GAMBREL v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WILEY ESTILL GAMBREL, )

)

Petitioner, ) Civil Action No. 21-888

)

v. ) District Judge Arthur J. Schwab

) Magistrate Judge Maureen P. Kelly

ATTORNEY GENERAL OF THE STATE )

OF PENNSYLVANIA; ) Re: ECF No. 1

DISTRICT ATTORNEY OF FAYETTE )

COUNTY; and )

SUPERINTENDENT OF SCI HOUTZDALE _ )

)

Respondents. )

REPORT AND RECOMMENDATION

IL RECOMMENDATION

For the reasons that follow, it is respectfully recommended that the Petition under

28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition’”),

ECF No. 1, be denied. It is further recommended that a certificate of appealability be denied.

I. REPORT

Wiley Estill Gambrel (“Petitioner”) is a state prisoner currently incarcerated at the State

Correctional Institution at Houtzdale (“SCI-Houtzdale’’), in Houtzdale, Pennsylvania.

Petitioner initiated the instant federal habeas corpus proceeding by submitting the Petition,

which was received by this Court on July 12, 2021. Id. at 1. The Petition included a certificate of

service dated July 4, 2021, which is the presumptive effective filing date under the prisoner

mailbox rule. Id. at 24. See also Burns v. Morton, 134 F.3d 109, 113 Gd Cir. 1998).

A. Factual Background and Procedural History

The Pennsylvania Superior Court summarized the factual background of the crimes of

which Petitioner was convicted as follows.

On July 17, 2017, [Appellant] went to the residence of James Plance

(hereinafter Victim) and his girlfriend, Deana Hughes located at 280

Ringer Road, Georges Township, Fayette County Pennsylvania.

Once at the residence, the three individuals began to imbibe alcohol

and use crack cocaine. The individuals continued indulging in these

activities until the early morning hours of July 18, 2017.

Hughes testified that in the early hours of July 18, 2017, Victim and

Hughes were in the kitchen of the residence while [Appellant] was

outside at his van; Hughes stated that [Appellant] walked in with a

firearm and pointed it at Victim. [Appellant] allegedly shot Victim

once in the head; then Hughes and [Appellant] wrapped the corpse

in a tarp, put it in a box and transported the corpse to [Appellant's]

garage located at 3540 Morgantown Road, Georges Township,

Fayette County Pennsylvania. [Appellant] and Hughes then returned

to the residence and attempted to clean up Victim's blood that was

left in the kitchen. After the attempted cleaning, Hughes asked to be

taken to her aunt's residence and [Appellant] complied. Once at her

aunt's residence, the police were contacted and informed of the

events that transpired.

After his apprehension, [Appellant] was transported to the

Uniontown State Police Barracks and taken into an interview room

for the purposes of questioning. [Appellant] was read his Miranda

rights at 14:18 on July 18, 2017, and at this time, he requested a

lawyer. Trooper Sizer then asked [Appellant] preliminary questions

as well as public safety questions, such as, where the firearm was

located. [Appellant] indicated that the firearm was in his van.

[Appellant] was then escorted from the interview room and made

aware of possible charges against him; at this point, [Appellant]

changed his mind and decided that he wished to waive his right to

an attorney. [Appellant] was then re-read his Miranda rights at

14:30, at that time he signed the waiver for said rights and began

talking to Troopers Sizer and Mrosko where he made a full, detailed,

confession where he admitted that he shot the Victim.

Com. v. Gambrel, No. 719 WDA 2021, 2022 WL 2952334, at *1 (Pa. Super. Ct. Jul. 26, 2022)

(emphasis and brackets as in the Superior Court’s opinion, internal footnote omitted).

Following a jury trial in the Court of Common Pleas of Fayette County, Pennsylvania,

Petitioner was convicted of the following crimes:

e Murder of the Third Degree, in violation of 18 Pa. C.S.A. § 2502(c);

e Abuse of a Corpse, in violation of 18 Pa. C.S.A. § 5510;

e Tampering with or Fabricating Physical Evidence, in violation of 18 Pa. C.S.A. §

4910(1); and

e Possession of a Firearm by a Prohibited Person, in violation of 18 Pa. C.S.A. §

6105(a)(1).

ECF No. 1 at 1; ECF No. 22-12 at 2-9. See also Docket, Com. v. Gambrel, No. CP-26-CR-1777-

2017 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-26-

CR-0001777-2017&dnh=rUmex8E W9kSPROQS5d9RH8g%3D%3D (last visited Nov. 7, 2024)).

On July 18, 2018, Petitioner was sentenced to an aggregate term of imprisonment of 24 to 48 years

for these convictions. ECF No. 22-12.

Petitioner filed a Notice of Appeal to the Pennsylvania Superior Court on August 28, 2018,

ECF No. 22-13 at 2-3, followed by a statement of concise issues on appeal on September 17, 2018,

ECF No. 22-14 at 2, attacking the sufficiency and weight of the evidence supporting the conviction.

Id. Specifically, he identified two issues.

I. Whether the evidence was legally and factually sufficient to prove

that [Gambrel] committed the crime of murder in the third degree

when the Commonwealth failed to prove, beyond a reasonable

doubt, that [Gambrel] killed the victim, James Plance, or in the

alternative, that [Gambrel] acted with malice aforethought.

II. Whether the verdict as to murder of the third degree was against

the weight of the evidence when the verdict was so contrary to the

evidence as to shock one's sense of justice.

Com v. Gambrel, No. 1228 WDA 2018, 2019 WL 252615, at *2 (Pa. Super. Ct. June 19, 2019).

On direct appeal, Petitioner was represented by the same attorney who represented him at trial.

ECF No. 22-14 at 2.

The trial court issued a Statement in Lieu of Opinion on October 22, 2018, in which it

opined why Petitioner’s direct appeal should be denied. ECF No. 22-15 at 2 and 6. The Superior

Court affirmed Petitioner’s convictions on June 19, 2019. Gambrel, 2019 WL 252615, at *1.

Petitioner filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court

on July 15, 2019. ECF No. 22-17 at 2. Allocatur was denied on January 7, 2020. ECF No. 22-18

at 2. The record does not indicate that Petitioner sought a writ of certiorari from the United States

Supreme Court. Thus, his convictions became final on April 6, 2020 — 90 days after the denial of

allocatur. U.S. Sup. Ct. R. 13.

Prior to this date, however, on March 2, 2020, Petitioner constructively filed a pro se

Petition for Post-Conviction Relief under the Pennsylvania Post Conviction Relief Act (“PCRA”),

42 Pa. C.S.A. § 9541 et seq. ECF No. 22-19 at 1 and 20. See also Com. v. Little, 716 A.2d 1287,

1288-89 (Pa. Super. Ct. 1998) (so-called “prisoner mailbox rule” applies to PCRA petitions). Soon

thereafter, Petitioner obtained counsel, who filed an Amended Post-Conviction Relief Act Petition

(“Amended PCRA Petition”) on April 15, 2020. ECF No. 22-20 at 2 and 17.

The PCRA trial court held a hearing on Petitioner’s PCRA claims on September 30, 2020,

at which testimony was taken from Petitioner, as well as from the attorney who had represented

him both at trial and on direct appeal. See PCRA Hr’g Tr. dated Sept. 30, 2020, ECF No. 22-21.

The trial court filed an Opinion and Order denying PCRA relief as to all claims in the Amended

PCRA Petition on January 5, 2021. ECF No. 22-22.

Petitioner appealed the denial of PCRA relief on June 22, 2021.' ECF No. 22-23 at 3. He

filed a Concise Statement of Issues on Appeal on the same date. ECF No. 22-24 at 3. Petitioner

raised the following issues in his PCRA appeal.

1. Whether Appellant's legal counsel, Michael Aubele, Esq., was

ineffective for failing to develop the argument that Appellant

fabricated his police statement because he believed he had cancer?

' Petitioner moved for leave to file a notice of appeal nunc pro tunc on June 14, 2021, which was

granted on June 17, 2021. Docket, Gambrel, No. CP-26-CR-1777-2017.

2. Whether Attorney Aubele was ineffective for failing to object to

hearsay statements made by Christina Rohaley?

3. Whether Attorney Aubele was ineffective for failing to appeal the

trial court's denial to suppress Appellant's statement to Corporal

Thomas Ulintz?

4, Whether Attorney Aubele was ineffective for failing to appeal the

trial court's denial of the objection that various photographs were

more prejudicial than probative?

5. Whether Attorney Aubele was ineffective for failing to appeal the

trial court's ruling that Appellant could not publish certain

photographs of the basement of the residence where the shooting

occurred?

6. Whether Attorney Aubele was ineffective for failing to appeal the

trial court's denying the objection that the District Attorney's

questioning of the Appellant about the two shot guns constitute facts

not in evidence?

7. Whether Attorney Aubele was ineffective for causing the

Appellant to tell the jury that he was being housed in the Fayette

County Prison?

Gambrel, 2022 WL 2952334, at *2-3 (renumbered from, but substantially identical to, the issues

raised in the Concise Statement of Issues on Appeal, ECF No. 22-24).

On July 26, 2022, the Superior Court affirmed the denial of PCRA relief. Id. at *1. There

is no indication in the record that Petitioner sought allowance to appeal from the Pennsylvania

Supreme Court.

B. Federal Habeas Petition

Petitioner raises the following grounds for federal habeas relief in the Petition.

GROUND ONE: Mr. Gambrel was denied fundamental fairness, the presumption of

innocence, and due process when the state court denied relieve there the

evidence failed to meet the Commonwealth’s burden of proof beyond a -

reasonable doubt that Mr. Gambrel killed the victim and acted with

malice aforethought, thus in violation of the Sixth and Fourteenth

Amendments.

