Mullen v. Salamon

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTOPHER MULLEN,

Petitioner : CIV. ACTION NO. 3:22-CV-953

v. ; (JUDGE MANNION)

BOBBI JO SALAMON, ef ai., :

Respondents ;

MEMORANDUM

Presently before the court is a pro se petition for writ of habeas corpus

filed pursuant to 28 U.S.C. §2254. For the reasons set forth below, the

petition will be denied and a certificate of appealability will not issue.

BACKGROUND

Petitioner, Christopher Mullen, is incarcerated in Rockview State

Correctional Institution (“SCl-Rockview’). He brings the instant case under

28 U.S.C. §2254 to challenge the legality of a 2019 criminal conviction and

sentence in the Lycoming County Court of Common Pleas. (Doc. 1).

The Superior Court of Pennsylvania has succinctly summarized much

of the relevant procedural history and factual background. In 2017, Mullen

was under the supervision of the Pennsylvania Board of Probation and

Parole. Commonwealth v. Mullen, 267 A.3d 507, 509 (Pa. Super. Ct. 2021).

Mullen absconded, which resulted in the issuance of a warrant for his arrest.

ld. On June 7, 2017, parole agent Michael Barvitskie received an anonymous

tip that Mullen was located at 408 Anthony Street in Williamsport,

Pennsylvania. /d. The tip indicated that there might be guns and drugs

present in the home. /d. Barvitskie investigated the tip and learned that 408

Anthony Street was a twin home with 406 Anthony Street, and that Mullen’s

mother lived in the other home. /d. Later that day, parole agents and law

enforcement officers surrounded the home. /d. Barvitskie observed Mullen

through the window of the home and ordered him to exit the premises. /d.

Mullen refused and closed the blinds. /d.

Parole agents knocked on the door at 408 Anthony Street and another

male, whose last name was Miller, answered the door. /d. Miller initially

denied that Mullen was present in the home, but later admitted that he was

there. /¢. The agents and officers entered and observed guns and drugs in

the home. /d. Parole agents subsequently located Mullen in the crawl space

of the home. /d. A special response team pulled him out of the crawl space

from his mother’s side of the home. /d. After arresting Mullen, the officers

obtained a search warrant for the home. /d.

Mullen was charged with various gun- and drug-related offenses. /d.

He filed a motion to suppress evidence on August 10, 2017, arguing that the

anonymous tip was unreliable and that the law enforcement officers lacked

reasonable suspicion or probable cause to enter the residence. /d. Mullen

argued that all evidence seized from the home should be suppressed as fruit

of the poisonous tree. /d. at 511. The trial court denied the motion to

suppress following a suppression hearing on October 12, 2017. /d.

On January 22, 2019, Mullen filed a motion in limine, arguing that

officers needed to obtain a warrant prior to entering the home and seeking

to bar all evidence seized from the home. /d. The trial court denied the motion

as untimely and waived the next day. /d.

On February 15, 2019, Mullen was convicted of two counts of unlawful

possession of a firearm, one count of possession of a controlled substance,

and one count of possession of drug paraphernalia. /¢. The trial court

sentenced Mullen to an aggregate term of 6-13 years of imprisonment on

April 2, 2019. /d. Mullen filed a post-sentence motion, which the trial court

denied as untimely on June 12, 2019. /d. He did not file a direct appeal to

the Superior Court. /d.

Mullen subsequently filed a pro se petition for state collateral relief

under Pennsylvania’s Post-Conviction Relief Act (“PCRA”). /d. Counsel was

appointed to represent Mullen, and he then filed an amended petition through

counsel seeking reinstatement of his right to file a direct appeal. /o. The court

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of common pleas granted the PCRA petition and reinstated Mullen’s direct

appeal rights on October 3, 2019. /d. Mullen then filed a direct appeal to the

Superior Court on October 14, 2019. /d.

On appeal, Mullen argued the trial court erred when it denied his

motion to suppress evidence on the grounds that it was obtained without a

warrant. Commonwealth v. Mullen, 237 A.3d 479 (Pa. Super. Ct. 2020). The

Superior Court affirmed, conciuding that Mullen waived his claim by failing to

argue the lack of a warrant before the trial court. /d.

On June 8, 2020, Mullen filed a pro se petition for PCRA relief. Mullen,

267 A.3d at 511. Counsel was appointed to represent Mullen, and after

conducting a hearing the court of common pleas denied the petition on April

20, 2021. id. Mullen appealed on April 29, 2021, arguing that trial and

appellate counsel were ineffective for failing to properly pursue suppression

of evidence seized from the home. /d. The Superior Court affirmed the denial

of the petition on December 8, 2021. /d. at 517. Muilen filed a petition for

allowance of appeal to the Pennsylvania Supreme Court, which was denied

on March 23, 2022. Commonwealth v. Mullen, 275 A.3d 488 (Pa. 2022).

