Burton v. Gorley

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RONALD BUTLER BURTON, Civil No. 3:23-cv-436

Petitioner (Judge Mariani)

Vv. :

SUPERINTENDENT GORLEY, et ai.,

Respondents

MEMORANDUM

Petitioner Ronald Burton (“Burton”) filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction imposed in the Court

of Common Pleas of Dauphin County, Pennsylvania. (Doc. 1). For the reasons set forth

below, the Court will deny the habeas petition and a certificate of appealability will not issue.

Background’

In January of 2010, Burton was charged with homicide, and several other crimes,

related to the shooting death of Brandon Granthon on May 5, 2009. See Commonwealth v.

Burton, 283 A.3d 347 (Table), 2022 WL 2523158, *1 (Pa. Super. 2022). At trial, the

1 A federal habeas court may take judicial notice of state court records. See Zedonis v. Lynch,

233 F. Supp.3d 417, 422 (M.D. Pa. 2017) (Caldwell, J.) (citing Pension Benefit Guar. Corp. v. White

Consul. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993) and Dean v. Copozza, No. Civ. A. 13-41, 2013 WL

1787804, at *1 (W.D. Pa. Apr. 10, 2013) (“Pennsylvania’s Unified Judicial System provides online access to

the docket sheets for criminal cases, and this Court may take judicial notice of those public dockets.”).

Accordingly, in reviewing this petition, the Court takes judicial notice of the publicly available dockets of

criminal and collateral post-conviction proceedings in the Court of Common Pleas of Dauphin County, the

Pennsylvania Superior Court, and the Pennsylvania Supreme Court.

Commonwealth presented many witnesses, including an individual named Preston Burgess.

Id. Burgess testified that he arranged a deal for Burton to sell Granthon crack cocaine,

which took place on May 4, 2009. /d. Shortly after the transaction, Burgess contacted

Burton because Granthon (the victim) believed that Burton had shorted Granthon on the

drugs. /d. Burgess testified that Burton agreed to refund Granthon his money. /d.

According to Burgess, Burton was at Burgess’s house and became angry when Granthon

called Burgess and asked Burgess to have Burton show him the “refund money.” /d.

Burton left Burgess’s house with a man named Slim to find Granthon. /d. A few minutes

after Burton left the house, Burgess went to a nearby convenience store, where he heard

several gunshots. /d.

On January 27, 2011, following a jury trial, Burton was found guilty of first-degree

homicide, conspiracy, possession with intent to deliver, illegally possessing a firearm,

carrying a firearm without a license, and recklessly endangering another person.

Commonwealth v. Burton, No. CP-22-CR-0005456-2009 (Pa. Ct. Com. Pl. Dauphin Cnty.).

The trial court sentenced Burton to, inter alia, life in prison on the homicide charge. /d.

Burton filed a notice of appeal with the Pennsylvania Superior Court. See

Commonwealth v. Burton, 1873 MDA 2016 (Pa. Super. July 26, 2017). On January 20,

2012, the Superior Court vacated Burton’s judgment of sentence on the homicide charge

and remanded for a new trial on that charge only. See Commonwealth v. Burton, 385 MDA

2011 (Pa. Super. Jan. 20, 2012); see also Commonwealth v. Burton, 2022 WL 2523158, at

*2. The Superior Court also vacated the sentences on Burton’s rernaining five convictions

on the basis that the decision could alter the trial court’s overall sentencing scheme. See

Commonwealth v. Burton, 2022 WL 2523158, at *2. The Superior Court remanded for

resentencing on those five convictions. /d.

The Commonwealth did not retry Burton on the homicide charge. Id. On March 30,

2012, the trial court resentenced Burton on the remaining five convictions, but because

Burton’s petition for allowance of appeal from the Superior Court’s January 20, 2012

decision was still pending, that sentence was declared a nullity. See Commonwealth v.

Burton, No. CP-22-CR-0005456-2009; Commonwealth v. Burton, 385 MDA 2011 (Pa.

Super.). Burton filed a petition for allowance of appeal with the Pennsylvania Supreme

Court, which was denied. Commonwealth v. Burton, 131 MAL 2012 (Pa.). On October 2,

2012, the trial court resentenced Burton to an aggregate sentence of 22’ to 50 years’

imprisonment. Commonwealth v. Burton, No. CP-22-CR-0005456-2009. Burton filed an

appeal with the Superior Court. Commonwealth v. Burton, 1936 MDA 2012 (Pa. Super.).

On July 26, 2013, the Superior Court affirmed the judgment of sentence and concluded that

Burton had not preserved his claims challenging the discretionary aspects of sentence at

the resentencing hearing or in a post-sentence motion. Commonwealth v. Burton, 2013 WL

11257090 (Pa. Super.).

On March 27, 2014, Burton filed a pro se petition for post-conviction collateral relief

pursuant to the Post Conviction Relief Act (“PCRA”), 42 PA. CONS. STAT. §§ 9541-46,

seeking reinstatement of his right to file a post-sentence motion nunc pro tunc. See

Commonwealth v. Burton, 2016 WL 920094, *1 (Pa. Super. 2016). Burton subsequently

retained private counsel, who filed a supplemental PCRA petition in December of 2014. /d.

On February 10, 2015, the PCRA court granted the petition in part and denied it in part. /d.

Specifically, the order granted Burton leave to file a post-sentence motion nunc pro func.

The remainder of the petition was denied. /d.

On March 10, 2015, Burton filed a post-sentence motion with the trial court and a

notice of appeal from the February 10, 2015 order. Id. The PCRA court permitted Burton's

private counsel to withdraw and appointed appellate counsel. /d. On March 10, 2016, the

Superior Court affirmed the part of the PCRA court’s February 10, 2015 order restoring

Burton's direct appeal rights nunc pro tunc. Commonwealth v. Burton, 457 MDA 2015,

2016 WL 920094. The Superior Court also vacated the remainder of that order on the basis

that once the PCRA court reinstated Burton’s direct appeal rights, it no longer had

jurisdiction to address the merits of any remaining claims. /d. The Superior Court quashed

the appeal to the extent that it sought to challenge the disposition of the post-sentence

motion, as the motion was still pending in the trial court. /d.

On March 18, 2016, the trial court entered an order confirming the denial of Burton's

nunc pro tunc post-sentence motion by operation of law pursuant to Pennsylvania Rule of

Criminal Procedure 720(B)(3)(a).2. Commonwealth v. Burton, No. CP-22-CR-0005456-2009.

Burton filed a direct appeal, but subsequently withdrew the appeal. Commonwealth v.

Burton, 636 MDA 2016 (Pa. Super.).