GROUND TWO: Trial counsel rendered ineffective assistance pursuant to the Strickland

standard and the Sixth Amendment:

a) Failure to develop argument at trial of fabricated statement by Mr.

Gambrel based upon his belief he had cancer.

b) Failure to object to hearsay statements made by Christina Rohaley.

c) Failure to appeal the court’s denial of objection that various

photographs were more prejudicial than probative.

d) Failure to appeal court’s denial of suppression of statement to

Corporal Thomas Ulintz.

e) Failure to appeal court’s ruling defense could not publish certain

photos of the basement of residence where shooting occurred.

f) Causing Mr. Gambrel to admit to jury that he was confined in Fayette

County Prison, thus, Sixth Amendment violation.

g) Failure to appeal court’s denial that District Attorney’s questioning

of two shot guns of Mr. Gambrel found at his residence constitutes facts

not evidence.

h) Failure to request instruction on lesser-included offense.

i) Failure to challenge the competency of Mr. Gambrel prior to trial.

GROUND THREE: Commonwealth committed prosecutorial misconduct by failing to

correct false testimony by its witness.

ECF No. 1 at 21-23 (renumbered, formatted, and cleaned up for clarity).

Petitioner raised additional issues in his Traverse and in the briefing in support of his

Request for Evidentiary Hearing. ECF Nos. 30, 36, and 56. They are:

e Petitioner’s direct appeal counsel was ineffective for failing to appeal the denial of

Petitioner’s motion to suppress his confession to Troopers Sizer and Mrosko, which

he alleges was obtained in violation of Miranda v. Arizona, 384 U.S. 435 (1966)?

? Petitioner’s statement to Corporal Ulintz, which underlies the ineffective assistance of counsel

claim at Ground 2.d of the Petition, occurred at the time of his arrest. As best as the undersigned

can discern, it is separate from the Miranda argument raised in his Request to Evidentiary hearing.

See Gambrel, 2022 WL 2952334, at *6 (“Appellant argues that Attorney Aubele was ineffective

for failing to appeal the denial of the motion to suppress Appellant's statement to Corporal Thomas □

Ulintz of the Pennsylvania State Police that ‘[n]obody [was present in the garage of his workshop]

(continued . . .)

ECF No. 35 at 2. See also ECF No. 30 at 9 and ECF No. 56 at 5 and 14-15.

e Both the prosecution and defense counsel should have further investigated Deana

Hughes, who Petitioner asserts is the real murderer. ECF No. 56 at 10-12.

e Petitioner’s conviction was a grave injustice. Id. at 8.

e Counsel’s failure to develop the record during Petitioner’s PCRA proceeding

constitutes “cause” to set aside procedural default under Martinez v. Ryan, 566 U.S.

1 (2012). ECF No. 57 at 6.

On July 12, 2021, Petitioner moved to stay this federal habeas case while he exhausted

remedies in state court. ECF No. 4. That motion was granted on July 13, 2021, and Petitioner was

ordered to move to lift the stay no later than 60 days after the conclusion of his state court

proceedings. ECF No. 5.

The public record reveals that, on July 26, 2022, the Pennsylvania Superior Court affirmed

the denial of PCRA relief. See Gambrel, 2022 WL 2952334, at *1. There is no indication that

Petitioner sought leave to appeal the Superior Court’s PCRA decision. Thus, Petitioner’s

proceedings in state court ended on August 25, 2022 — the conclusion of the 30-day period of time

for him to seek leave to appeal from the Pennsylvania Supreme Court. Pa. R.A.P. 1113.

As such, were Petitioner to have complied with this Court’s Order at ECF No. 5, he would

have moved to lift the stay within 60 days of August 25, 2022 - or by October 24, 2022. But he

did not. Instead, Petitioner did not seek to reopen this case until March 9, 2023 — 136 days late.

ECF No. 6 at 4.

that is alive at least.’ N.T., 7/10/18, at 47. Appellant made this statement upon being detained by

Corporal Ulintz outside of the garage and patted down for weapons; Corporal Ulintz asked

Appellant ‘if anything was in there’ in reference to Appellant's right pocket, and Appellant

responded ‘nobody that is alive at least.’ Id. at 45-47. Corporal Ulintz then asked him to clarify

his statement and Appellant said, ‘I thought you were talking about inside the garage, not inside

my pocket.’ Jd. at 47-48. Corporal Ulintz did not further inquire as to who might be inside the

garage. Id. at 48.”).

In spite of Petitioner’s tardiness, the stay of this case was lifted on March 15, 2023, ECF

No. 8, and service was ordered the following day, ECF No. 9. After one missed deadline and two

extensions of time, Respondents answered the Petition on July 19, 2023. ECF No. 22. Petitioner

filed his Traverse on September 6, 2023. ECF No. 30. The Petition is ripe for adjudication.

C. Procedural Issues

Before this Court addresses the merits of Petitioner’s federal habeas claims, it will address

whether the Petition fulfills the applicable procedural requirements, as set forth in the

Antiterrorism and Effective Death Penalty Act of 1996 (““AEDPA”).

1. The AEDPA statute of limitations

The first consideration in reviewing a federal habeas corpus petition is whether the petition

was timely filed within the applicable statute of limitations. In 1996, Congress enacted the

AEDPA, which generally established a strict one-year statute of limitations for the filing habeas

petitions pursuant to 28 U.S.C. § 2254. The applicable portion of the statute is as follows:

(d)(1) 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.

(2) 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.

28 U.S.C. § 2244(d).

The United States Court of Appeals for the Third Circuit has held that the statute of

limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner,

379 F.3d 113, 122 (3d Cir. 2004), cert. denied sub nom. Fielder v. Lavan, 543 U.S. 1067 (2005).

Thus, in analyzing whether a petition for writ habeas corpus has been timely filed under the

one-year limitations period, a federal court must undertake a three-part inquiry. First, the court

must determine the “trigger” date for the individual claims raised in the petition. Typically, this

is the date that the petitioner’s direct review concluded and the judgment became “final” for the

purposes of triggering the one-year period under Section 2244(d)(1)(A). Second, the court must

determine whether any “properly filed” applications for post-conviction or collateral relief were

pending during the limitations period that would toll the statute pursuant to Section 2244(d)(2).

Third, the court must determine whether any other statutory exception or equitable tolling should

be applied based on the facts presented. See, e.g., Munchinski v. Wilson, 807 F. Supp. 2d 242,

263 (W.D. Pa. 2011), affid, 694 F.3d 308 (3d Cir. 2012) (citing Nara v. Frank, No 99-5, 2004 WL

825858, at *3 (W.D. Pa., Mar. 10, 2004)).

a. Delay in request to lift the stay

Here, Respondents initially asserted that the entire Petition was untimely because

Petitioner’s Motion to Lift Stay was filed outside of the 60 days that Petitioner was given to do so.

ECF No. 22 at 7. However, in their Response to Motion for Hearing, ECF No. 51, Respondents

changed their argument. Now, they argue that, because Petitioner filed his PCRA petition prior to

his conviction becoming final, the AEDPA clock did not begin running until August 25, 2022 —

30 days after the Superior Court affirmed the denial of PCRA relief, and the deadline by which

Petitioner could have, but did not, file a petition for allowance to appeal to the Pennsylvania

Supreme Court. Id. at 18. Respondents concede that, since Petitioner moved to lift the stay less

than one year after that date, the Petition, as filed at ECF No. 1, is timely. Id. at 18-19. A review

of the record, as set forth above, supports this conclusion. Therefore, Petitioner’s claims in the

instant Petition are timely.

b. Miranda claim raised in the Traverse

Respondents argue that, because Petitioner did not assert his new Miranda claim until he

filed his Traverse — which they say was September 6, 2023, but which is entitled to an effective

filing date of August 28, 2023, under the prisoner mailbox rule, see ECF No. 30 at 12 — the Miranda

claim is untimely under AEDPA because it was filed more than one year after August 24, 2022 —

albeit only by four days. ECF No. 51 at 19 and n.2

Respondents do not address whether tolling would be appropriate here. And in this case,

this Court is inclined to presume that equitable tolling is appropriate for the 60-day period that

Petitioner was given to reopen this case in the Order dated July 13, 2021, which would push the

end of the AEDPA’s statute of limitations to October 24, 2023. ECF No. 5. Additionally,

Petitioner claims that he did not receive the PCRA Superior Court’s opinion of July 26, 2022, until

sometime more than 60 days after it was issued — although he does not state specifically when he

received the opinion. ECF No. 30 at 3-4. But, even presuming that he received the PCRA Superior

Court’s order on the date that it was issued, tolling the statute of limitations for the 60 days

10

contemplated in this Court’s Order dated July 13, 2021, ECF No. 5, would result in the newly

asserted Miranda claim being well within the statute of limitations.

However, there are other issues that affect the Miranda claim that will be discussed in more

detail below. Ultimately, it is unnecessary to decide whether the Miranda claim is timely.

c. Failure to investigate claim as to Deana Hughes

Even so, Petitioner is not so fortunate with respect his claim that Deana Hughes was

insufficiently investigated by the prosecution and his own trial counsel. ECF No. 56 at 11. To the

extent that this is a federal constitutional claim, and was properly raised under Rule 2(c) of the

Rules Governing Section 2254 Cases, it was first asserted in Petitioner’s Reply to his Request for

Hearing, which was effectively filed on August 6, 2024. Id. at 18. This is almost one year after

the October 25, 2023 statute of limitations deadline even with the tolling discussed above.

Accordingly, Petitioner’s failure to investigate claim is time-barred, and should be dismissed.?

See, e.g., Mayle v. Felix, 545 U.S. 644, 650 (2005) (“An amended habeas petition, we hold, does

not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground

for relief supported by facts that differ in both time and type from those the original pleading set

forth.”).