Mullen filed the instant petition for writ of habeas corpus pursuant to

28 U.S.C. §2254 on June 16, 2022. (Doc. 1). The petition asserts thee claims

for habeas corpus relief: (1) that trial and appellate counsel were ineffective

for failing to properly pursue suppression of the evidence seized from the

home; (2) that the officers needed to have a warrant to enter the home to

arrest Mullen; and (3) that there was no probable cause to enter the home.

(/d.) Respondents filed a response to the petition on March 9, 2023. (Doc.

10). Respondents argue that Mullen’s ineffective assistance of counsel claim

should be denied on its merits and that Mullen procedurally defaulted his

other two claims in state court. (/d.) Mullen filed a reply brief on March 24,

2023, making the petition ripe for review. (See Doc. 11).

Il. |§ STANDARD OF REVIEW

A United States District Court “shall entertain an application for a writ

of habeas corpus in 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).

lll. DiscussioN

A. Fourth Amendment Claims

The court will first address Mullen’s claims that officers lacked a

warrant or probable cause to enter the home at 408 Anthony Street. The

gravamen of these claims is that law enforcement officials entering the home

without probable cause or a warrant violated the Fourth Amendment.

Respondents contend that Mullen procedurally defaulted these claims.

The court need not address respondents’ procedural default argument

because, regardless of whether the claims were procedurally defaulted in

state court, they do not present a cognizable claim for habeas corpus relief

in federal court. Where a state “has provided an opportunity for full and fair

litigation of a Fourth Amendment claim, a state prisoner may not be granted

federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” Stone v.

Powell, 428 U.S. 465, 495 (1976): accord Marshall v. Hendricks, 307 F.3d

36, 81 (3d Cir. 2002). Mullen has not advanced any arguments that he was

deprived of a full and fair opportunity to litigate his Fourth Amendment claims

in state court, and it appears that he was given such an opportunity when he

was allowed to file a motion to suppress the evidence and afforded a hearing

on that motion. See, e.g., United States ex rel. Petillo v. State of New Jersey,

562 F.2d 903, 907 (3d Cir. 1977) (holding that petitioner had full and fair

opportunity to challenge evidence where he filed motion to suppress and his

habeas corpus claim merely challenged a factual fincincgy made by the trial

court during the resulting suppression hearing). This court will accordingly

deny relief on the Fourth Amendment claims because they are barred by

Stone and its progeny.

B. Ineffective Assistance of Counsel

Mullen’s ineffective assistance of counsel claim was decided on the

merits in state court and is accordingly governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA’), which states in relevant part:

(d) 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 with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim—

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. §2254(d).

The standard for obtaining habeas corpus relief under AEDPA is

“difficult to meet.” Mays v. Hines, 592 U.S. 385, 391 (2021) (quoting

Harrington v. Richter, 562 U.S. 86, 102 (2011)). Federal habeas corpus relief

is meant to guard against “extreme malfunctions in the state criminal justice

systems” and is not meant to substitute for “ordinary error correction through

appeal.” Harrington, 562 U.S. at 102-03 (citing Jackson v. Virginia, 443 U.S.

307, 332 n.5 (1979) (Stevens, J. concurring in judgment)). “Federal habeas

courts must defer to reasonable state-court decisions,” Dunn v. Reeves, 594

U.S. 731, 733 (2021), and may only grant habeas corpus relief when the

state court’s decision “was so lacking in justification” that its error was

“beyond any possibility for fairminded disagreement.” Mays, 592 U.S. at 391

(quoting Harrington, 562 U.S. at 102). When a claim has been decided on its

merits in state court, federal court review of the claim is “limited to the record

that was before the state court that adjudicated the claim on the merits.”

Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

To obtain habeas corpus relief based on ineffective assistance of

counsel, petitioners must show (1) that counsel’s representation fell below

an objective standard of reasonableness and (2) that counsel’s deficient

performance caused prejudice to the petitioner. Strickland v. Washington,

466 U.S. 668, 687 (1984). The court’s analysis as to whether counsel's

performance was deficient must be “highly deferential” to counsel, and the

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

the wide range of reasonable professional assistance.” /d. at 689.

The court’s analysis is “doubly deferential” when a state court has

already decided that counsel's performance was adequate. Dunn, 594 U.S.

at 739. The court must apply a high level of deference both to counsel's

actions and to the state court's determination that counsel's actions were

constitutionally adequate. /d.; Knowles v. Mirzayance, 556 U.S. 111, 123

(2009) (citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)). The federal

court may only grant habeas relief if “every ‘fairminded jurist’ would agree

that every reasonable lawyer would have made a different decision.” Dunn,

594 U.S. at 740 (emphasis in original) (quoting Harrington, 562 U.S. at 101).

Mullen’s ineffective assistance of counsel claim asserts that his trial

and direct appeal counsel were ineffective for failing to preserve his

arguments for suppression of the evidence seized from his home. (Doc. 1 at

5). The Superior Court considered this claim on its merits and denied it,

concluding that Mullen did not show that he suffered prejudice from counsel's

purportedly deficient representation. Mullen, 267 A.3d at 512. The court

noted that the underlying argument was that suppression of the evidence

seized from the home was required by the Pennsylvania Supreme Court’s

decision in Commonwealth v. Romero, 183 A.3d 364 (Pa. 2018). The court

concluded that the facts of Mullen’s case were distinguishable from Romero

because Romero “addressed the rights of third parties who were not the

subject of an arrest warrant.” Mullen, 267 A.3d at 516. The court concluded

that, contrary to Mullen’s argument, the facts of the case were governed by

Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982). Mullen, 267 A.3d at

516. The court explained:

Here, as in Stanley, police had a valid arrest warrant for

Appellant. Agent Barvitskie testified that he received an

anonymous tip that Appellant was at 408 Anthony Street in

Williamsport the night before. When agents arrived at 408

Anthony Street shortly after receiving the tip, Agent Barvitskie

personally observed Appellant through the window. Under

Stanley, a valid arrest warrant and Agent Barvitskie's reasonable

belief that Appellant was inside were all that the agents needed

to enter the third-party residence for purposes of protecting

Appellant's Fourth Amendment rights.

id. The court then concluded that suppression of the evidence would not be

required under the standards set forth in Sfan/ey and that Mullen therefore

could not establish prejudice for counsel’s purportedly deficient

representation. /d. at 516-17.

The Superior Court’s conclusion that Mullen could not establish

prejudice because Romero addresses only the rights of third parties and not

the subjects of arrest warrants effectively ends this court’s analysis. “[A] state

court’s interpretation of state law, including one announced on direct appeal

of the challenged conviction, binds a federa! court sitting in habeas corpus."

Bradshaw v. Rickey, 546 U.S. 74, 76 (2005). Concluding that Mullen suffered

prejudice from counsel’s failure to preserve his suppression arguments

would require this court to interpret Romero in a way that differs from the

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Superior Court's interpretation of Romero. This the court may not do.' See

Bradshaw, 546 U.S. at 76. Furthermore, even if the court could interpret

Romero differently from the Superior Court’s interpretation, habeas corpus

relief would still not be warranted: the Superior Court’s ultimate conclusion

that Mullen did not suffer any prejudice is neither contrary to, nor an

unreasonable application of, clearly established federal law under Strickland

and its progeny. The court will accordingly defer to the Superior Court’s

conclusion that Mullen’s ineffective assistance of counsel claim fails for his

inability to establish prejudice and deny the claim.

The court acknowledges that the Superior Court was interpreting Romero,

which itself was interpreting the Fourth Amendment to the United States

Constitution. Although the Fourth Amendment is obviously federal law, the

derivative question of how to properly interpret the holding of a Pennsylvania

Supreme Court decision appears to be a question of state law because the

effect of the holding is to control the analyses of future decisions by lower

Pennsylvania courts. AEDPA does not “permit federal judges to casually

second-guess the decisions of their state-court colleagues or defense

attorneys.” Collins v. Sec’y of Pa. Dep’t of Corrs., 742 F.3d 528, 543 (3d Cir.

2014) (interna! alterations omitted) (quoting Burt v. Titlow, 571 U.S. 12, 15

(2013)). It is not the province of this court to tell the Pennsylvania Superior

Court how to interpret decisions of the Pennsylvania Supreme Court. See,

e.g., Taylor v. Horn, 504 F.3d 416, 448 (3d Cir. 2007) (noting that federal

habeas courts “have no supervisory authority over state judicial

proceedings.” (quoting Geschwenadt v. Ryan, 967 F.2d 877, 888-89 (3d Cir.

1992))).

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IV. CONCLUSION

For the foregoing reasons, the court will deny the petition for writ of

habeas corpus. 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.

Ke achy)E. Mannion □

United S ates District Judge

Dated: fo ftof24

22-953-D1

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