On September 29, 2016, the trial court resentenced Burton to an aggregate term of

22’ to 45 years’ incarceration. Commonwealth v. Burton, No. CP-22-CR-0005456-2009.

On October 11, 2016, the trial court denied Burton’s post-sentence motion for modification

of sentence. /d. Burton timely appealed on November 4, 2016. Commonwealth v. Burton,

1873 MDA 2016 (Pa. Super.). On July 26, 2017, the Superior Court affirmed the judgment

of sentence after rejecting Burton’s three claims challenging the discretionary aspects of the

sentence. Commonwealth v. Burton, 1873 MDA 2016, 2017 WL 3172598 (Pa. Super.).

The Pennsylvania Supreme Court denied Burton's petition for allowance of appeal.

Commonwealth v. Burton, 573 MAL 2017 (Pa.).

Burton then filed a timely pro se PCRA petition, alleging three claims of prior

counsels’ ineffectiveness. Commonwealth v. Burton, No. CP-22-CR-0005456-2009.

Counsel was appointed counsel, and counsel filed a supplemental PCRA petition. Id. The

PCRA court ultimately dismissed the petition. /d. Burton filed an appeal to the Superior

Court and sought to proceed pro se. Id. Following a hearing, the PCRA court granted

Burton’s request to proceed pro se. /d. On July 7, 2022, the Superior Court affirmed the

2 Pennsylvania Rule of Criminal Procedure 720(B)(3)(a) provides that if that trial judge “fails to

decide the [post-sentence] motion within 120 days, or to grant an extension...the motion shall be deemed

denied by operation of law.” See PA. R. Crim. P. 720(B)(3)(a).

order of the PCRA court dismissing the petition. Commonwealth v. Burton, 283 A.3d 347

(Table), 2022 WL 2523158 (Pa. Super. July 7, 2022). The Pennsylvania Supreme Court

subsequently denied Burton’s petition for allowance of appeal. Commonwealth v. Burton,

370 MAL 2022, 293 A.3d 248 (Table) (Pa.).

Thereafter, Burton timely filed the instant petition pursuant to 28 U.S.C. § 2254.

(Doc. 1).

ll. Habeas Claims Presented for Federal Review

Burton seeks habeas relief based on the following grounds:

e Ground One: The evidence was insufficient to sustain his conviction for

conspiracy to commit first-degree homicide.

e Ground Two: Trial counsel was ineffective for failing to object to a jury instruction

on persons not to possess firearms.

e Ground Three: Trial counsel was ineffective for failing to object to a jury

instruction on accomplice liability for conspiracy to commit first-degree homicide.

e Ground Four: Trial counsel failed to conduct an independent investigation of a

witness.

e Ground Five: The PCRA court erred in denying a new trial based on newly

discovered evidence.

e Ground Six: Trial counsel was ineffective for failing to request a direct appeal on

all charges.

e Ground Seven: Trial counsel's alleged ineffective assistance, in combination,

cumulatively caused him prejudice.

(Doc. 1, at 5-15).

lil. Legal Standards

The statutory authority of federal courts to issue habeas corpus relief for persons in

state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996 ("‘AEDPA”). A habeas corpus petition pursuant to §

2254 is the proper mechanism for a prisoner to challenge the “fact or duration” of his

confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36 L.Ed.2d 439

(1973). “[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct.

475, 116 L.Ed.2d 385 (1991). Rather, federal habeas review is restricted to claims based

“on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.

A. Exhaustion and Procedural Default

A habeas petitioner must exhaust state court remedies before obtaining habeas

relief. 28 U.S.C. § 2254(b)(1)(A). The traditional way to exhaust state court remedies in

Pennsylvania was to fairly present a claim to the trial court, the Pennsylvania Superior

Court, and the Pennsylvania Supreme Court. See Evans v. Court of Common Pleas,

Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992). However, in light of Pennsylvania

Supreme Courl Order No. 218, issuec! May 9, 2000, (‘Order No, 278”), itis 10 longer

necessary for Pennsylvania inmates to seek allocatur from the Pennsylvania Supreme

Court in order to exhaust state remedies under 28 U.S.C. § 2254(c). See Lambert v.

Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004) (“We now hold that Order No, 218 renders

review from the Pennsylvania Supreme Court ‘unavailable’ for purposes of exhausting state

court remedies under § 2254(c).”).3 The habeas petitioner has the burden of proving

exhaustion. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).

A petitioner's failure to exhaust his state remedies may be excused in limited

circumstances on the ground that exhaustion would be futile. Lambert, 134 F.3d at 518-19.

Where such futility arises from a procedural bar to relief in state court, the claim is subject to

the rule of procedural default. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). In

addition, if the state court does not address the merits of a claim because the petitioner

failed to comply with the state’s procedural rules in presenting the claim, it is also

procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

If a claim is found defaulted, the federal court may address it only if the petitioner

establishes cause for the default and prejudice resulting therefrom, or that a failure to

consider the claim will result in a fundamental miscarriage of justice. Werts, 228 F.3d at

192. To meet the “cause” requirement to excuse a procedural default, a petitioner must

“show that some objective factor external to the defense impeded counsel's efforts to

3 In May 2000, the Pennsylvania Supreme Court issued an order, Order No. 218, rendering

review from the Pennsylvania Supreme Court “unavailable” for purposes of exhausting state court remedies

for federal habeas petitions under 28 U.S.C. § 2254(c). Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir.

2004) (interpreting /n re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No.

218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (“Order No. 218”). This means that, for

purposes of federal habeas review under § 2254, a person in Pennsylvania custody “need rot seek review

from the Pennsylvania Supreme Court’ in order to have exhausted state remedies and seek federal habeas

review. Id.

comply with the State’s procedural rule.” /d. at 192-93 (quoting and citing Murray v. Carrier,

477 U.S. 478, 488-89 (1986)). Additionally, a petitioner can rely on post-conviction

counsel's ineffectiveness to establish cause to overcome the default of a substantial claim

of ineffective assistance of trial counsel. Martinez v. Ryan, 566 U.S. 1, 14 (2012). To

establish prejudice, a petitioner must prove “not merely that the errors at . . . trial created a

possibility of prejudice, but that they worked to his actual and substantial disadvantage,

infecting his entire trial with error of constitutional dimensions.” Bey v. Sup’t Greene SC],

856 F.3d 230, 242 (3d Cir. 2017).

For a petitioner to satisfy the fundamental miscarriage of justice exception to the rule

of procedural default, the Supreme Court requires that the petitioner show that a

“constitutional violation has probably resulted in the conviction of one who is actually

innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Murray, 477 U.S. at 496).