The statute of limitations also may be tolled if a petitioner establishes that he is actually

innocent of the charges of which he has been convicted. McQuiggan v. Perkins, 569 U.S. 383,

398-99 (2013) (recognizing an actual innocence exception to the AEDPA’s statute of limitations).

That said, the Supreme Court cautions “that tenable actual-innocence gateway pleas are rare: *[A]

petitioner does not meet the threshold requirement 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

3 For the reasons stated below, it also is procedurally defaulted.

© 11

areasonable doubt.’” Id. at 386 (quoting Schlup v. Delo, 513 U.S. 290, 329 (1995)). “The gateway

should open only when a petition presents ‘evidence of innocence so strong that a court cannot

have confidence in the outcome of the trial unless the court is also satisfied that the trial was free

of nonharmless constitutional error.’” Id. at 401 (quoting Schlup, 513 U.S. at 316). “‘[T]he timing

of the [petition]’ is a factor bearing on the ‘reliability of th[e] evidence’ purporting to show actual

innocence.” Id. at 386-87 (quoting Schlup, 513 U.S. at 332).

Petitioner generally asserts his actual innocence. ECF No. 56 at 3. But he has not asserted

the existence of new, reliable evidence of his factual innocence. Instead, as best as the undersigned

can tell from his filings, he attempts to rehash evidence that already was considered by the state

trial court, or to present evidence that would support the conclusion that his confession should

have been suppressed. This is not the type of evidence considered in Schlup. Therefore, the actual

innocence exception does not save this untimely claim.

2. Exhaustion and procedural default

The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state

prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To

comply with the exhaustion requirement, a state prisoner first must have fairly presented his

constitutional and federal law issues to the state courts through direct appeal, collateral review,

state habeas proceedings, mandamus proceedings, or other available procedures for judicial

review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Doctor v. Walters, 96 F.3d 675,

678 (3d Cir. 1996) (abrogated on other grounds by Beard v. Kindler, 558 U.S. 53, 60-61 (2009));

Burkett v. Love, 89 F.3d 135, 137 Gd Cir. 1996).

Moreover, a petitioner must present every claim raised in the federal habeas petition to the

state’s trial court, intermediate appellate court, and highest available court before exhaustion will

12

be considered satisfied. O’ Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Lambert v. Blackwell,

387 F.3d 210, 234 (3d Cir. 2004). A petitioner shall not be deemed to have exhausted state

remedies if he has the right to raise his claims by any available state procedure.

28 U.S.C. § 2254(c). The petitioner has the burden of establishing that the exhaustion requirement

has been met. Ross v. Petsock, 868 F.2d 639, 643 (3d Cir. 1989); O’Halloran v. Ryan, 835 F.2d

506, 508 (3d Cir. 1987). In the case at bar, it is clear that all of Petitioner’s claims are exhausted

at the state court level at the very least in the sense that there is no state avenue for relief available

to him due to the PCRA’s one-year statute of limitations. See 42 Pa. C.S.A. § 9545(b).

However, beyond the question of exhaustion, a federal court may be precluded from

reviewing habeas claims under the “procedural default doctrine.” Gray v. Netherland, 518 U.S.

152, 162 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor, 96 F.3d at 678;

Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). This doctrine is applicable where, inter alia,

a petitioner’s claims are “deemed exhausted because of a state procedural bar[.]” Lines v. Larkin,

208 F.3d 153, 160 (3d Cir. 2000). Like the exhaustion requirement, the procedural default doctrine

was developed to promote our dual judicial system. In turn, it is based upon the “independent and

adequate state law sounds” doctrine, which dictates that federal courts will not review a state

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

that is “independent” of the federal question and “adequate” to support the judgment. Coleman,

501 U.S. at 750.

The PCRA’s one-year statute of limitations has been held to be an “independent and

adequate” state law ground for denying federal habeas relief. Whitney v. Horn, 280 F.3d 240, 251

(3d Cir. 2002). So too has the requirement under 42 Pa. C.S.A. § 9544(b) that “an issue is waived

if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review,

13

on appeal or in a prior state postconviction proceeding.” Garcia v. Adams, No. 17-CV-5249, 2019

WL 8015127, at *6 (E.D. Pa. Aug. 27, 2019), report and recommendation adopted, 2020 WL

868200 (E.D. Pa. Feb. 20, 2020), aff'd sub nom. Garcia v. Sup’t Forest SCI, No. 20-1570, 2022

WL 1153122 (3d Cir. Apr. 19, 2022) (citing cases).

Here, the following grounds for relief asserted by Petitioner are defaulted because he did

not present them in his direct appeal or his PCRA appeal, as required under state law, and cannot

do so now.

e Ground 2.h, that trial counsel was ineffective for failing to request an instruction

on a lesser included offense, ECF No. 1 at 22;

e Ground 2.i, that trial counsel was ineffective for failing to challenge Petitioner’s

competency prior to trial, ECF No. 1 at 23;

e Ground 3, that the prosecution committed misconduct by failing to correct false

testimony by its witnesses, id.;

e Petitioner’s Miranda claim raised in his Traverse, ECF No. 30 at 6; and

e Petitioner’s claim that the prosecution and his own trial counsel failed to investigate

Deana Hughes adequately, raised in his Reply to his Request for Evidentiary

Hearing, ECF No. 56 at 11.

Petitioner argues that his default should be set aside as to the Miranda claim based on the

Supreme Court’s holding in Martinez v. Ryan, 566 U.S. 1 (2012). ECF No. 30 at 9. He does not

appear to apply this argument to any other defaulted claim in his briefing. See, generally,

ECF Nos. 1, 30, 25, and 56. Further, Petitioner also asserts his innocence — presumably in an

attempt to invoke the miscarriage of justice exception. ECF No. 30 at 9 and 11; ECF No. 56 at

5-7. Both of these arguments will be discussed below.

The United States Supreme Court has held that where a petitioner has to follow state

procedure within the required time period, the “federal habeas review of the claims is barred unless

the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged

14

violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Wainwright v. Sykes,

433 U.S. 72, 86-87 (1977) (failure to follow state’s procedural rules results in procedural default,

which bars federal review of petitioner’s claims unless he can show cause and prejudice); Hull v.

Freeman, 991 F.2d 86, 90-91 (3d Cir. 1993) (same). Petitioner argues that his PCRA counsel’s

failure to raise the Miranda claim ~ and presumably the prosecutorial misconduct argument —

qualifies as “cause” under Martinez. ECF No. 56 at 6.

In Martinez, the United States Supreme Court created a limited equitable rule wherein

ineffective assistance of post-conviction counsel can establish cause to set aside the default of “a

substantial claim of ineffective assistance at trial[.]”’ 556 U.S. at 17. The Martinez exception

applies only under specific circumstances where post-conviction counsel is ineffective for failing

to raise such a claim on collateral review. As this Court has previously explained:

The decision of the United States Supreme Court in Martinez v.

Ryan created a sea change in the doctrine of procedural default,

holding for the first time that a claim of ineffective assistance of

post-conviction relief counsel could serve as cause to excuse the

procedural default of a claim of trial counsel's ineffectiveness.

However, the Supreme Court in Trevino v. Thaler, 133 S.Ct. 1911,

1918 (2013) explained that Martinez only permits a federal habeas

court to find “cause” based on post conviction counsel’s

ineffectiveness and “thereby excus[e] a defendant's procedural

default, where (1) the claim of ‘ineffective assistance of trial

counsel’ was a ‘substantial’ claim; (2) the ‘cause’ consisted of there

being ‘no counsel’ or only ‘ineffective’ counsel during the state

collateral review proceeding; (3) the state collateral review

proceeding was the ‘initial’ review proceeding in respect to the

‘ineffective-assistance-of-trial-counsel claim’; and (4) state law

requires that an ‘ineffective assistance of trial counsel [claim] ... be

raised in an _ initial-review collateral proceeding.”

Taylor v. Pennsylvania, No. 15-1532, 2018 WL 446669, at *9 (W.D. Pa. Jan. 16, 2018).

15

But the Martinez exception does not apply to claims of ineffective assistance of direct

appeal counsel. Davila v. Davis, 582 U.S. 521, 526-27 (2017). Thus, Petitioner’s argument that

appellate counsel was ineffective for failing to appeal the suppression issue because of alleged

Miranda violations cannot be saved from procedural default by Martinez. Additionally, Martinez

simply does not apply to Petitioner’s prosecutorial misconduct argument, or his assertion that the

prosecution should have investigated Deana Hughes more thoroughly. The same is true to the

extent that he directly attacks the trial court’s refusal to suppress his confession.

Martinez theoretically, may apply to Petitioner’s remaining defaulted claims at Grounds

2.h, 2.i, and his assertion that his counsel should have investigated Deana Hughes more thoroughly.

However, it is Petitioner’s burden under Martinez to establish that “the 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.” 566 U.S. at 14. But, Petitioner has failed to show

that these claim have “some merit” — especially in light of the evidence against Petitioner,

including his own confession to the murder. See, e.g., Buehl v. Vaughn, 166 F.3d 163, 172 □□□

Cir. 1999) (“It is firmly established that a court must consider the strength of the evidence in

deciding whether the Strickland [v. Washington, 466 U.S. 668 (1984)] prejudice prong has been |

satisfied.”). Thus, the Court can deny these claims as defaulted because it can conclude that they

are not “substantial” and PCRA counsel was not ineffective for failing to litigate them before the

PCRA court. Accordingly, Martinez does not establish cause for any of Petitioner’s defaulted

claims.

To the extent that Petitioner also invokes the miscarriage of justice exception, ECF No. 30

at 9 and 11; ECF No. 56 at 5-7, his argument fails for the same reason as discussed. above with

respect to the actual innocence exception to the statute of limitations. The United States Supreme

16

Court requires a petitioner to demonstrate that “a constitutional violation has probably resulted in

the conviction of one who is actually innocent.” Schlup, 513 U.S. at 321 (quoting Murray v.

