state court’s ruling on

permissive jury instruction). Having found that the state court’s factual

determinations on this issue were not unreasonable and legal conclusions supported

by both state and federal law, we defer to the state court’s ruling that this ineffective

assistance of counsel claim fails.

As to the remaining two ineffective assistance of counsel claims, as previously

discussed, the state court found that Arias had not fully developed, and therefore

waived, these claims, making them procedurally defaulted and barred from habeas

relief. But, even setting aside these procedural defaults, Arias’ claims fail under our

independent application of Strickland. Arias argues that trial counsel’s request for

pattern instructions was deficient and prejudicial, and that trial counsel was

ineffective for failing to request a Rivera instruction regarding the Commonwealth’s

burden of disproving a defense beyond a reasonable doubt once it has been raised

by the defendant. Specifically, the instruction the petitioner argues trial counsel was

ineffective for not requesting states:

When the defendant introduces evidence of self-defense, the

Commonwealth bears the burden of disproving such a defense beyond

a reasonable doubt. The Commonwealth cannot sustain its burden of

proof solely on the factfinder's disbelief of the defendant's testimony.

The disbelief of a denial does not, taken alone, afford affirmative proof

that the denied fact existed so as to satisfy a proponent's burden of

proving that fact.

Com. v. Rivera, 603 Pa. 340, 355–56, 983 A.2d 1211, 1221 (2009) (quoting Com.

v. Torres, 564 Pa. 219, 766 A.2d 342, 345 (2001)) (internal quotations omitted).

It is undisputed that the jury instructions stated that the Commonwealth bore

the burden of disproving self-defense beyond a reasonable doubt. But the petitioner

argues that trial counsel was constitutionally ineffective for failing to object to

instructions which did not convey to the jury in clear and unmistakable language that

the prosecution’s burden of disproving self-defense beyond a reasonable doubt could

not be based solely on its disbelief of the petitioner’s testimony. In the petitioner’s

view, his guilt or innocence hinged solely on his credibility, since the witness who

testified he shot first only heard the altercation but did not see it and the prosecution

used his credibility against him in its closing argument, and thus it was imperative

that the jury be given this specific instruction. For this reason, the petitioner argues

the use of the standard “pattern” instructions in this case was insufficient and

confusing to the jury and resulted in prejudice.

As previously noted, to prevail on a claim of ineffective assistance of counsel,

a petitioner must establish that: (1) the performance of counsel fell below an

objective standard of reasonableness; and (2) that, but for counsel’s errors, the result

of the underlying proceeding would have been different. Strickland v. Washington,

466 U.S. 668, 687-88, 691-92 (1984). At the outset, Strickland requires a petitioner

to “establish first that counsel’s performance was deficient.” Jermyn v. Horn, 266

F.3d 257, 282 (3d Cir. 2001). This threshold showing requires a petitioner to

demonstrate that counsel made errors “so serious” that counsel was not functioning

as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must

demonstrate that counsel’s representation fell below an objective standard of

reasonableness under prevailing professional norms. Id. However, in making this

assessment “[t]here is a ‘strong presumption’ that counsel’s performance was

reasonable.” Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)).

On this score, we presume trial counsel’s actions were part of a sound trial strategy,

unless the petitioner can disprove this fact or show that such strategy was unsound.

Moreover, with respect to these legal issues relating to counsel's performance

as it pertains to jury instructions, “on federal habeas review, the relevant question is

‘whether the [challenged] instruction by itself so infected the entire trial that the

resulting conviction violated due process . . ., not merely whether the instruction is

undesirable, erroneous, or even universally condemned.” Martin v. Warden,

Huntingdon State Correctional Inst., 653 F.2d 799, 809 (3d Cir.1981) (alteration in

original) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d

203 (1977) and Cupp v. Naughten, 414 U.S. 141, 146–47, 94 S.Ct. 396, 38 L.Ed.2d

368 (1973)). Furthermore, “a single instruction to the jury may not be judged in

artificial isolation but must be viewed in the context of the overall charge.” Id. If an

instruction is found wanting, then a second showing must be made; that is, the failure

to object to that instruction by counsel must be highly prejudicial to warrant habeas

relief. Therefore, “[t]o the extent that [a habeas corpus] claim is based on counsel's

failure to object [to a jury instruction, that claim fails when the petitioner] cannot

show a reasonable probability that the outcome of the proceeding would have been

different if counsel had objected.” Id. at 113–114.

Arias’ claims of ineffective assistance of counsel based on these correct, but

perhaps incomplete, jury instructions stumble at both stages of our inquiry. As to

whether the use of the pattern instructions and failure to include a Rivera instruction

fell below the objective standard of reasonableness, at the PCRA hearing, trial

counsel testified that the requested jury charge was standard and adequate and that

no objections were made because they believed the standard instructions regarding

self-defense and were appropriate for the case. (Doc. 8-1, 346-56). Despite the

petitioner’s dissatisfaction with the specificity of the instructions, he does not argue

that the instructions were erroneous; indeed all agree these jury instructions were

standard. And, beyond the outcome of the trial being in his disfavor, he fails to

demonstrate how trial counsel’s clear belief that these instructions were adequate as

part of their trial strategy fell below the objective standard of reasonableness under

prevailing professional norms.