This requires that the petitioner supplement his claim with “a colorable showing of factual

innocence.” McCleskey v. Zant, 499 U.S. 467, 495 (1991) (citing Kuhimann v. Wilson, 477

U.S. 436, 454 (1986)). In other words, a petitioner must present new, reliable evidence of

factual innocence. Schlup, 513 U.S. at 324.

B. Merits Standard

Once a court has determined that the exhaustion requirement is met and, therefore,

that review on the merits of the issues presented in a habeas petition is warranted, the

scope of that review is set forth in 28 U.S.C. § 2254(d). Section 2254(d) provides, in

pertinent part, that an application for a writ of habeas corpus premised on a claim previously

adjudicated on the merits in state court shall not be granted unless:

(1) [the decision] 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) [the decision] 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). To establish that the decision was contrary to federal law “it is not

sufficient for the petitioner to show merely that his interpretation of Supreme Court

precedent is more plausible than the state court's; rather, the petitioner must demonstrate

that Supreme Court precedent requires the contrary outcome.” Matteo v. Superintendent,

171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state court

decision to be an unreasonable application of federal law if the decision, “evaluated

objectively and on the merits, resulted in an outcome that cannot reasonably be justified

under existing Supreme Court precedent.” /d.

Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a

state court’s findings of fact are correct. A petitioner may only rebut this presumption with

clear and convincing evidence of the state court's error. Miller-El v. Cockrell, 537 U.S. 322,

341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual

issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual

decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir.

2005). This presumption of correctness applies to both explicit and implicit findings of fact.

10

Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, a habeas petitioner

“must clear a high hurdle before a federal court will set aside any of the state court's factual

findings.” Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).

Like the “unreasonable application” prong of paragraph (1), a factual determination

should be adjudged “unreasonable” under paragraph (2) only if the court finds that a rational

jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C.

§ 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v.

Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316

(1979). “This provision essentially requires the district court to step into the shoes of an

appellate tribunal, examining the record below to ascertain whether sufficient evidence

existed to support the findings of fact material to the conviction.” Breighner v. Chesney, 301

F. Supp. 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)*). Mere

disagreement with an inferential leap or credibility judgment of the state court is insufficient

to permit relief. Porter, 276 F. Supp. 2d at 296; see also Williams v. Taylor, 529 U.S. 362,

408-09 (2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when the finding

lacks evidentiary support in the state court record or is plainly controverted by evidence

4 “If the applicant challenges the sufficiency of the evidence adduced in such State court

proceeding to support the State court's determination of a factual issue made therein, the applicant, if able,

shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to

support such determination.” 28 U.S.C. § 2254(f).

11

therein should the federal habeas court overturn a state court's factual determination.

Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-09.

C. Ineffective Assistance of Counsel Standard

The Sixth Amendment right to counsel is the right to the effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). This right to effective

assistance of counsel also extends to the first appeal. Lewis v. Johnson, 359 F.3d 646, 656

(3d Cir. 2004). In Strickland, the Supreme Court articulated a two-prong test in assessing

whether a petitioner has been denied the effective assistance of counsel. Strickland, 466

U.S. at 687-88. A petitioner must demonstrate: (1) that his counsel’s representation “fell

below an objective standard of reasonableness” and (2) that such defective performance

caused the petitioner prejudice. See id.

In evaluating the first prong of the Strickland test, the court must be “highly

deferential” toward counsel’s conduct. /d. at 689. There is a strong presumption that

counsel's conduct fell within the wide range of reasonable professional assistance. /d. (“It is

all too tempting for a defendant to second-guess counsel's assistance after conviction or

adverse sentence, and it is all too easy for a court, examining counsel's defense after it has

proved unsuccessful, to conclude that a particular act or omission of counsel was

unreasonable.”). “Strickland and its progeny make clear that counsel's strategic choices will

not be second-guessed by post-hoc determinations that a different trial strategy would have

fared better.” Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir. 2006) (citing Strickland, 466

12

U.S. at 689). Notably, courts will not deem counsel ineffective for failing to raise a meritless

argument. Strickland, 466 U.S. at 691; United States v. Saunders, 165 F.3d 248, 253 (3d

Cir. 1999).

To satisfy the prejudice prong, the petitioner must show that there is a reasonable

probability that, but for counsel's deficient performance, the outcome of the proceeding

would have been different. See Strickland, 466 U.S. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” /d. Moreover, the petitioner

must show that he or she had a reasonable likelihood of prevailing on the motion at issue,

and having prevailed on the motion, it was also reasonably likely that the result of the trial

would have been different. See Thomas, 428 F.3d at 502.

To prevail on a claim for ineffective assistance of counsel, a petitioner must satisfy

both prongs of the Strickland test. Carpenter v. Vaughn, 296 F.3d 138, 149 (3d Cir. 2002).

The inquiry may begin with either the deficient performance or prejudice prong, and the

court is not required to consider the second prong of the test if the petitioner is unable to

satisfy the first one. Strickland, 466 U.S. at 697.

13

IV. Discussion‘

A. Ground One

In ground one, Burton alleges that the evidence was insufficient to sustain his

conviction for conspiracy to commit first-degree homicide. (Doc. 1, at 5).

The “clearly established Federal law’ governing sufficiency of the evidence claims is

set forth in the United States Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307

(1979). Under Jackson, evidence is sufficient to support a conviction if, “after reviewing the

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

found the essential elements of the crime beyond a reasonable doubt.” /d. at 319.

“Jackson 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 v. Johnson, 566 U.S. 650, 651 (2012) (quoting Jackson,

443 U.S. at 319).

On direct appeal, Burton argued that the evidence was insufficient to support the

jury's finding of guilty of conspiracy to commit first-degree homicide. Commonwealth v.

5 “In considering a § 2254 petition, we review the ‘last reasoned decision’ of the state courts on

the petitioner's claims.” Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (citing Bond v. Beard, 539

F.3d 256, 289-90 (3d Cir. 2008)). Thus, “[w]e review the appellate court decision, not the trial court

decision, as long as the appellate court ‘issued a judgment, with explanation, binding on the parties before

it.” Burnside v. Wenerowicz, 525 F. App’x 135, 138 (3d Cir. 2013). The Pennsylvania Superior Court's

opinion issued July 7, 2022, and the trial court opinion issued on April 11, 2011, will be the primary

reference points in addressing Burton's claims. See Commonwealth v. Burton, 2011 WL 7325748 (Pa. Ct.

Com. Pl. Dauphin Cnty. Apr. 27, 2011); Commonwealth v. Burton, 283 A.3d 347, 2022 WL 25231.58 (Pa.