Carrier, 477 U.S. 478, 496 (1986)). Under this standard, a petitioner must “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. Once such evidence is presented, a petitioner must show that “it is more

likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

Id. at 327. But “i]t is important to note in this regard that ‘actual innocence’ means factual

innocence, not mere legal insufficiency.” See Bousley v. United States, 523 U.S. 614, 623 (1998).

Here, as stated above, Petitioner has not asserted the existence of new, reliable evidence of

his factual innocence. Therefore, the miscarriage of justice exception does not provide a basis to

set aside Petitioner’s default of the identified claims.

D. Analysis of the Merits of the Remaining Claims

Where the state court has reviewed a federal issue presented to them and disposed of the

issue on the merits, and that issue also is raised in a federal habeas petition, the AEDPA provides

the applicable deferential standard by which the federal habeas court is to review the state court’s

disposition of that issue. 28 U.S.C. § 2254(d) and (e).

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court expounded

upon the standard found in 28 U.S.C. § 2254(d). The Supreme Court explained that Congress

intended that habeas relief for errors of law may only be granted in two situations: 1) where the

state court decision was “contrary to .. . clearly established Federal law as determined by the

Supreme Court of the United States” or 2) where that state court decision “involved an

17

unreasonable application of[] clearly established Federal law as determined by the Supreme Court

of the United States.” Id. at 404-05 (emphasis deleted).

A state court decision can be contrary to clearly established federal law in one of two ways.

First, the state courts could apply a wrong rule of law that is different from the rule of law required

by the United States Supreme Court. Second, the state courts can apply the correct rule of law but

reach an outcome that is different from a case decided by the United States Supreme Court where

the facts are indistinguishable between the state court case and the United States Supreme Court

case. Lambert, 387 F.3d at 234 (quoting Williams, 529 U.S. at 405-06).

In addition, the United States Court of Appeals for the Third Circuit has explained that

“Circuit precedent cannot create or refine clearly established Supreme Court law, and lower federal

courts ‘may not canvass circuit decisions to determine whether a particular rule of law is so widely

accepted among the Federal Circuits that it would, if presented to [the Supreme] Court, be accepted

as correct.’” Dennis v. Sec., Pa. Dep’t of Corrs., 834 F.3d 263, 368 (d Cir. 2016) (quoting

Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)). As the Supreme Court has further

explained: “[s]ection 2254(d)(1) provides a remedy for instances in which a state court

unreasonably applies this Court’s precedent; it does not require state courts to extend that

precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 572

USS. 415, 428 (2014).

The AEDPA also permits federal habeas relief where the state court’s adjudication of the

claim “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)(2).

Specific factual determinations by the state court that are subsidiary to the ultimate decision

to grant post-conviction relief are subject to the presumption of correctness, and must be overcome

18

by a petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Lambert, 387

F.3d at 235-236. The Third Circuit has declined to adopt a “rigid approach to habeas review of

state fact-finding.” Id. at 236n.19. Ifa state trial court and appellate court make conflicting factual

findings, the habeas court must defer to the findings of the higher court — regardless of the propriety

of those findings under state law — unless they are rebutted by clear and convincing evidence.

Rolan v. Vaughn, 445 F.3d 671, 680 (3d Cir. 2006).

It is a habeas petitioner’s burden to show that the state court’s decision was contrary to or

an unreasonable application of United States Supreme Court precedent and/or an unreasonable

determination of the facts. Ross v. Atty. Gen. of State of Pennsylvania, No. 07-97, 2008 WL

203361, at *5 (W.D. Pa. Jan. 23, 2008). This burden means that Petitioner must point to specific

case law decided by the United States Supreme Court and show how the state court decision was

contrary to or an unreasonable application of such United States Supreme Court decisions. Owsley

v. Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000) (“To obtain habeas relief, Mr. Owsley must

therefore be able to point to a Supreme Court precedent that he thinks the Missouri state courts

acted contrary to or unreasonably applied. We find that he has not met this burden in this appeal.

Mr. Owsley's claims must be rejected because he cannot provide us with any Supreme Court

opinion justifying his position.”); West v. Foster, No. 07-CV-00021, 2010 WL 3636164, at *10

n.20 (D. Nev. Sept. 9, 2010) (“petitioner’s burden under the AEDPA is to demonstrate that the

decision of the Supreme Court of Nevada rejecting her claim ‘was contrary to, or involved an

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

of the United States.’ 28 U.S.C. § 2254(d)(1) (emphasis added). Petitioner has not even begun to

shoulder this burden with citation to apposite United States Supreme Court authority.”), aff'd, 454

F. App’x 630 (9th Cir. 2011).

19

To the extent that a claim was fairly presented to the state courts but was not addressed on

the merits, de novo review applies. Cone v. Bell, 556 U.S. 449, 472 (2009). The same review

applies to a claim that resulted from a state court decision that was contrary to or an unreasonable

application of United States Supreme Court precedent and/or an unreasonable determination of the

facts. 28 U.S.C. § 2254(d)(1) and (2).

1. Ground One

At Ground One, Petitioner asserts:

Mr. Gambrel was denied fundamental fairness, the presumption of innocence, and due

process when the state court denied relieve there the evidence failed to meet the

Commonwealth’s burden of proof beyond a reasonable doubt that Mr. Gambrel killed the

victim and acted with malice aforethought, thus in violation of the Sixth and Fourteenth

Amendments.

ECF No. 1 at 21-22. This is properly construed as a sufficiency of the evidence claim directed

toward Petitioner’s conviction for third degree murder.*

Petitioner does not provide much elaboration, if any, as to this claim in the Petition. In his

Traverse, he generally asserts that the prosecution “failed to prove beyond a reasonable doubt that

the Petitioner murdered the victim, with malice.” ECF No. 30 at 8. He also argues that the

prosecution mischaracterized expert witness testimony in its closing arguments, and that the real

murderer was Deana Hughes. ECF No. 56 at 10-11.

To the extent that Petitioner argues issues of credibility, or raises other arguments that sound in

the weight of the evidence asserted against him, such a claim is not cognizable in a federal habeas

petition. Tibbs v. Florida, 457 U.S. 31, 37-45 (1982) (weight of evidence claims raise questions

of credibility; it is different from a claim that the evidence was insufficient to support the

conviction); McKinnon v. Sup’t, Great Meadow Corr. Fac., 422 F. App’x 69, 75 (2d Cir. 2011)

(“the argument that a verdict is against the weight of the evidence states a claim under state law,

which is not cognizable on habeas corpus[.]”); Stephenson v. Gilmore, No. 18-cv-1329, 2021 WL

3667904, at *14 (W.D. Pa. Feb. 23, 2021), report and recommendation adopted, 2021 WL 2882441

(W.D. Pa. July 9, 2021). Coates v. D.A. of Allegheny Cnty., No. 19-CV-804, 2022 WL 2251094,

at *7 (W.D. Pa. May 26, 2022), report and recommendation adopted, 2022 WL 2239202 (W.D.

Pa. June 22, 2022).

The clearly established federal law for analyzing a sufficiency of the evidence claim is set

forth in Jackson v. Virginia, where the United States Supreme Court held that “in a challenge to a

state 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 the trial no rational trier of fact could have

found proof of guilt beyond a reasonable doubt.” 443 U.S. 307, 324 (1979). In a federal habeas

corpus proceeding where the sufficiency of the evidence is in contention:

[T]he critical inquiry on review of the sufficiency of the evidence to

support a criminal conviction ... does not require a court to ask itself

whether it believes that the evidence at the trial established guilt

beyond a reasonable doubt.... Instead, the relevant question is

whether, after viewing the evidence in the light most favorable to

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

essential elements of the crime beyond a reasonable doubt.

Id. at 318-19 (internal citations omitted) (emphasis in original). See also Robertson v. Klem, 580

F.3d 159, 165 (3d Cir. 2009); Orban v. Vaughn, 123 F.3d 727, 731-33 (3d Cir. 1997).

In applying the Jackson standard, the reviewing court must consider each substantive

element of the criminal offense at issue as defined under state law. Coleman v. Jackson, 566 U.S.

650, 655 (2012); Jackson, 443 U.S. at 324, n.16. “While the elements of a criminal conviction are

to be defined by state law, a reviewing court’s determination of whether sufficient evidence was

produced to satisfy each element is governed by federal law.” Vaughter v. Fisher, No. 12-CV-

493, 2014 WL 1152540, at *15 (E.D. Pa. Mar. 24, 2014) (citing Coleman, 566 U.S. at 655). The

Jackson standard is “deferential[,]” and “leaves juries broad discretion in deciding what inferences

to draw from the evidence presented at trial, requiring only that jurors draw reasonable inferences

from basic facts to ultimate facts.”” Coleman, 566 U.S. at 655.

The United States Court of Appeals for the Third Circuit has found that the Pennsylvania

state law test for challenges to the sufficiency of the evidence is identical to the federal standard

set forth in Jackson. See Evans v. Court of Common Pleas, Delaware Cnty., 959 F.2d 1227, 1233

21

(3d Cir. 1992) (“the formulation of the Pennsylvania test for insufficiency of the evidence is almost

identical to that under federal law”).

The prosecution is required to prove the following elements beyond a reasonable doubt in

order to support a conviction of third degree murder under Pennsylvania law:

(1) that the defendant killed another person; and

(2) that the defendant killed with malice aforethought.

Gambrel, 2019 WL 2526157, at *2 (citing Com. v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013)).

[T]o convict a defendant of the offense of third[ ]degree murder, the

Commonwealth need only prove that the defendant killed another

person with malice aforethought. This Court has long held that

malice comprehends not only a particular ill-will, but ... [also a]

wickedness of disposition, hardness of heart, recklessness of

consequences, and a mind regardless of social duty, although a

particular person may not be intended to be injured.