But, most importantly, all of Arias’ ineffective assistance of counsel claims

fail on the second Strickland prong because, despite his arguments that there was no

evidence that he was the aggressor, there was ample circumstantial evidence in the

record from which the jury could conclude that the Commonwealth met its burden

beyond a reasonable doubt. Arias’ argument that a single sentence instructing the

jury on his credibility would have changed the outcome of his trial might have

greater weight if the sole evidence relating to self-defense came exclusively from

his own testimony as he argues.

However, there was another witness, Rafael Santana-Nunez, who testified that

Arias shot first. Further, other evidence indicated that Arias was the first aggressor

in that he initiated the confrontation with Villalobos over a drug debt. Finally, the

forensic testimony of Dr. Ross thoroughly undermines any claim of self-defense

since Dr. Ross opined first that Arias shot the victim in his back. Arias cannot

credibly claim that a man who had turned his back on the petitioner presented an

immediate threat. Further, once Arias’ first shot in Villalobos’ back left him prone,

the evidence indicates that Arias inflicted a second fatal wound to his victim as he

lay on the ground. This calculated conduct is also inconsistent with a claim of self-

defense.

In this setting, we cannot make the finding that there is a reasonable likelihood

that the failure to give the additional instruction would have led to a different

outcome, where the Commonwealth has met the burden of providing some other

evidence, albeit the evidence of a witness who did not directly observe the shooting,

but heard it, and, despite inconsistent accounts, ultimately testified at trial that the

first shot was fired by Arias. Although this evidence is imperfect, it is significant

additional evidence, beyond its disbelief of the petitioner’s testimony, on which the

jury’s verdict could rest. Therefore, Arias has not carried his exacting burden of

showing both a failure of defense counsel and prejudice. Accordingly, even if these

claims were not procedurally barred, they fail on their merits.

4. Arias’ Due Process Claims Fail.

The petitioner’s challenge of the jury instructions fails for similar reasons in

the context of Arias’ claim that these instructions violated his Fourteenth

Amendment right to Due Process. On the score, the Supreme Court has cabined our

review of the constitutionality of jury instructions, stating:

The only question for us [on habeas review] is “whether the ailing

instruction by itself so infected the entire trial that the resulting

conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147,

94 S.Ct. 396, 400–01, 38 L.Ed.2d 368 (1973); see also Henderson v.

Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736–37, 52 L.Ed.2d 203

(1977); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868,

1871, 40 L.Ed.2d 431 (1974) (“‘[I]t must be established not merely that

the instruction is undesirable, erroneous, or even “universally

condemned,” but that it violated some [constitutional right]’”). It is well

established that the instruction “may not be judged in artificial

isolation,” but must be considered in the context of the instructions as

a whole and the trial record. Cupp v. Naughten, supra, 414 U.S., at 147,

94 S.Ct., at 400–01. In addition, in reviewing an ambiguous instruction

such as the one at issue here, we inquire “whether there is a reasonable

likelihood that the jury has applied the challenged instruction in a way”

that violates the Constitution. Boyde v. California, 494 U.S. 370, 380,

110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). And we also bear in

mind our previous admonition that we “have defined the category of

infractions that violate ‘fundamental fairness' very narrowly.” Dowling

v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 674, 107 L.Ed.2d

708 (1990). “Beyond the specific guarantees enumerated in the Bill of

Rights, the Due Process Clause has limited operation.” Ibid.

Estelle v. McGuire, 502 U.S. 62, 71–73, 112 S. Ct. 475, 481–82, 116 L. Ed. 2d 385

(1991). Since we find the instructions, as a whole, did not prejudice the petitioner

such that the outcome of the trial would have been different, his challenge of the jury

instructions under due process also fails.9

Finally, in his petition, Arias raises a due process argument that the state court

addressed on direct appeal, that the trial court erred in allowing medical examiner,

Dr. Ross, to testify about the location of the shooter when the second shot was fired

because it was outside the scope of his expertise. The petition argues that this type

9 The related arguments regarding the unanimity of the verdict due to jurors’

interpretations of the instructions and the alleged prejudice caused by the “vital

interest” instruction also fail, where the petitioner does not argue these instructions

were erroneous or contrary to law, in fact, they were the standard jury instructions,

but rather argues that they were confusing and not tailored to the facts of the case.