Super. July 7, 2022).

14

Burton, 2011 WL 7325748. In its Rule 1925(a) opinion, the trial court rejected Burton's

sufficiency of the evidence claim and found as follows:®

The trial court did not err in denying Appellant's motion for acquittal on the

convictions of murder in the first degree and criminal conspiracy. To

determine if the evidence was sufficient to support the jury’s finding on a

conviction, courts look to whether the evidence, when viewed in the light most

favorable to the Commonwealth, would allow a reasonable jury to find every

element of the crimes beyond a reasonable doubt. Commonwealth v.

Montalvo, 604 Pa. 386, 399-400, 986 A.2d 84, 92 (Pa, 2009).

The trial court did not err in denying Appellant's motion for acquittal on the

conviction of criminal conspiracy. For the charge of criminal conspiracy, the

Commonwealth must prove beyond a reasonable doubt that: “1) the

defendant intended to commit or aid in the commission of the criminal act; 2)

the defendant entered into an agreement with another to engage in the crime;

and 3) the defendant or one or more of the other co-conspirators committed

an overt act in furtherance of the agreed upon crime.” Commonweailth v.

Johnson, 604 Pa. 176, 185, 985 A.2d 915, 920 (Pa. 2009); 18 PA. Cons.

STAT. § 903 (2010).

As to the first requirement of criminal conspiracy, evidence was presented

which indicated that Appellant intended to commit or aid in the commission of

the criminal act of homicide. Testimony was presented that Appellant

became angry with Granthon’s demands regarding the return of his money,

and left Preston Burgess’ home with another individual to find Granthon on

the night of the murder. (N.T. 48-49.) Also, as mentioned earlier, seventeen

phone calls were exchanged between Appellant and Granthon after midnight

in the early morning hours of May 5, 2009, shortly before Granthon was found

dead. (N.T. 272).

The Commonwealth also presented evidence with respect to the

requirements that Appellant enter into an agreement with another to commit

6 The trial court filed an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a)

on April 11,2011. Commonwealth v. Burton, 2011 WL 7325748 (Pa. Ct. Com. Pl. Dauphin Cnty. Apr. 27,

2011).

15

or aid in the commission of the crime, and that Appellant or the co-conspirator

committed an overt act in furtherance of the agreed upon crime. Here,

Preston Burgess testified that he gave Appellant Granthon’s phone number,

and that Appellant left with another individual known as “Slim” to find

Granthon. (N.T. 48-49; 53.) Second, testimony was also provided by Jeffrey

Lynch and Greta McAllister that Appellant was identified as being one of two

men with guns that stalked the victim down Mulberry Street, prior to shots

being heard. (N.T. 141-42; 202; 217-18; 227-229.) Third, the Commonwealth

presented evidence that Appellant made a call around 1:13 a.m., less thari a

half mile from the location where Granthon was discovered by the police

around 1:11 a.m. (N.T. 313-14; 25-26.)

Therefore, sufficient direct and circumstantial evidence was presented to

allow a reasonable jury to find Appellant guilty of the charge of criminal

conspiracy. Consequently, the trial court did not err in denying Appellant's

motion for acquittal on the conviction of criminal conspiracy.

Commonwealth v. Burton, 2011 WL 7325748 (Pa. Ct. Com. Pl. Dauphin Cnty. Apr. 27,

2011).

Clearly, the state court applied the Pennsylvania equivalent of the Jackson standard.

See Evans, 959 F.2d at 1233 (noting that the test for sufficiency of the evidence is the same

under both Pennsylvania and federal law). Because the Superior Court applied the corract

legal standard, its adjudication satisfies review under the “contrary to” clause of §

2254(d)(1). See, e.g., Williams, 529 U.S. at 405-06.

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

“unreasonable application” of Jackson.

Jackson claims face a high bar in federal habeas proceedings because they

are subject to two layers of judicial deference. First, on direct appeal, “it is the

responsibility of the jury...to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the [trial court's]

verdict on the ground of insufficient evidence only if no rational trier of fact

16

could have agreed with the [trial court].” Cavazos v. Smith, 565 U.S. 1

(2011). And second, on habeas review, “a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge simply

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

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

unreasonable.” /bid. (quoting Renico v. Lett, 559 U.S. 766 (2010).

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

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

court of last review did not think so, and that determination in turn is entitled

to considerable deference under AEDPA, 28 U.S.C. § 2254(d).

Coleman, 566 U.S. at 651, 656.

Burton's sufficiency of the evidence argument raised here echoes the argument

raised in state court. (Doc. 1, at 5). He argues that the Commonwealth failed to introduce

evidence of a conspiracy between himself and his co-defendant. (/d.).

In considering this issue, the trial court found that “evidence was presented which

indicated that [Burton] intended to commit or aid in the commission of the criminal act of

homicide.” Commonwealth v. Burton, 2011 WL 7325748. The trial court highlighted the

following evidence: “Preston Burgess testified that he gave Granthon’s phone number to

Burton, and that Burton left with another individual known as “Slim” to find Granthon. (N.T.

48-49; 53.) Second, testimony was also provided by Jeffrey Lynch and Greta McAllister that

Burton was identified as being one of two men with guns that stalked the victim down

Mulberry Street, prior to shots being heard. (N.T. 141-42; 202; 217-18; 227-229.) Third, the

Commonwealth presented evidence that Burton made a call around 1:13 a.m., less than a

half mile from the location where Granthon was discovered by the police around 1:11 a.m.”

17

Id. The trial court found that this evidence was sufficient to sustain the conviction of

conspiracy to commit first-degree homicide. The state court detailed the testimony and

stated that “sufficient direct and circumstantial evidence was presented to allow a

reasonable jury to find [Burton] guilty of the charge of criminal conspiracy.” /d.

Significantly, Burton does not argue that the state court's reliance on the above

evidence and testimony “was so insupportable as to fall below the threshold of bare

rationality.” Coleman, 566 U.S. at 656. Instead, he summarily argues that the

Commonwealth failed to introduce evidence of a conspiracy. (Doc. 1, at 5).

“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine

credibility of witnesses whose demeanor has been observed by the state trial court, but not

by them.” Marshall v. Lonberger, 459 U.S. 422, 434 (1983). Indeed, under tie Jackson

standard, “the assessment of the credibility of witnesses is generally beyond the scope of

review.” Schlup, 513 U.S. at 330. The proper question is not whether the witnesses were

credible, but “whether there is sufficient evidence which, if credited, could support the

conviction.” /d. Further, Coleman cautioned courts that Jackson does not permit

“imping|ing] on the jury’s role as factfinder’” through “fine-grained factual parsing.” Coleman,

566 U.S. at 655. Rather, “Jackson 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.’ [Jackson, 443 U.S.] at 319.” /d.

18

Taking into consideration all of this evidence as a whole, and viewing the evidence in

the light most favorable to the prosecution, the Court finds that the state court's conclusion

that there was sufficient evidence at trial to establish the necessary elements of conspiracy

to commit first-degree homicide, and to sustain the verdict, is not objectively unreasonable.

Jackson, 443 U.S. at 319. There simply is no possibility that fair-minded jurists could find

that this determination conflicts with applicable Supreme Court precedent. Nor, based on

review of the state court evidence, is it an unreasonable determination of the facts. Burton

is not entitled to relief on this claim.

B. Ground Two

In ground two, Burton alleges that trial counsel was ineffective for failing to object to

a jury instruction on persons not to possess firearms. (Doc. 1, at 6-7). This claim was fully

adjudicated during the PCRA proceedings. The Superior Court ultimately found that Burton

was not entitled to relief on this claim and found as follows:

Counsel is presumed to have been effective. See Commonwealth v. Brooks,

839 A.2d 245, 248 (Pa. 2003). In order to overcome that presumption and

prevail on a claim of ineffectiveness, Burton must establish that: (1) the

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

his conduct; and (3) he was prejudiced by counsel's ineffectiveness, i.e. there

is a reasonable probability that because of the act or omission in question, the

outcome of the proceeding would have been different. See id.

Burton addresses his first two allegations of ineffectiveness together, which

both relate to his illegal possession of a firearm conviction. In these two

claims, Burton argues that all prior counsel! were ineffective for failing to raise

a Claim challenging trial counsel's failure to object to the jury instruction on

illegal possession of a firearm as well as to request a bifurcated trial on the

19

illegal possession charge. His arguments in support of these contentions are

less than clear. He does, however, repeatedly make the summary allegation

that counsel’s inactions unduly prejudiced him. We do not agree, and instead

find that neither of these claims offer Burton any basis for relief.

One of the charges Burton faced at trial was the illegal possession of a

firearm pursuant to 18 Pa. C.S.A. § 6105. To prove Burton was guilty of

Section 6105, the Commonwealth needed to prove Burton possessed a

firearm and that he had previously been convicted of one of 38 enumerated

offenses, including aggravated assault, that prohibits him from possessing a

firearm. See Commonwealth v. Miklos, 159 A.3d 962, 967 (Pa. Super. 2017);

18 Pa. C.S.A. § 6105(b).

Prior to trial, defense counsel stipulated that Burton had a prior conviction

which made it illegal for him to possess a firearm under Section 6105. See

N.T. Jury Trial, 1/24/11, at 7-8. The Commonwealth agreed to the stipulation.

See id. at 7. The parties then agreed - and the trial court clarified - that there

would not be any mention at trial of the specific offense for which Burton had

been convicted - aggravated assault - that made him ineligible to possess a

firearm. See id. at8. The parties also agreed that the only issue for the jury

to decide for purposes of the Section 6105 charge would be whether Burton

actually possessed a firearm. See id.

On appeal, Burton does not contend that he does not, in fact, have an

aggravated assault conviction or that such a conviction does not make him

ineligible to possess a firearm under Section 6105. Nor does he point to any

place in the record where the parties made any reference to the aggravated

assault conviction at trial or elicited any testimony about that conviction.

Instead, Burton first argues that he was prejudiced by counsel’s failure to

object to the court’s charge on illegal possession of a firearm, in which the

court told the jury:

THE COURT: ... The defendant is charged with former convict

prohibited from having a firearm. The defendant has been charged

with former convict - to find the defendant guilty of this offense you

must find the following elements have been proven beyond a

reasonable doubt:

That the defendant was a person prohibited by law from possessing,

using, controlling, selling, transferring, manufacturing or obtaining a

20

license to possess, use, control, sell, transport or manufacture a

firearm.

To be prohibited, the Commonwealth must show that the defendant

at the time of this conduct had been convicted

[PROSECUTOR]: | believe, Your Honor, that we -

THE COURT: - had been convicted of a crime under the statute, and

the defendant on a date more than 60 days from the time he became

a person prohibited by law from possessing, using, controlling,

selling, transferring, manufacturing or obtaining a license to possess,

use, control, sell, transfer or manufacture a firearm knowingly

possessed or used or sold or transferred or manufactured or

obtained a license to possess and use a firearm.

N.T. Jury Trial, 1/26/11, at 384-385.

Burton summarily asserts that he was unfairly prejudiced by counsel's failure

to object to this instruction. However, as the PCRA court found and the

Commonwealth argues, Burton suffered no such prejudice given that the trial

court did not, “in what can only be assumed to have been an error by

omission,” even mention the stipulation, much less the underlying conviction,

during the instruction. Commonwealth’s Brief at 9. As such, the jury “never

heard that [Burton] had a prior conviction that made him ineligible to possess

a firearm.” Id. There was no testimony about the prior conviction and it was

not mentioned during the instruction. Given these circumstances, we fail to

see any error in the PCRA court’s conclusion that Burton was not prejudiced

by counsel’s failure to object to this instruction.

To the extent Burton argues he was unfairly prejudiced by this charge

because the court used “former convict prohibited from having a firearm” as

opposed to “person not to possess a firearm,” this Court has previously

rejected a similar claim. In Commonwealth v. Antidormi, we held that a

defendant is not prejudiced by a trial court’s use of the term “felon not to

possess a firearm” as opposed to “person not to possess a firearm.” 84 A.3d

736, 754 (Pa. Super. 2014). We explained that:

this Court has utilized the terms ‘felon not to possess a firearm’ and

‘person not to possess a firearm’ interchangeably to refer to identical

21

conduct. Therefore, the terms...refer, interchangeably, to the

Commonwealth’s charge that, as a felon, [a defendant] illegally

possessed a firearm.

Id. at 753 -754 (citations omitted).

The same reasoning applies to Burton’s claim here, given that a former

version of Section 6105 was titled “Former convict not to own a firearm, etc.”

See 18 Pa.C.S.A. § 6105 (effective June 6, 1973, subsequently amended

June 13, 1995); see also Commonwealth v. Gillespie, 821 A.2d 1221, 1224

(Pa. 2003) (stating that the “clear purpose of § 6105 is to protect the public

from convicted criminals who possess firearms”). We therefore reject any

contention that counsel was ineffective for failing to object to the instruction

because of the court's use of the term “former convict.”

Burton also claims counsel should have requested a bifurcated trial on the

illegal possession of a firearm charge. Although not entirely clear, it appears

Burton is contending that counsel should have made such a request because

of the “spillover prejudice” that occurred from the jury knowing that Burton

was previously convicted of aggravated assault for purposes of the illegal

possession charge when considering their verdict on the other five offenses.

However, as explained above, counsel stipulated to the fact that Burton had a

qualifying conviction and the parties agreed not to mention the specific

offense underlying that conviction. Burton has not pointed to any place in the

record where the jury heard anything about the aggravated assault conviction.

We fail to see how this caused any “spillover prejudice” to Burton or how

counsel's failure to request a bifurcated trial in light of the stipulation

constituted ineffectiveness.

Commonwealth v. Burton, 2022 WL 2523158, at *4-6 (footnotes omitted).

Upon review, the Court finds that Burton’s challenge to the above-referenced jury

instruction lacks merit. The Superior Court found that Burton was not prejudiced based on

its reading of the jury charge as a whole. /d. The Superior Court noted that the trial court

did not even mention the stipulation, much less the underlying conviction, during the

instruction, and the jury “never heard that [Burton] had a prior conviction that made him

22

ineligible to possess a firearm.” /d. In light of the fact that there was no testimony about

Burton’s prior conviction, and the prior conviction was not even mentioned during the

instruction, the Superior Court found that Burton was not prejudiced by counsel's failure to

object to the instruction. Id. The Superior Court’s decision regarding Burton's challenge to

the jury instruction was reasonable in light of the evidence presented. Burton is not entitled

to habeas relief on this ground.

C. Ground Three

In ground three of the habeas petition, Burton alleges that trial counsel was

ineffective for failing to object to a jury instruction on accomplice liability for conspiracy to

commit first-degree homicide. (Doc. 1, at 8). Burton presented this ineffectiveness claim in

his PCRA proceedings. On appeal, the Superior Court rejected this claim on two bases: (1)

the claim was waived due to Burton’s failure to develop the claim; and (2) trial counsel did

object to the instruction. Commonwealth v. Burton, 2022 WL 2523158, at *6. The Superior

Court succinctly found:

Next, Burton maintains all prior counsel were ineffective for failing to argue

trial counsel was ineffective for failing to object to the homicide charge based

on accomplice liability. First of all, trial counsel did object to the court's

instruction. See N.T., 1/27/11, at 417-418. Moreover, Burton does not

explain what relief he hopes to secure by challenging counse''s

representation in regards to his homicide conviction given that this Court has

already vacated that conviction. No relief is due.

Commonwealth v. Burton, 2022 WL 2523158, at *6.

23

When the state court does not address the merits of a claim because the petitioner

failed to follow the state’s procedural rules in presenting the claims, the claim will be

considered procedurally defaulted if the rule upon which the state court relied is

independent of the constitutional issue and adequate to support the decision. Maples v.

Thomas, 565 U.S. 266, 280 (2012); Harris v. Reed, 489 U.S. 255, 260 (1989). “[A] state

procedural ground is not ‘adequate’ unless the procedural rule is ‘strictly or regularly

followed,” Johnson v. Mississippi, 486 U.S. 578, 587 (1988), and the rule “speaks in

unmistakable terms.” Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996) (abrogated on

other grounds by Beard v. Kindler, 558 U.S. 53 (2009)). Thus, the procedural disposition

must comport with similar decisions in other cases such that there is a firmly established

rule that is applied in a consistent and regular manner “in the vast majority of cases.” Banks

v. Horn, 126 F.3d 206, 211 (3d Cir. 1997) (quoting Dugger v. Adams, 489 U.S. 401, 410 n.6

(1989)).

Here, to the extent that this claim is considered default, such default is based on the

Superior Court's finding of waiver, specifically Burton's failure to develop the claim on

appeal. As a result of the state court’s finding that this claim was waived, the claim is

procedurally defaulted. Burton fails to aliege, as is his burden, the existence of either cause

or prejudice for the procedural default and none appears on the record. (Doc. 1, at 8-9;

Doc. 18, at 10-12). Neither does it appear that a miscarriage of justice would occur.

Accordingly, habeas review of this claim is foreclosed.

24

Assuming arguendo that Burton did not waive this claim, the Superior Court noted

that trial counsel did, in fact, object to the challenged jury instruction. Commonwealth v.

Burton, 2022 WL 2523158, at *6. This Court concludes that the Superior Court's ruling

does not involve an unreasonable application of Strickland’s first prong. The Superior Court

found no merit to Burton’s claim that trial counsel was ineffective for failing to object to a jury

instruction on accomplice liability, when he did lodge an objection. This Court will not

disturb the Superior Court’s ruling, given the narrow standard of review—whether the ruling

was a reasonable application of the Strickland standard.

D. | Grounds Four and Five

In his fourth claim, Burton alleges that trial counsel failed to call an individual

named Fred Jones as a witness at trial. (Doc. 1, at 9-12). In his fifth claim, Burton

alleges that the PCRA court erred in denying a new trial based on newly discovered

evidence. (Doc. 1, at 13). Respondent contends that these two claims are

predicated on the same grounds. (Doc. 10, at 17). The Superior Court addressed

these claims in conjunction and found that Burton was not entitled to relief as follows:

Burton also asserts all prior counsel were ineffective for neglecting to raise

trial counsel's ineffectiveness for failing to investigate and call Fred Jones as

a witness at his trial. According to Burton, he received a post-trial statement

from Jones reporting that Jones had been with Lynch on the night of the

shooting and had seen a man running away from the scene of the crime that

did not look like Burton. Burton contends that had counsel called Jones to the

stand and allowed the jury to hear his testimony, this would “have established

the reasonable doubt necessary for an acquittal.” Appellant’s Brief at 48.

This claim fails for several reasons.

25

In the first place, it does not appear from the record that Burton attached any

statement by Jones to his PCRA petition, as required by 42 Pa. C.S.A. § 9545

(d)(1)(i) and Pa.R.Crim.P. 902(A)(15). Nor does Burton assert PCRA counsel

was ineffective for failing to attach the statement. Burton does attach a hand-

written statement, dated July 23, 2012, signed by a person named Jones, as

an exhibit to his appellate brief. However, this statement is not verified, and it

also does not provide Jones’s address or date of birth as required by 42 Pa.

C.S.A. § 9545 (d)(1)(i) and Pa.R.Crim.P. 902(A)(15).

Nonetheless, even if Burton had complied with these procedural

requirements, we would not find this claim entitles him to any relief. Burton

claims that counsel should have called Jones to the stand because, according

to Jones’s statement, Jones could have definitively established that Burton

was not present at the scene of the crime. The statement reads in relevant

part:

| was out there with crackhead Jeff [Lynch]...1 know for a fact it

wasn’t you cuz the dude that ran outta the alley...was a light skinned

dude with a gr[a]y hoodie on. And you're Black as fuck.

Appellant's Brief, Exhibit C.

In making his argument, Burton does not cite the standard applicable to

claims alleging counsel's ineffectiveness for failing to call a witness to testify.

To prove such a claim, Burton must show that: 1) Jones existed; 2) counsel

was aware or should have been aware of Jones’s existence; 3) Jones was

willing and able to cooperate on behalf of Burton; and 4) the absence of the

proposed testimony prejudiced him. See Commonvweailth v. Johnson, 139

A.3d 1257, 1284 (Pa. 2016).

Even if Burton was able to show the first three elements of this standard,8 we

do not find he has established he was prejudicec py any failure to call Jones

to the stand. Burton asserts that Jones’s statement “completely removes

[Burton] from any crime.” Appellant’s Brief at 44. He fails to explain,

however, how the statement accomplishes that in light of the fact that Lynch

and McCallister each testified that they saw two men, and Jones described

only one of those two men.

26

In any event, Jones’s proposed testimony regarding the description of the

person he saw on the night of the shooting would have merely been

cumulative of the description given by Rochon. As such, Burton cannot show

prejudice and his ineffectiveness claim necessarily fails. See Johnson, 139

A.3d at 1284 (holding that Johnson had not suffered prejudice for purposes of

his claim that counsel had been ineffective for failing to call witnesses, when

those witnesses’ proposed testimony that Johnson was not present at the

crime scene would have simply been cumulative of the testimony of other

witnesses); Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008)

(stating that trial counsel will not be found ineffective for failing to call a

witness whose testimony is merely cumulative of that of other witnesses).

Burton also alleges he is entitled to relief on the basis of two statements,

including Jones's, because they constitute after-discovered exculpatory

evidence pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vi). The PCRA court did not

address this issue, as it was not included in Burton's pro se PCRA petition or

counsel's supplemental petition. To the extent Burton claims on appeal his

PCRA counsel was ineffective for failing to raise this issue, a recent decision

by our Supreme Court allows us to review this claim. See Commonwealth v.

Bradley, 261 A.3d 381 (Pa. 2021) (holding that a PCRA petitioner may, after a

PCRA court denies relief, and when acting pro se on appeal from that denial,

raise claims of PCRA counsel's ineffectiveness on appeal).

Burton claims that prior counsel, including PCRA counsel, were ineffective for

failing to raise the claim that Jones’s statement and the statement of Avery

McCraw, which McCraw also provided after Burton’s trial, were both after-

discovered evidence that entitled him to relief pursuant to 42 Pa.C.S.A. §

9543(a)(2)(vi). In the hand-written letter attached as an exhibit to Burton’s

brief, McCraw contends he was near the spot Granthon was murdered at the

time of the murder. The statement seems to be missing some parts, perhaps

even a page, but in essence McCraw maintains that he saw someone

dressed all in black speed walking down Mulberry Street, and also saw a man

in a gray-hooded sweatshirt with a gun in his hand. Neither this statement

nor Jones's statement offers Burton relief as after-discovered evidence.

To obtain relief based on after-discovered evidence, Burton must show the

evidence: 1) could not have been obtained prior to the conclusion of trial by

the exercise of reasonable diligence; 2) is not merely cumulative or

corroborative; 3) will not be used solely to impeach a witness's credibility; and

4) is of such a nature that a different verdict will likely result if a new trial is

an

granted. See Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super.

2012).

Here, in rejecting Burton's contention of after-discovered evidence as raised

in Burton’s 2014 supplemental PCRA petition, the PCRA court stated:

In the present case, two affidavits submitted by counsel indicate that

there were two additional witnesses the night of the homicide. Avery

McCraw sent [Burton] and his attorney at the time a letter on October

26, 2011. Subsequently, he verified the statement pursuant to 18

Pa.C.S. § 4904. A second letter by Fred Jones was received on July

23, 2012. It is not verified.

[Burton] must prove by a preponderance of the evidence that this

evidence is not cumulative. Mr. McCraw’s letter indicates he saw a

man in black on the street at the time of the shooting. Jeffrey Lynch

testified that he saw [a man] in black on the street at the time of the

shooting. Mr. Jones's letter indicated he saw a ‘light skinned dude.’

Again, during trial, Georgio [ ] Rochon, [Burton's] own witness,

testified that the person he saw at the scene of the murder was a

“light-complected [B]lack man” and not [Burton]. Nothing in the

letters/affidavits indicates any newly discovered evidence that was

not presented to the jury.

Trial Court Opinion, 457 MDA 2015, 2/10/2015, at 4 (unpaginated) (citations

and footnote omitted.)

While we found on appeal that we could not review this determination

because the PCRA court did not have jurisdiction to decide this claim after it

granted nunc pro tunc relief, see Burton, 457 MDA 2015 at * 7, we face no

such impediment here. We see no error in the PCRA court's conclusion that

the allegedly after-discovered evidence offered by Burton was merely

cumulative of evidence presented at trial. We add only that McCraw’s

allegation that he saw a man in a gray-hooded sweatshirt with a gun at the

scene of the murder was substantially cumulative of testimony provided by

Lynch, McCallister and Rochon. No relief is due. See Foreman, 55 A.3d at

537.

Commonwealth v. Burton, 2022 WL 2523158, at *7-9 (footnotes omitted).

28

To reiterate, when considering the prejudice prong of Strickland, a court must

evaluate the effect of counsel’s inadequate performance in light of the totality of evidence.

This Court does not inquire as to whether the Court “believes the state court's determination

under the Strickland standard was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111,

123 (2009) (citations omitted) (internal quotation marks omitted). Under this demanding

standard, Burton fails to show that the state court’s decision was an unreasonable

application of Strickland or that it was an unreasonable application of the facts in light of the

evidence presented. In evaluating prejudice, the Superior Court considered the totality of

the available evidence during the PCRA proceeding. In the Superior Court’s opinion, it

noted that in establishing whether defense counsel was ineffective for failing to call a

witness, a defendant must prove the witness existed, counsel was aware or should have

been aware of the witness’s existence, the witness was ready and willing to testify, and the

absence of the witness's testimony prejudiced the defendant. Commonwealth v. Burton,

2022 WL 2523158, at *7. In applying Pennsylvania's failure to call a witness standard to

Burton’s claim, the Superior Court found that even if Burton was able to meet the first three

elements, he failed to establish that he was prejudiced by any failure to call Fred Jones as a

witness. /d. The Superior Court noted that Jones’s proposed testimony regarding the

description of the person he saw on the night of the shooting would have merely been

cumulative of the description given by another witness. /d. Importantly, the Superior Court

29

also noted that: “Burton asserts trial counsel should have been aware of Jones. However,

in his next claim, Burton asserts that Jones’s statement constitutes after-discovered

evidence, which requires him to show that the evidence could not have been obtained prior

to trial by the exercise of due diligence. He cannot, of course, have it both ways.” /d. at 7

n.8.