Fisher, 80 A.3d at 1191 (internal quote and citation omitted).

That said, the specific intent to kill is not required to establish the mens rea for third degree

murder under Pennsylvania law. “[E]vidence of intent to kill is simply irrelevant to third degree

murder. The elements of third degree murder absolutely include an intentional act, but not an act

defined by the statute as intentional murder. The act sufficient for third degree is still a purposeful

one, committed with malice, which results in death[.]” Id. (emphasis in original). “[MJalice may

be inferred from the use of a deadly weapon on a vital part of the body.” Com. v. Seibert, 622

A.2d 361, 364 (Pa. Super. Ct. 1993) (internal citations omitted).

In the instant case, the Superior Court addressed Petitioner’s sufficiency of the evidence

claim on direct appeal as follows.

First, the Commonwealth presented more than enough evidence to

prove that Gambrel killed the victim. Gambrel admitted in his

confession that he shot the victim, and the forensic pathologist

testified that the victim died from a gunshot wound to the head. See

N.T., Trial, 7/11/18, at 37, 44; see also Commonwealth's Ex. B

22

(Transcription of Gambrel's Interview) at 47. Additionally, this

evidence is supported by testimony from Hughes, who was present

when the victim was shot in the head. See N.T., Trial, 7/10/18, at

121. Collectively, this evidence was sufficient to satisfy the first

element of third-degree murder, that Gambrel killed the victim.

Next, Gambrel claims that there was insufficient evidence to support

a finding of malice. He maintains that text messages between the

victim and Gambrel show “that the victim and [Gambrel] were ‘fine’

in the time period after the message was sent and received, and the

time of the shooting.” Gambrel's Br. at 9 (citing to N.T., 7/10/18, at

181). We are unpersuaded.

Here, the evidence was sufficient to support an inference of malice

because Gambrel used a deadly weapon on a vital part of the victim's

body. See Seibert, 622 A.2d at 364; see also Commonwealth vy.

Johnson, 42 A.3d 1017, 1026 (Pa. 2012) (stating injuries to vital

parts of victim's body included head and chest). Additionally,

viewing the evidence in the light most favorable to the

Commonwealth, Gambrel's actions were reckless. Prior to shooting

the victim in the head, the victim asked Gambrel, “[R]eally, are you

going to point that gun at me?” N.T., 7/10/18, at 120. In response,

Gambrel said “yes” and then proceeded to shoot the victim in the

head. Id. Thus, Gambrel's own statements express his reckless

behavior in killing the victim.

Viewing the evidence in the light most favorable to the

Commonwealth, the victim tried to end his friendship with Gambrel

in a text that read, “I think it best to end the friendship. Too much

shit going on with you. Sorry, don't know what else to do.” N.T.,

Trial, 7/13/18, at 92. Hughes testified that Gambrel and the victim's

friendship was okay after this message. N.T., 7/10/18, at 181. The

jury could disbelieve Hughes' testimony. Even if the jury believed

her testimony, this evidence all relates to a possible motive for the

killing and even in absence of any evidence of motive, the evidence

of malice was sufficient. Nonetheless, evidence that the victim and

Gambrel were “fine” prior to the shooting does not negate the

Commonwealth's evidence of malice. See Seibert, 622 A.2d at 366

(concluding that evidence of defendant's friendship with victim

“does not prove that Seibert's recklessness did not reach to the level

of malice” sufficient to prove third-degree murder). The evidence

was sufficient to prove malice. Thus, Gambrel's sufficiency claims

fail.

Gambrel, 2019 WL 2526157, at *2-3.

23

Here, after a thorough review of the record before this Court, the undersigned cannot

conclude that the Superior Court’s decision was contrary to, or an unreasonable application of the

Jackson standard, or was based on an unreasonable determination of the facts. Instead, the

Superior Court applied the evidence in the case to the elements of third degree murder, and

properly concluded under the Pennsylvania equivalent of the Jackson standard that it was sufficient

to support Petitioner’s conviction.

For the foregoing reasons, the request for federal habeas relief based on Ground One should

be denied.

2. Ground Two

At Ground Two, Petitioner asserts multiple bases for federal habeas relief grounded in the

alleged ineffective assistance of counsel.

Trial counsel rendered ineffective assistance pursuant to the Strickland standard

and the Sixth Amendment:

a) Failure to develop argument at trial of fabricated statement by Mr. Gambrel

based upon his belief he had cancer.

b) Failure to object to hearsay statements made by Christina Rohaley.

c) Failure to appeal the court’s denial of objection that various photographs were

more prejudicial than probative.

d) Failure to appeal court’s denial of suppression of statement to Corporal Thomas

Ulintz.

e) Failure to appeal court’s ruling defense could not publish certain photos of the

basement of residence where shooting occurred.

f) Causing Mr. Gambrel to admit to jury that he was confined in Fayette County

Prison, thus, Sixth Amendment violation.

g) Failure to appeal court’s denial that District Attorney’s questioning of two shot

guns of Mr. Gambrel found at his residence constitutes facts not evidence.

h) Failure to request instruction on lesser-included offense.

i) Failure to challenge the competency of Mr. Gambrel prior to trial.

24

ECF No. 1 at 22-23. As stated above at Part II.C.2, Grounds 2.h and 2.i are procedurally defaulted,

and their merits will not be addressed.

The Sixth Amendment right to counsel exists “in order to protect the fundamental right to

a fair trial.” Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland, 466 U.S. at 684).

The Supreme Court has formulated a two-part test for determining whether counsel rendered

constitutionally ineffective assistance: (1) counsel’s performance was unreasonable; and (2)

counsel’s unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687.

To determine whether counsel performed below the level expected from a reasonably competent

attorney, it is necessary to judge counsel’s challenged conduct on the facts of the particular case,

viewed at the time of counsel’s conduct. Id. at 690.

The first prong of the Strickland test requires a petitioner to establish that his or her

attorney’s representation fell below an objective standard of reasonableness by committing errors

so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment.

Id. at 688. A court 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 totality of the circumstances, the challenged action “might be considered sound trial

strategy.” Id. at 689. The question is not whether the defense was free from errors of judgment,

but whether counsel exercised the customary skill and knowledge that normally prevailed at the

time and place. Id. Instead, Petitioner is required to show “that counsel made errors so serious

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

Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2001) (quoting Strickland, 466 U.S. at

687).

25

The second prong of Strickland requires a petitioner to demonstrate that counsel’s errors

deprived him of a fair trial, and the result was unfair or unreliable. Strickland, 466 U.S. at 689.

To prove prejudice, a petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694.

A “reasonable probability” is one that is sufficient to undermine confidence in the outcome. Id.

In considering a claim of ineffectiveness of counsel, Pennsylvania uses a three-part

ineffectiveness test.

To plead and prove ineffective assistance of counsel a petitioner

must establish: “(1) that the underlying issue has arguable merit; (2)

counsel's actions lacked an objective reasonable basis; and (3) actual

prejudice resulted from counsel's act or failure to act.”

Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en

banc). The failure to meet any of these aspects of the ineffectiveness

test results in the claim failing. Id.

Future v. Ferguson, No. 16-2346, 2022 WL 2307095, at *8 (M.D. Pa. June 27, 2022), certificate

of appealability denied sub nom. Future v. Sup’t Benner Twp. SCI, No. 22-2419, 2022 WL

18536146, at *1 (3d Cir. Dec. 6, 2022). The United States Court of Appeals for the Third Circuit

has found this test not to be contrary to Strickland. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir.

2000).

In the instant case, the Superior Court applied Pennsylvania’s three-part test to Petitioner’s

exhausted claims of ineffective assistance of counsel. Gambrel, 2022 WL 2952334, at *3.

Accordingly, the Superior Court’s analysis was not contrary to Strickland.

The specifics of each of Petitioner’s exhausted ineffective assistance of counsel claims

under Ground Two will be addressed seriatim.

26

a. Ground 2.a: trial counsel’s alleged ineffectiveness for failing to develop

arguments that Petitioner had fabricated statements to police because he

believed that he had cancer.

The Superior Court addressed this claim in its opinion affirming the denial of PCRA relief

as follows.

Appellant first argues that Attorney Aubele was ineffective for

failing to develop the argument that Appellant fabricated his police

confession to protect Hughes—who he claimed to be the real

shooter—from prosecution because he believed at the time that he

had cancer and did not have long to live. While Appellant

acknowledges that Attorney Aubele mentioned the cancer diagnosis

during trial, Appellant contends that his trial counsel was ineffective

by “fail[ing] to repeatedly set forth this claim during the trial.”

Appellant's Brief at 14. Appellant asserts that there was no

reasonable basis for counsel's decision to raise the issue repeatedly

throughout the course of the trial and that this failure prejudiced him

as it was the central claim of his defense.

The PCRA court determined that this claim lacked arguable merit

because Attorney Aubele did in fact raise this issue during’ his

examination of Appellant and in his closing. PCRA Court Opinion,

1/5/21, at 4. The record supports the PCRA court's conclusion. As

Attorney Aubele explained at the PCRA hearing:

[O]ne of our defense strategies was that he had

thought he was dying, he was much older than

[Hughes] and that [ ] his thinking was that he was

going to cover for her in order to give her an

opportunity to live the rest of her life because he

thought that his was short lived.

N.T., 9/30/20, at 11.

After jury selection, Attorney Aubele made a motion in limine to

allow Appellant to testify regarding his belief that he had cancer—

in spite of the fact that he had never been diagnosed or treated for

cancer—to further the defense that his confession was false and

intended to protect Hughes. N.T., 7/9/18, at 17. Attorney Aubele

agreed not to raise the issue until Appellant's testimony. Id. The trial

court permitted the testimony but also ruled that the Commonwealth

could call rebuttal witnesses, including the doctor who treated him

while he was detained prior to trial, to rebut that Appellant ever had

cancer.® Id. at 17-20.

27

During the testimony of Trooper Richard Sizer, an audio tape of

Appellant's statement to police was played to the jury, wherein

Appellant stated that he had an appointment later on the day that

Victim was shot at the “cancer center” to check out “some masses

in my lungs.” N.T., 7/13/18, at 12; Transcript of Police Interview,

7/18/17, at 61.° On direct examination, Attorney Aubele inquired as

to Appellant's cancer screening scheduled for the day of Victim's

death. N.T., 7/13/18, at 74-75. Appellant testified that his “false

confession” to killing Victim was a result of a “medical issue that

[he] felt [he] might have” and the fact that he was almost 30-years

older than Hughes and he had less to live for. Id. at 78-79.

Furthermore, in closing arguments, Attorney Aubele stressed that

Appellant initially confessed to shooting Victim because “[h]e

thought he had cancer, and he wanted to protect” Hughes. N.T.,

7/16/18 (Closing Arguments), at 12. The record thus reflects that

Attorney Aubele adequately introduced evidence of Appellant's

belief that he had cancer and incorporated it into Appellant's defense

at trial.

[8] Although Appellant testified at trial regarding his belief that he

had cancer at the time of Victim's death, the Commonwealth did not

call any rebuttal witnesses.

[9] The transcript of the audio recording of Appellant's statement,

which was played at trial and had been previously transcribed, was

incorporated as an exhibit to the Notes of Testimony for the July 13,

2018 trial proceedings. See N.T., 7/13/18, at 13, Stenographer's

Exhibit 1.

Id. at *3-4 and nn. 8 and 9.

This Court interprets the Superior Court’s holding as finding that trial counsel did not

perform deficiently because he did, in fact, advance Petitioner’s argument that he fabricated his

confession because he believed that he had cancer. A review of the available record, as cited by

the Superior Court, supports the conclusion that its decision was not contrary to or an unreasonable

application of Strickland, nor based on an unreasonable determination of the facts. Accordingly,

Ground 2.a should be denied.

28

b. Ground 2.b: trial counsel’s alleged ineffectiveness for failing to object to

hearsay statements by Christina Rohaley.

Petitioner asserts that trial counsel was ineffective for failing to object to a hearsay

statement made by a prosecution witness at trial. ECF No. 1 at 22. Petitioner does not elaborate

much on the claim in his briefing before this Court, but the Superior Court characterized the issue

in his PCRA proceeding as follows.

Appellant next argues that Attorney Aubele was ineffective for

failing to object to hearsay statements by Christina Rohaley,

Hughes's cousin. Rohaley was present at her mother's house on July

18, 2018 when Hughes arrived from being dropped off by Appellant.

N.T., 7/9/18, at 57-58. On direct examination by the

Commonwealth, Rohaley testified that Hughes “said that

[Appellant] shot [Victim].” Zd. at 61. Rohaley then read her written

statement to the police into the record, in which she reported that:

[Hughes] said that [Victim] was getting ready to roll

a cigarette and [Appellant] walked outside to his van,

came back in with a gun and pointed it at [Victim].

[Victim] said, “Are you really going to point a gun at

me?” [Appellant] said, “Yes,” and pulled the trigger

and shot him in the head. She said that he put his

body into a box and cleaned up the mess and took his

body to his workshop.

Id. at 64. Attorney Aubele did not object to this testimony and

instead asked several questions to clarify that the written statement

accurately reflected what Hughes told Rohaley on the date that

Victim was shot. Id. at 64-67.

Appellant asserts that no hearsay exception exists that would have

permitted Rohaley's testimony and therefore a hearsay objection

would have been sustained. Appellant argues that Rohaley's

testimony was prejudicial because she was able to identify him as

Victim's killer even though she was not present at the time of the

shooting.

When asked about his rationale for not objecting to Rohaley's

testimony at the PCRA hearing, Attorney Aubele testified that:

[P]art of our defense strategy was that Deana Hughes

was the shooter and what Christina Rohaley was

testifying to might have been hearsay but it was

29

completely different than what Deana Hughes ended

up admitting to doing and what role she actually had

in this.

N.T., 9/30/20, at 12. Attorney Aubele explained that while Hughes

told her family that Gambrel did all of the cleaning of the blood after

the shooting and put the body in a box by himself, Hughes's account

to the police and her testimony at the preliminary hearing later

changed to her participating in the clean-up, assisting putting the

body in the box, and going with Appellant to his shop after the

shooting. Id. at 12, 25-26. Attorney Aubele asserted that Hughes's

inconsistent accounts undermined the credibility of her

identification of Appellant as the shooter at trial. Id.

_ We conclude that Attorney Aubele's decision to not object to

Rohaley's hearsay testimony was reasonably based upon his trial

strategy to attack the credibility of Hughes's testimony that

Appellant shot Victim. Hughes testified that, after the shooting, she

assisted in cleaning the Victim's blood, went with Appellant to the

workshop he used for his contractor business to get a box, and

helped in placing the box containing Victim's body into Appellant's

van. N.T., 7/10/18, at 127-34. Attorney Aubele extensively cross-

examined Hughes regarding the inconsistencies in her various

accounts of the events following the shooting of Victim, showing

that she had recounted the events differently at the preliminary

hearing and to the police. Zd. at 161-94. Furthermore, Attorney

Aubele vigorously attacked Hughes's credibility in his closing

argument, asserting that her recollection of the events of the

shooting “drastically changed” between her accounts to her family,

to the police, at the preliminary hearing, and then at trial. N.T.,

7/16/18 (Closing Arguments), at 5-9. Attorney Aubele's decision to

allow Rohaley to describe what Hughes told her about the shooting

thus added one more inconsistent statement by which he could

attack her credibility. Accordingly, Appellant is due no relief on this

issue.

Gambrel, 2022 WL 2952334, at *4-5 (footnote deleted).°

> The Superior Court agreed with Petitioner that Rohaley’s statement was hearsay, and not

admissible as a prior inconsistent statement. Id. at *5 n.10.

30

The undersigned interprets the Superior Court’s decision as a finding that trial counsel’s

performance was not deficient because it was in accordance with a reasonable strategy. After a

review of the record, this Court concludes that Petitioner has failed to meet his burden to show that

this conclusion was contrary to, or an unreasonable application of Strickland, or an unreasonable

determination of facts. Cf. Willgin v. Smith, 539 U.S. 510, 522 (2003) (“[S]trategic choices made

after thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable[]’””). Therefore, Ground 2.b should be denied.

c. Ground 2.c: counsel’s alleged ineffectiveness for failing to appeal the trial

court’s denial of an objection that various photographs were more

prejudicial than probative.

Petitioner does not provide substantial argument as to this claim in his filings. For their

part, Respondents explain that the photographs at issue were of the victim’s body, and argue that

they were probative because they were necessary to establish the crime of abuse of a corpse — of

which Petitioner was convicted by the jury. ECF No. 22 at 13. The Superior Court set for the

facts underlying this issue as follows.

Appellant contends that Attorney Aubele was ineffective for failing

to appeal the denial of his objection related to two photographs of

Victim's corpse that were shown at trial. Appellant argues that he

requested that counsel raise the issue on appeal and that the issue

has merit because the photographs were more prejudicial than

probative. Appellant asserts that Attorney Aubele's explanation for

failing to raise the issue—that he had bargained with the

Commonwealth to only admit two photographs—-was not

reasonable as Attorney Aubele should not have agreed to the

admission of any photographs when Appellant was against their

entrance.

During the testimony of Trooper Charles Smolleck, the

Commonwealth admitted various photographs of the scene where

Victim's body was found, including two of Victim's body. N.T.,

7/9/18, at 95; Commonwealth Exhibit 19, 20. According to the trial

court, the two photographs were identical, except the second was a

blown-up version of the first. N.T., 7/9/18, at 94-95. At the time of

the admittance of these photographs, Attorney Aubele noted his

31

objection that had been made previously off the record. Id. at 95.

The trial court instructed the jury that the photographs were graphic

and only should be considered in the context of the abuse of a corpse

charge and should not affect the jury's consideration of any other

issue. Id. at 90. The trial court noted on the record after the jury

retired that it allowed the one photograph (in two different versions)

into the record over an objection because it was clearly relevant to

the abuse of a corpse charge, but the court excluded a second

photograph as cumulative and prejudicial. Id. at 102-03. In addition,

the trial court explained that it would often prefer to admit

photographs of a corpse in black and white, but the court felt that,

upon viewing the photographs, black and white was inadequate to

show the way the body was placed in the box. Id.

At the PCRA hearing, Attorney Aubele testified that he objected to

the admission of the exhibits and that he also came to an agreement

with the Commonwealth to admit the admission of two non-color

photographs. N.T., 9/30/20, at 13, 19, 26. In light of the clear

relevance of these photographs to prove that Appellant committed

the abuse of a corpse offense, Attorney Aubele felt that there would

be no merit to an appeal of the issue. Id. The PCRA court found that,

in light of Attorney Aubele's agreement to only admit two black-

and-white photographs and their clear relevance, the issue would not

have been found meritorious on direct appeal. PCRA Court Opinion,

1/5/21, at 5.

We note that there is some discrepancy between Attorney Aubele's

recollection at the PCRA hearing and the events at trial, as it appears

that the photographs that were admitted were in color, not black and

white.

Gambrel, 2022 WL 2952334, at *6-7.

The Superior Court went on to acknowledge that it did not have copies of the photos in

the record before it. Id. at *7. However, in spite of this, it went on to find that the photographs

were relevant and admissible;

Photographs of dead bodies “by their very nature can be unpleasant,

disturbing, and even brutal.” Commonwealth y. Johnson, 42 A.3d

1017, 1033 (Pa. 2012) (citation omitted). However, “the mere

depiction of blood” in a photograph is not by itself inflammatory.

Commonwealth y. Spell, 28 A.34 1274, 1279 (Pa. 2011). Moreover,

photographs that show the condition and location of the victim's

body when discovered are relevant to an abuse of a corpse charge.

Td. at 1280; Commonwealth v. Hutchison, 164 A.3d 494, 502 (Pa.

32

Super. 2017); see also 18 Pa.C.S. § 5510 (abuse of a corpse is shown

where the defendant “treats a corpse in a way that he knows would

outrage ordinary family sensibilities”).

Nothing in the record here indicates that the photographs of Victim

that were shown to the jury in this case were inflammatory. While

the trial court allowed two photographs to be admitted, they were

the same photograph with the second being a zoomed-in version of

the first; the trial court ruled that the admission of a second unique

photograph would have little additional probative value and be

unnecessarily prejudicial. N.T., 7/9/18, at 94-95, 102-03. The

photographs depicted the manner in which Appellant placed the

body inside of a cardboard box and were thus clearly relevant to the

jury's determination of whether he committed abuse of a corpse. Id.;

Spell, 28 A.3d at 1280; Hutchison, 164 A.3d at 502.

The trial court also explained that while it would often prefer black-

and-white photographs, in this case “the mechanism of putting the

body in the box would not be visible in black and white because the

blood would fade into the green [of the interior of the box] and not

be as visible.” N.T., 7/9/18, at 102-03. Furthermore, the trial court

reduced any prejudice caused by the photographs by instructing the

jurors of the limited reason for their admission and cautioning them

not to be emotionally swayed when viewing the photographs. Jd. at

90; Spell, 28 A.3d at 1280. In light of the lack of any showing that

the photographs were inflammatory and their clear relevance, we

conclude that Appellant has not proved that any appeal related to

this issue would be found meritorious. See Spell, 28 A.3d at 1279-

80 (two color photographs of blood-covered body found in parking

lot were not inflammatory and were relevant to show defendant

committed abuse of a corpse); Hutchison, 164 A.3d at 501-02 (four

color photographs depicting various parts of victim's decomposing

body were not inflammatory and were relevant to show abuse of

corpse).

Id. at *7-8.

Thus, the Superior Court found that Petitioner’s claim had no merit. Id. at *7. The

undersigned interprets this as a determination that counsel did not perform deficiently for failing

to appeal an issue that lacked merit.

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Like the Superior Court, this Court also lacks the exhibits at issue. However, on October

28, 2024, Respondents submitted four photographs from the prosecution’s file. One of those

photographs is marked with a handwritten numeral 19, and depicts an image consistent with the

description above of Commonwealth Exhibit 19 admitted at trial, and which provides the basis for

this claim. These photographs were lodged with the paper state court record in the possession of

this Court.

After review of the record — including, but not limited to, the testimony surrounding the

admission of the photographs, ECF No. 22-5 at 91-104 — it is clear that Petitioner has not met his

burden to show that the Superior Court’s decision was contrary to, or an unreasonable application

of Strickland, or an unreasonable determination of the facts. The same is true even considering

the photographs from the prosecution’s file in the paper state court record.

Indeed, an attorney does not provide ineffective assistance by failing to raise meritless

objections or file meritless motions. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).

Further, this Court is bound by the Superior Court’s determination that the photos were admissible

under Pennsylvania law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held

that a state court's interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting in habeas corpus.”). Because the photographs

at issue were admissible, Petitioner’s attorney did not perform deficiently in failing to appeal their

admission. Accordingly, Petitioner’s claim at Ground 2.c should be denied.

d. Ground 2.d: counsel’s alleged ineffectiveness for failing to appeal the trial

court’s refusal to suppress Petitioner’s statement to Corporal Thomas

Ulintz.

The Superior Court characterized the facts underlying this claim as follows.

Appellant argues that Attorney Aubele was ineffective for failing to

appeal the denial of the motion to suppress Appellant's statement to

Corporal Thomas Ulintz of the Pennsylvania State Police that

34

“(nlobody [was present in the garage of his workshop] that is alive

at least.” N.T., 7/10/18, at 47. Appellant made this statement upon

being detained by Corporal Ulintz outside of the garage and patted

down for weapons; Corporal Ulintz asked Appellant “if anything

was in there” in reference to Appellant's right pocket, and Appellant

responded “nobody that is alive at least.” Id. at 45-47. Corporal

Ulintz then asked him to clarify his statement and Appellant said, “I

thought you were talking about inside the garage, not inside my

pocket.” Id. at 47-48. Corporal Ulintz did not further inquire as to

who might be inside the garage. Id. at 48.

Appellant argues that the statement “nobody [is in the garage] that

is alive at least” was hearsay and that no exception applied to permit

its admission. Appellant contends that Attorney Aubele

demonstrated no reasonable basis at the PCRA hearing for his

failure to appeal from the denial of suppression and that counsel

recognized the prejudicial value of the statement as showing a

“callous or careless ... disregard for the condition of” Victim's body.

N.T., 9/30/20, at 14.

Gambrel, 2022 WL 2952334, at *6.

As the Superior Court recognized, the argument that Petitioner raised in his PCRA appeal

was the Petitioner’s underlying statement to Ulintz was inadmissible hearsay. Br. for Appellant,

Com. v. Gambrel, No. 719 WDA 2021, 2021 WL 6933047, at *20-21 (Pa. Super. Ct. filed Sept.

8, 2021).

The Superior Court found that “there is little prejudice to the admission of Appellant’s

statement” to Corporal Ulintz. Gambrel, 2022 WL 2952334, at *6. However, that court ultimately

determined that Petitioner’s argument failed because the underlying suppression motion was not

based on hearsay — and instead was based on an alleged violation of Petitioner’s right against self-

incrimination. Id. See also ECF No. 22-2 at 3 and ECF No. 22-3 at 5-6. Therefore, appellate

counsel’s failure to appeal on the basis of hearsay lacked merit because that argument would have

been waived. Gambrel, 2022 WL 2952334, at *6. Additionally, the Superior Court held that the

statement was admissible under Pennsylvania state law under the exception to the rule against

35

hearsay as an admission by an opposing party, and that any argument that counsel should have

objected to its admission at trial was without merit. Id. (citing Pa. R-E. 803(25)(A)).

Regardless of which of these bases Petitioner wishes to raise to support this claim, this

Court interprets the Superior Court’s holding as a finding that Petitioner had failed to establish

counsel’s deficient performance. Petitioner has failed to show that this finding was contrary to, or

an unreasonable application of Strickland, or was based on an unreasonable determination of the

facts. Moreover, as stated above, an attorney does not provide ineffective assistance by failing to

raise meritless objections or file meritless motions. Sanders, 165 F.3d at 253. Further, this Court

is bound by the Superior Court’s determination that Petitioner’s statement to Corporal Ulintz was

admissible under Pennsylvania law. Cf. Bradshaw, 546 U.S. at 76.

Petitioner’s counsel cannot perform deficiently for failing to challenge an admissible

statement. Accordingly, Petitioner’s claim at Ground 2.d should be denied.

e. Ground 2.e: counsel’s alleged ineffectiveness for failing to appeal the trial

court’s refusal to publish certain photos of the basement of the residence

where shooting occurred.

This Court once again turns to the Superior Court’s opinion denying PCRA relief for the

context underlying this ground.

At trial, the Commonwealth introduced and published to the jury

eight photographs of the basement area of the house taken by

Trooper Charles Morrison, the forensic investigator who took the

photographs; the photographs were admitted in part to show that no

firearms or ammunition were discovered in the house. N.T., 7/11/18

(Morning Session), at 63-72; Commonwealth Exhibits 82-89. On

cross-examination, Attorney Aubele showed Trooper Morrison

three additional photographs that he took of the basement area,

which showed two boxes of what appeared to be shotgun shells.

N.T., 7/11/18 (Morning Session), at 77-80; Defense Exhibits D-F.

Trooper Morrison agreed that the photographs were consistent with

boxes of Remington and Winchester ammunition. N.T., 7/11/18

(Morning Session), at 80. After a recess and further discussion, the

Commonwealth stipulated that the photographs showed two boxes

of Remington and Winchester shotgun shells. N.T., 7/11/18

36

(Afternoon Session), at 6. The trial court admitted the photographs

into the record but refused Attorney Aubele's request to publish

them as Victim was shot with a .22 caliber rifle and therefore the

shotgun shells only had impeachment value. Id. at 3-7.

Gambrel, 2022 WL 2952334, at *8.

The Superior Court noted that, during the PCRA hearing, Petitioner’s trial counsel testified

that these photos were requested and viewed by the jury during deliberations. PCRA Hr’g Tr.

dated Sept. 30, 2020, at 15-16, ECF No. 22-21 at 16-17. However, questions from the jury were

not preserved by the trial court, and the Superior Court was not able to determine whether the

record supported that testimony. Gambrel, 2022 WL 2952334, at *9.

Be that as it may, the Superior Court went on to explain that the trial court had discretion

not to publish the photos at issue to the jury.

Nevertheless, we agree with the trial court's explanation at trial as to

why publication of the photographs was not proper, and therefore

we find that there would have been no arguable merit to an appellate

claim raising the issue. As the trial court explained, the shotgun

shells present in the basement were admissible for purposes of

argument and as impeachment evidence to show that Trooper

Morrison's representation that no guns or ammunition were found in

the residence was inaccurate. N.T., 7/11/18 (Morning Session), at

80; N.T., 7/11/18 (Afternoon Session), at 4-7. However, the

photographs of the shotgun shells were not relevant to the issue of

whether the murder weapon—a rifle that fired .22 caliber bullets

rather than shotgun shells-—was inside the house or it needed to be

retrieved from a vehicle outside. N.T., 7/11/18 (Afternoon Session),

at 4-7. Therefore, the photographs of the shotgun shells were of

limited value to assist the jurors in “understand[ing] testimony as

they hear it” and the trial court did not abuse its discretion in

prohibiting the publication of the photographs. Id. at 7; of.