However, considered as a whole, and where there was evidence in the record from

which the jury could draw its conclusions, we do not find that it is likely the jury

applied the instructions in a way that violates the Constitution.

of testimony requires an expert in ballistics. Arias does not provide additional

support for this ground in his memorandum, and the state court addressed the issue

on appeal, stating:

Contrary to Arias’s assertion otherwise, we have long held that “[a]

physician who examines the gunshot wounds suffered by a decedent

may give his opinion regarding the direction and distance from which

such wounds were inflicted though that physician is not qualified as a

ballistics expert.” Commonwealth v. Guess, 416 A.2d 1094, 1096 (Pa.

Super. 1979) (citing Commonwealth v. Gonzales, 345 A.2d 691 (Pa.

1975)). Here, Dr. Ross was an expert in forensic pathology who

conducted the autopsy of the victim. We therefore find the opinion

offered by Dr. Ross regarding the direction from which the second shot

was fired was within his area of expertise. See, e.g., Commonwealth v.

Mollett, 5 A.3d 291, 305 (Pa. Super. 2010) (finding it was within former

medical examiner’s area of expertise to testify to position of decedent

prior to being shot). Accordingly, the admission of this testimony was

not in error.

(Doc. 8-1, at 312-13).

The state court noted that Arias cited no case law in support of his proposition

that Dr. Ross was unqualified to offer such an opinion. Similarly here, although this

issue is raised as a ground in Arias’ petition, he has failed to develop this argument

in his memorandum or cite any caselaw demonstrating the state court’s

determination on this issue was “contrary to” or involved an unreasonable

application of clearly established case law; see 28 U.S.C. § 2254(d)(l); or “based

upon an unreasonable determination of the facts.” See 28 U.S.C. § 2254(d)(2).

Indeed, it is well settled in Pennsylvania that such testimony by a medical examiner

is proper. It also appears medical examiner testimony about the location of the

shooter based on an examination of the victim is also common, unremarkable, and

permissible in our circuit. See e.g. Edwards v. Superintendent Forest SCI, 845 F.

App'x 148, 152 (3d Cir. 2021) (Medical examiner determined that the shots were

fired from at least three feet away); Preston v. Superintendent Graterford SCI, 902

F.3d 365, 370 (3d Cir. 2018) (Medical examiner testified that the trajectory of the

bullet was consistent with a shooter standing on the victim’s left side and that the

victim’s facial injuries indicated that he had fallen flat on his face after being shot);

Dellavecchia v. Sec'y Pennsylvania Dep't of Corr., 819 F.3d 682, 696 (3d Cir. 2016)

(Medical examiner testified that the location of the gunshot indicated that the victim

was shot with his back to his shooter and that the lack of soot or stippling on the

victim’s body indicates that the shots were fired from more than three feet away);

Collins v. Sec'y of Pennsylvania Dep't of Corr., 742 F.3d 528, 548 (3d Cir. 2014)

(Testimony of medical examiner demonstrating the location of the shooter based

upon the gunshot wound patterns would not have been refuted by a ballistics expert).

Given the undisputed view of both state and federal courts that a medical examiner

may give his opinion regarding the direction and distance from which gunshot

wounds were inflicted, it cannot be said that this testimony violated Arias’ right to

due process at trial and this claim fails.

In sum, we are mindful that the Supreme Court has observed that a “doubly

deferential judicial review . . . applies to a Strickland claim evaluated under the §

2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also

Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness

claims is “doubly deferential when it is conducted through the lens of federal

habeas”). Given this deferential standard, and in consideration of the great weight of

evidence supporting its conclusions, we cannot conclude that the state courts’

decisions relating to these ineffective assistance of counsel claims were an

unreasonable application of Strickland or based on an unreasonable determination

of the facts. To the contrary, the state courts’ analyses of the petitioner’s

constitutional claims are thorough and well-supported by both the law and the facts

of his case. Further, Arias has not met the rigorous standards to demonstrate that he

was deprived of the process due to him at trial and all claims not presented in state

court are unexhausted, procedurally defaulted, and without merit. Therefore, these

claims do not warrant habeas relief.

Finally, we have carefully considered whether Arias is entitled to

a certificate of appealability under 28 U.S.C. § 2253. As the Supreme Court

observed “the showing required to satisfy § 2253(c) is straightforward: The

petitioner must demonstrate that reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529

U.S. 473, 484, (2000). Here, we conclude that Arias can make no such showing in

light of the state court findings, clear evidence of his factual guilt, and the fact that

the bulk of his claims are unexhausted or procedurally defaulted. Simply put, we

believe that no reasonable jurist could now find that the state courts misapplied the

law in finding that Arias committed this murder, considering the weight of

circumstantial evidence in this case. Accordingly, a certificate of appealability will

not issue in this case.

IV. Conclusion

Accordingly, for the foregoing reasons, we conclude that the Petition for Writ

of Habeas Corpus should be DENIED and that a certificate of appealability should

not issue. An appropriate order follows.

Submitted this 25th day of July 2024.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge