The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL MARCHALK, : CIVIL ACTION NO. 1:23-CV-493
:
Petitioner : (Judge Conner)
:
v. :
:
SUPERINTENDENT MCGINLEY, :
:
Respondent :
MEMORANDUM
This is a habeas corpus case filed pursuant to 28 U.S.C. § 2254. Petitioner,
Michael Marchalk, challenges his 2018 conviction in the Schuylkill County Court of
Common Pleas for third-degree murder, theft by unlawful taking, access device
fraud, and possession of an instrument of crime. We will deny the petition for writ
of habeas corpus with prejudice.
I. Factual Background & Procedural History
Marchalk’s criminal charges were based on the killing of his father, Gary
Marchalk. The state courts of Pennsylvania have succinctly summarized the
relevant facts. Marchalk, who at the time was struggling with an addiction to
heroin, met with his father at his father’s place of employment on a Friday to ask for
help starting a rehab program. Commonwealth v. Marchalk, No. CR-1407-2017,
2016 WL 11799116, at *1 (Schuylkill Cnty. Ct. Com. Pl. Apr. 26, 2016). The two
arranged for Marchalk to begin rehab on the following Monday. Id. Marchalk
accepted his father’s invitation to stay with him for the intervening three nights. Id.
On Sunday afternoon, the day before he was to begin rehab, Marchalk began
experiencing symptoms of withdrawal from heroin. Id. Marchalk asked his father
for money so that he could purchase heroin or suboxone. Id. Marchalk’s father
became angry and asked him to leave the home but gave him the money he had in
his wallet, which was approximately $39. Id. Marchalk was unable to obtain heroin
or suboxone, but he instead purchased and consumed crack cocaine with the
money his father had given him. Id. Marchalk subsequently returned to his
father’s home. Id. Marchalk’s father initially told him to leave but then let him in.
Id. After they talked briefly, Marchalk’s father told him to go to bed and went up to
his own room to do the same. Id.
Shortly after this conversation, Marchalk went to his father’s bedroom where
his father was lying on his bed with a baseball bat next to him. Id. at *2. Marchalk’s
father again told him to go to bed, but Marchalk stated that he could not sleep. Id.
Marchalk’s father then abruptly swung the bat at Marchalk and Marchalk blocked it
with his arm. Id. Marchalk grabbed an iron from a nearby ironing board and threw
it towards his father. Id. The iron did not hit him. Id. Marchalk’s father then fell
back on his bed, and Marchalk charged at him. Id. Marchalk’s father tried to hit
Marchalk with the bat again, but Marchalk took it away from him. Id. Marchalk
then struck his father with the bat five or six times and killed him. Id.
Marchalk took his father’s wallet and car keys and fled the home in his
father’s car. Id. He was arrested in Atlantic City, New Jersey, a few days later and
charged with first-, second-, and third-degree murder, theft by unlawful taking,
access device fraud, and possession of an instrument of crime. Commonwealth v.
Marchalk, No. 149 MDA 2019, 2019 WL 6318155, at *1 (Pa. Super. Ct. Nov. 25, 2019).
After a jury trial, Marchalk was acquitted of first- and second-degree murder but
convicted on all other counts. Id. The court of common pleas sentenced him to
twenty-four and a half to forty-nine years of imprisonment. Id.
Marchalk appealed to the Pennsylvania Superior Court, arguing that the
court of common pleas erred by failing to give an adequate jury instruction on the
heat of passion defense. Id. Specifically, he argued that the court was required to
instruct the jury that it must consider heat of passion evidence at the outset of its
deliberations instead of after it had reached a conclusion on the murder charges.
Id. at *1-2. The court of common pleas issued an opinion pursuant to Pennsylvania
Rule of Appellate Procedure 1925 concluding that the appeal should be denied, and
the superior court affirmed based on the court of common pleas’ reasoning. Id.
Marchalk did not appeal to the Pennsylvania Supreme Court. (Doc. 1 at 2).
On November 17, 2020, Marchalk filed a petition for state collateral relief
under Pennsylvania’s Post-Conviction Relief Act (“PCRA”), in which he
represented that he planned to advance several claims of ineffective assistance of
trial counsel. (Doc. 23-11). On December 10, 2020, Attorney Adam Weaver was
appointed to represent Marchalk in PCRA proceedings. Commonwealth v.
Marchalk, 290 A.3d 671, No. 136 MDA 2022, 2022 WL 17576395, at *1 (Pa. Super. Ct.
Dec. 12, 2022). On April 1, 2021, Attorney Weaver moved to withdraw as counsel
and filed a Turner/Finley no merit letter.1 (Doc. 23-12 at 3-5; Doc. 23-13). On April
6, 2021, the court of common pleas issued a notice informing Marchalk of its
intention to dismiss the PCRA petition without an evidentiary hearing pursuant to
Pennsylvania Rule of Criminal Procedure 907 and granting Attorney Weaver’s
request to withdraw as counsel. (Doc. 23-14).
Marchalk filed a response to the court’s notice on April 29, 2021. (Doc. 23-15).
The response asserted, inter alia, that Attorney Weaver provided ineffective
assistance of counsel by failing to present several of his potential claims to the
court. (Id.) The court appointed Attorney Jeffrey M. Markosky as new counsel.
(Doc. 23-16). Markosky moved to withdraw as counsel and filed a Turner/Finley no
merit letter on October 29, 2021. (Docs. 23-17, 23-18). The court of common pleas
granted Markosky’s motion to withdraw as counsel and again announced its
intention to dismiss the petition without a hearing pursuant to Rule 907 on
November 4, 2021. (Doc. 23-19). Marchalk filed a response on November 10, 2021,
asserting that Attorney Markosky provided ineffective assistance of counsel and
requesting either newly appointed counsel or leave to proceed pro se. Marchalk,
2022 WL 17576395, at *1. The court of common pleas then dismissed the PCRA
petition on December 17, 2021. Id. Marchalk appealed the judgment pro se. Id.
The court of common pleas addressed the appeal pursuant to Rule 1925 on
March 26, 2022. (Doc. 23-24). The court concluded, inter alia, that Marchalk waived
1 See generally Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988).
his layered ineffective assistance of counsel claims asserting ineffective assistance
by Attorneys Weaver and Markosky. (Id. at 6-7). The superior court affirmed the
dismissal of the PCRA petition on December 12, 2022, agreeing with the court of
common pleas that Marchalk waived his layered claims of ineffective assistance of
counsel by Attorneys Weaver and Markosky and that Marchalk was otherwise not
entitled to relief. 2022 WL 17576395, at *4-5. Marchalk filed a petition for allowance
of appeal to the Pennsylvania Supreme Court. (Doc. 23-28).
Marchalk filed the instant case on March 21, 2023. (Doc. 1). He filed a motion
to protectively stay the case pending his appeal to the Pennsylvania Supreme Court
on the same date. (Doc. 2). The court granted the motion to stay on March 22, 2023,
and administratively closed the case. (Doc. 5). On July 11, 2023, the Pennsylvania
Supreme Court denied Marchalk’s petition. Commonwealth v. Marchalk, 301 A.3d
426 (Pa. 2023). Marchalk notified this court of the Pennsylvania Supreme Court’s
decision via a brief filed on July 27, 2023. (Doc. 8). This court reopened the case,
lifted the stay, and provided Marchalk notice and an opportunity to withdraw his
petition pursuant to Mason v. Meyers, 208 F.3d 414, 417-18 (3d Cir. 2000), on July 28,
2023. (Doc. 9). Marchalk elected to have his petition ruled upon as filed on
September 5, 2023. (Doc. 10). The court directed service on respondent on
September 11, 2023. (Doc. 11). Respondent responded to the petition on April 15,
2024, after being granted several extensions of time. (Doc. 25). Marchalk filed a
reply brief on May 1, 2024, making the petition ripe for review. (Doc. 26).
II. Discussion
Marchalk’s petition asserts four claims for habeas corpus relief: (1) that trial
counsel was ineffective because she prepared to defend the merits of the murder
charges against Marchalk despite Marchalk “demand[ing] that counsel prepare
only to present a heat of passion voluntary manslaughter defense”; (2) that trial
counsel was ineffective because she failed to competently present a heat of passion
defense; (3) that the trial court gave an inaccurate jury instruction on voluntary
manslaughter; and (4) that trial counsel was ineffective in failing to object to the
voluntary manslaughter jury instruction. (Doc. 1 at 5-9). Marchalk attempts2 to
assert two other claims in his July 27, 2023 brief: that counsel was ineffective for
needlessly introducing Marchalk’s prior bad acts as evidence at trial and failing to
object to hearsay testimony. (Doc. 8 at 4, 33-35). Marchalk acknowledges that his
claims are procedurally defaulted but argues that the procedural default should be
excused because his PCRA counsel was ineffective in failing to present the claims.
(Doc. 1 at 5-10; Doc. 8 at 32). Respondent contends that Marchalk’s claims should
be denied as procedurally defaulted. (Doc. 25).
At the outset, the court will deny relief on Marchalk’s claim that the trial
court gave an inaccurate jury instruction on voluntary manslaughter because it only
alleges a violation of Pennsylvania law. Federal habeas corpus relief is not available
for violations of state law. Jones v. Hendrix, 599 U.S. 465, 490 (2023) (citing Estelle
2 Marchalk has neither sought nor obtained leave to amend his petition to
include these claims.
v. McGuire, 502 U.S. 62, 67 (1991)). Our analysis proceeds to respondent’s
procedural default argument solely with respect to Marchalk’s ineffective assistance
of counsel claims.
Before seeking habeas corpus relief in federal court, a state prisoner must
exhaust his remedies in state court. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must “give the state
courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.” Id. at 842.
Habeas corpus claims are procedurally defaulted when either (a) the claims
have not been exhausted and no additional state remedies are available under state
procedural rules or (b) the claims were presented in state court but were not
addressed on their merits because an independent and adequate state procedural
rule barred review on the merits. Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012).
Federal courts may not consider procedurally defaulted claims unless the
petitioner “can demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750 (1991). Petitioners may establish a fundamental miscarriage of
justice if they can make a credible showing of actual innocence. Reeves v. Fayette
SCI, 897 F.3d 154, 160 (3d Cir. 2018).
Under Martinez v. Ryan, 566 U.S. 1, 9 (2012), ineffectiveness of PCRA counsel
may excuse procedural default of a claim of ineffective assistance of trial counsel in
some circumstances. To excuse procedural default under Martinez, a petitioner
must establish that his PCRA counsel was ineffective and that his underlying
ineffective assistance of trial counsel claim “is a substantial one, which is to say that
the prisoner must demonstrate that the claim has some merit.” Id. at 14.
Before ineffective assistance of PCRA counsel can excuse the procedural
default of another claim, the ineffective assistance claim generally must be
presented in state court as an independent claim in accordance with state
procedural rules. Edwards v. Carpenter, 529 U.S. 446, 452 (2000). In other words,
“an ineffective-assistance-of-counsel claim asserted as cause for the procedural
default of another claim can itself be procedurally defaulted” if it is not properly
presented in state court. Id. at 453.3 When a petitioner has “multiple opportunities
to challenge an error” in state court, “each time he fails to do so is a procedural
default” that “must be excused” before the merits of his underlying claim for
habeas corpus relief can be considered on its merits in federal court. Richardson v.
Superintendent Coal Township SCI, 905 F.3d 750, 759 (3d Cir. 2018).
The Pennsylvania Supreme Court significantly changed the procedural rules
governing claims of ineffective assistance of PCRA counsel in Commonwealth v.
Bradley, 261 A.3d 381 (Pa. 2021). Prior to Bradley, “the sole method by which a
petitioner [could] challenge the ineffectiveness of his PCRA counsel [was] through
the filing of a response to the PCRA court’s Rule 907 dismissal notice.” Id. at 386.
Failure to advance a claim of ineffective assistance of PCRA counsel under Rule 907
3 As respondent correctly notes, (Doc. 25 at 42 n.18), Edwards remains good
law. Neither Martinez nor any other subsequent Supreme Court decision has
overruled or abrogated this holding.
resulted in waiver of the claim. Id. at 397. In Bradley, the court concluded that this
procedure was “functionally unsound,” see id. at 398, and adopted a new rule,
holding that a “PCRA petitioner may, after a PCRA court denies relief, and after
obtaining new counsel or acting pro se, raise claims of PCRA counsel’s
ineffectiveness at the first opportunity to do so, even if on appeal.” Id. at 401. The
court noted in dicta, however, that its holding did not necessarily apply in the
“unique context” where PCRA counsel has filed a Turner/Finley no merit letter in
the court of common pleas and that the Rule 907 procedure might still govern in
that situation. Id. at 401 n.16.
Regardless of whether his claims of PCRA counsel’s ineffectiveness were
governed by the Rule 907 procedure or the more flexible approach adopted in
Bradley, Marchalk procedurally defaulted the claims. In his response to the court
of common pleas’ first Rule 907 notice, Marchalk vaguely asserted that Attorney
Weaver “did not raise the majority of issues” that he had concerns about and
“refused to raise issues concerning improper instructions” given by the trial court.
(Doc. 23-15 at 2). In his concise statement of errors complained of on appeal filed
pursuant to Pennsylvania Rule of Appellate Procedure 1925, Marchalk did not
advance any claims of ineffective assistance by PCRA counsel. (Doc. 23-23). And in
his subsequent brief to the superior court, Marchalk asserted that Attorneys
Weaver and Markosky failed to investigate potential claims that Marchalk noted in
phone conversations with the attorneys and failed to raise the underlying claims
that Marchalk advanced in the remainder of his brief. (Doc. 23-25 at 11). Nowhere
in his brief, however, did he identify the specific habeas claims that he advances in
the instant case—ineffective assistance of trial counsel in failing to adequately
prepare or present a heat of passion defense and in failing to object to the trial
court’s jury instructions on manslaughter. (See generally Doc. 23-25).
Because Marchalk’s filings in state court failed to advance his claims of
layered ineffective assistance of counsel with any specificity, the superior court
deemed the claims waived. Marchalk, 2022 WL 17576395, at *5. This is an
independent and adequate state procedural conclusion to which this court must
defer. Hence, we conclude that Marchalk has procedurally defaulted his claims of
ineffective assistance of PCRA counsel. Because the ineffective assistance of PCRA
counsel is the only basis Marchalk has advanced to excuse the procedural default of
his claims in the instant case,4 we conclude, in turn, that his claims for federal
habeas corpus relief are procedurally defaulted. See Edwards, 529 U.S. at 452-53;
Richardson, 905 F.3d at 759.
The two additional claims Marchalk attempts to advance in his July 27, 2024,
brief—that counsel was ineffective for needlessly introducing Marchalk’s prior bad
acts as evidence at trial and failing to object to hearsay testimony—are procedurally
defaulted for the same reasons. He did not assert these claims in state court, and he
procedurally defaulted any claims of PCRA counsel’s ineffectiveness that could
have been advanced as an excuse for the procedural default.
4 Marchalk has not advanced an actual innocence argument to excuse the
procedural default of his claims, but even if he did this argument would clearly fail.
Marchalk has repeatedly admitted in state court proceedings and proceedings
before this court that he killed his father.
III. Conclusion
We will deny the petition for writ of habeas corpus with prejudice. A
certificate of appealability will not issue because no reasonable jurist would
disagree with this ruling or conclude that the issues presented are adequate to
deserve encouragement to proceed further. Buck v. Davis, 580 U.S. 100, 115 (2017)
(citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). An appropriate order shall
issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: October 23, 2024