Commonwealth vy. Ali, 112 A.3d 1210, 1218 (Pa. Super. 2015),

vacated on other grounds, 149 A.3d 29 (Pa. 2016) (finding no abuse

of discretion with trial court's decision to not publish false laboratory

report relied upon by defendant when selling controlled substance

based upon “danger that the jury might skew or place undue

emphasis upon the contents of the report”).

Id.

37

Once again, this Court interprets the Superior Court’s decision as a finding that Petitioner

had failed to establish counsel’s deficient performance. Petitioner has failed to show that this

finding was contrary to, or an unreasonable application of Strickland, or was based on an

unreasonable determination of the facts. An attorney does not provide ineffective assistance by

failing to raise meritless objections or file meritless motions. Sanders, 165 F.3d at 253. And this

Court is bound by the Superior Court’s determination that the trial court had discretion not to

publish the phots under Pennsylvania law. Cf. Bradshaw, 546 U.S. at 76.

Petitioner’s counsel does not perform deficiently for failing to file a meritless appeal.

Accordingly, Petitioner’s claim at Ground 2.e should be denied.

f. Ground 2.f: trial counsel’s alleged ineffectiveness for causing Mr. Gambrel

to admit to the jury that he was confined in Fayette County Prison.

The Pennsylvania Superior Court provides the factual background for this claim in its

opinion affirming the denial of PCRA relief.

Appellant argues that Attorney Aubele was ineffective for eliciting

testimony from Appellant that he was incarcerated in the Fayette

County Prison at the time of trial. Appellant contends that the

“repeated references to [his] incarceration constituted a constant

reminder for the jury that Appellant was” incarcerated and that this

decision by counsel “created a negative image of his client in the

minds of the jury.” Appellant's Brief at 29-30.

On direct examination, Appellant stated that he was residing at

Fayette County Prison and he had been there for 11 and % months

at the time of his testimony. N.T., 7/13/18, at 50. Attorney Aubele

also asked Appellant whether he was being treated for cancer in jail,

to which Appellant responded in the negative. Id. at 75. Attorney

Aubele explained his rationale for these questions at the PCRA

hearing:

[I]t was part of the trial strategy that [Appellant] was

taking the blame for something that he did not do and

that he had been placed in the prison where he didn't

have access to drugs and where he didn't have access

to medical treatment and he had changed his mind,

that he did not want to take the fall for something that

38

he didn't do. Also at that point in time he had been in

prison for approximately a year and [ ] we also

argued that [Hughes] was going to be receiving

probation for her role [in Victim's killing]. Even if

[Appellant] was acquitted he was going to do more

time than her.

N.T., 9/30/20, at 17; see also id. at 24, 27.

The PCRA court determined that this issue was meritless because

“the fact that [Appellant] had been housed in the Fayette County

Prison had already been mentioned many times during the trial as

part of [Attorney Aubele's] strategy.” PCRA Court Opinion, 1/5/21,

at 6. It is unclear what earlier references to Appellant's incarceration

to which the PCRA court refers. However, we conclude that

Appellant is not entitled to relief on this claim on the alternate basis

that Attorney Aubele's questioning formed a part of his reasonable

trial strategy to persuade the jury that Appellant took responsibility

for Hughes’ crime and Appellant had already been punished far

more than Hughes ever would. Attorney Aubele cross-examined

Hughes to this effect, asking whether she took advantage of

Appellant by having him provide her with drugs and other favors

and whether she took “advantage of him when [she] allowed him to

take the rap for” her. N.T., 7/10/18, at 194. Attorney Aubele

emphasized during closing arguments that Hughes was “free” at the

time of trial and “the most punishment [that] she is going to receive

for her involvement in this incident is probation[, while Appellant]

has been incarcerated for nearly a year.” N.T., 7/16/18 (Closing

Arguments), at 14.

Gambrel, 2022 WL 2952334, at *10-11.

The Superior Court determined that trial counsel’s performance was based on a reasonable

strategy, and was not deficient.

Here, Attorney Aubele's references to Appellant's incarceration was

in accordance with the standards set forth by our Supreme Court as

it was clear that Appellant was being detained for the purpose of

trial and Attorney Aubele raised the issue only as part of his strategy

to gain sympathy for Appellant and to highlight the fact that Hughes

would never serve time. Moreover, Attorney Aubele did not go so

far as to have Appellant dressed in prisoner's clothing for trial, which

would unnecessarily portray Appellant in a negative light. See N.T.,

9/30/20, at 24 (“Well I certainly didn't want him dressed in [prison

clothing] for trial ...”). As Attorney Aubele had a reasonable basis

39

for raising the issue of Appellant's pre-trial detention, we conclude

that Appellant is not entitled to relief on his final appellate issue.

Id. at *11.

After reviewing the record, the undersigned concludes that Petitioner has not met his

burden to show that the Superior Court’s decision was contrary to, or an unreasonable application

of the Strickland standard, or was based on an unreasonable determination of the facts. Petitioner

has not refuted the Superior Court’s characterization of the evidence, including the closing

arguments. Further, as recognized by the Supreme Court in Strickland, “[jJudicial scrutiny of

counsel's performance must be highly deferential. 466 U.S. at 689. Indeed, “strategic choices

made after thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable[]” Willgin, 539 U.S. at 522. As such, this claim should be denied.

g. Ground 2.g: counsel’s alleged ineffectiveness for failing to appeal the trial

court’s denial of his objection regarding Petitioner’s possession of two

shotguns.

The Superior Court set forth the facts underlying this claim as follows.

Appellant asserts that Attorney Aubele was ineffective for failing to

appeal the denial of his objection to the district attorney's

questioning of Appellant regarding his possession of two shotguns

in his home on the grounds that the question assumed facts not in

evidence. Appellant argues that this line of questioning “confus[ed]

the jury and divert[ed] their attention from the facts of the case.”

Appellant's Brief at 28. Appellant further asserts that Attorney

Aubele's representations at the PCRA hearing that the testimony

regarding the shotguns was a “nonissue” did not constitute a

reasonable basis for not raising the issue on direct appeal. N.T.,

9/30/20, at 18.

The following exchange took place during cross-examination of

Appellant:

Q. And, you told the police you didn't ever own a

gun, didn't you?

A. Not that I had never owned a gun, no.

40

Q. You didn't have any guns at the time this

happened?

A. No.

Q. Did you have a shotgun?

A. I didn't.

Q. You didn't?

A. No.

Q. Never?

A. No.

Q. Over your home on...

A. There are two shotguns there.

Q. There are two shotguns over there, isn't there?

A. Yes.

N.T., 7/13/18, at 97. Attorney Aubele then objected, but the trial

court overruled the objection on the basis of a potentially prior

inconsistent statement to police that he did not own a gun. Id. at 97-

98. A short recess was taken directly after the trial court's ruling, and

Appellant's possession of shotguns was not revisited at trial.

Gambrel, 2022 WL 2952334, at *9-10.

The Superior Court determined that Petitioner did not demonstrate that counsel’s

performance was deficient, and did not show prejudice due to counsel’s failure to appeal this issue.

The record here supports the PCRA court's conclusion that

Appellant first mentioned that he had “two shotguns” and that

Attorney Aubele's objection was only based upon the district

attorney's repetition of this assertion. N.T., 7/13/18, at 97.

- Furthermore, the Commonwealth was entitled to probe Appellant's

credibility and the question of whether he had access to weapons on

cross-examination. Therefore, even if Attorney Aubele had

appealed from the denial of his objection on direct appeal, it would

not have been found meritorious. Moreover, even if Appellant could

demonstrate he met the first prong of the ineffectiveness test, he has

failed to establish how the brief reference to him being in possession

4]

of weapons that were not consistent with the murder weapon

prejudiced him.

Id. at *10.

Once again, Petitioner has failed to demonstrate that the Superior Court’s determination

was contrary to, or an unreasonable application of Strickland, or based on an unreasonable

determination of facts. As to the sufficiency of counsel’s performance, this Court is bound by the

Superior Court’s determination that Pennsylvania law entitled the prosecution “to probe

Appellant's credibility and the question of whether he had access to weapons on cross-

examination[.]” Cf. Bradshaw v. Richey, 546 U.S. at 76. An attorney does not provide ineffective

assistance by failing to raise meritless objections or file meritless motions.® Sanders, 165 F.3d at

253. Accordingly, this claim should be denied.

E. Certificate of Appealability

A certificate of appealability should be denied, as jurists of reason would not debate that

Petitioner has failed to show entitlement to relief. Slack v. McDaniel, 529 U.S. 473, 484-85

(2000).

Il. CONCLUSION

For the reasons set forth above, it is respectfully recommended that the Petition, ECF No. 1,

be denied. It is further recommended that a certificate of appealability be denied.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule

72.D.2, the parties are permitted to file written objections in accordance with the schedule

established in the docket entry reflecting the filing of this Report and Recommendation.

Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street,

Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal.

° Because counsel’s performance was not deficient, there is no need to address prejudice.

42

Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 3d Cir. 2011). Any party opposing objections may

file their response to the objections within fourteen (14) days thereafter in accordance with Local

Civil Rule 72.D.2.

ef

Dated: November‘ __, 2024 Respectfully submitted,

pe . f

— AUALLY BK □□□

MAWREEN PA. KBLLY nf

UNITED-STATES MAGISTRATE JUDGE

ce: Hon. Arthur J. Schwab

United States District Judge

Wiley Estill Gambrel

NM-5383

SCI Houtzdale

P.O. Box 1000

209 Institution Drive

Houtzdale, PA 16698-1000

All counsel of record (via CM/ECF)

43