On the whole, it is clear that the Superior Court’s prejudice analysis reflected a

reasonable application of “clearly established” federal law. See Harrington v. Richter, 562

U.S. 86, 101 (2011); Jacobs v. Horn, 395 F.3d 92, 106 (3d Cir. 2005). It was also a

reasonable determination of the facts in light of the evidence presented. Moreover, the

United States Court of Appeals for the Third Circuit has held that the precise choice made

here, to forego calling certain witnesses, is an appropriate tactical decision that does not

entitle a petitioner to habeas corpus relief on the grounds of ineffective assistance of

counsel. Alexander v. Shannon, 163 F. App’x 167, 175 (3d Cir. 2006). See also Sanders v.

Trickey, 875 F.2d 205, 212 (8th Cir. 1989) (trial counsel’s failure to call a witness “is

precisely the sort of strategic trial decision that Strickland protects from second-guessing’).

The Court thus finds that Burton is not entitled to relief on this claim.

E. Ground Six

In his penultimate claim, Burton alleges that trial counsel was ineffective for failing to

request a direct appeal on all charges. (Doc. 1, at 14). During PCRA appeal proceedings,

the Superior Court denied relief on this claim and reasoned as follows:

30

In his final ineffectiveness claim, Burton alleges prior counsel were ineffective

for failing to raise trial/appellate counsel’s failure to appeal all of his

convictions on direct appeal. He acknowledges that counsel challenged his

homicide and conspiracy convictions on appeal, and that his homicide

conviction was in fact vacated, but he asserts counsel should have also

appealed the four other convictions. He maintains counsel's failure in this

regard requires the restoration of his direct appeal rights nunc pro tunc. This

claim fails.

In support of his contention, Burton cites only to cases which stand for the

proposition that a petitioner is entitled to nunc pro tunc relief when counsel

has completely deprived the petitioner of any opportunity to appeal his

judgment of sentence by failing to pursue or perfect a requested direct

appeal. See, e.g., Commonwealth v. Champney, 783 A.2d 837, 841 (Pa.

Super. 2001) (holding trial counsel was ineffective for failing to file a

requested notice of appeal, leaving the petitioner without any opportunity to

appeal and entitling him to nunc pro tunc relief). This is not the situation here.

Instead, trial/appellate counsel filed a direct appeal on behalf of Burton raising

seven issues, two of which this Court found had merit. Therefore, Burton has

simply not shown that any request he made of counsel to file a direct appeal

was ignored or rejected by counsel, as he was required to do. See

Commonwealth v. Maynard, 900 A.2d 395, 397-398 (Pa. Super. 2006) (when

making a claim that counsel was ineffective for failing to file a direct appeal,

the petitioner must plead and prove that he requested counsel to file a direct

appeal on his behalf and counsel ignored or rejected that request).

Moreover, as the PCRA court found, Burton’s direct appeal raised the claim

that the verdict - in its entirety - was against the weight of the evidence. The

PCRA court noted that Burton’s appellate brief specifically stated that the “jury

verdict finding [Burton] guilty on the above referenced charges was so

contrary to the weight of the evidence presented at trial that a new trial is

required.” Appellant’s Brief, 385 MDA 2011, 7/15/11, at 12. This Court

considered, and rejected, this claim before granting Burton a new trial on the

basis of one of the other claims raised by counsel. Based on all of these

circumstances, Burton has failed to show the PCRA court erred by concluding

this final claim of ineffectiveness does not warrant any relief.

Commonwealth v. Burton, 2022 WL 2523158, at *9.

31

Federal law clearly established by the Supreme Court holds that “[s]trategic choices

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

unchallengeable.” Strickland, 466 U.S. at 690-91; see Wiggins v. Smith, 539 U.S. 510, 522-

23 (2003) (appropriate focus is on whether investigation supporting trial decision was itself

reasonable). Burton’s argument that counsel was ineffective “for failing to file a requested

direct appeal on all chargesj,]” (Doc. 1, at 14), is conclusory and soundly refuted by the

state court decision.

The record before the state court demonstrates that trial counsel made tactical

decisions reasonably designed to serve his client's best interest. Additionally, Burton fails to

demonstrate he suffered any prejudice resulting from trial counsel’s decisions. As the state

court decision highlights, trial/appellate counsel filed a direct appeal on behalf of Burton

raising seven issues, two of which the Superior Court found had merit. Commonwealth v.

Burton, 2022 WL 2523158, at *9. Additionally, the Superior Court found that Burton failed to

show that counsel ignored any of his requests, as he was required to do. /d. Itis

noteworthy that Burton’s direct appeal raised the claim that the verdict was against the

weight of the evidence. /d. The Superior Court considered, and rejected, this claim. Id.

Given the totality of the evidence in the state court record, fair-minded jurists would not

disagree that trial counsel had a reasonable basis to appeal certain claims.

Based on the above, the Court finds that the state court’s resolution of trial counsel's

failure to appeal all of Burton’s convictions on direct appeal was neither contrary to nor an

32

unreasonable application of the Strickland, nor was it based on an unreasonable

determination of the facts in light of the evidence presented in the state court proceedings.

Accordingly, Burton is not entitled to relief based on this claim.

F. Ground Seven

Lastly, Burton asserts that trial counsel’s alleged ineffective assistance, when viewed

as a whole, cumulatively caused him prejudice. (Doc. 1, at 15). The Superior Court

conclusively found that Burton’s averment of cumulative prejudice did not merit relief.

Commonwealth v. Burton, 2022 WL 2523158, at *10. The Superior Court stated as follows:

Burton's last two issues are that he is entitled to relief because of the

cumulative prejudicial effect of counsel's alleged errors and that he was

entitled to an evidentiary hearing on his ineffectiveness claims. Both of these

claims fail. See Commonwealth v. Tedford, 960 A.2d 1, 56 (Pa. 2008)

(citation omitted) (“[NJo number of failed claims may collectively warrant relief

if they fail to do so individually.”); Commonwealth v. Jones, 942 A.2d 903, 906

(Pa. Super. 2008) (stating that no hearing is necessary if it can be determined

without a hearing that any one of the three prongs of the ineffectiveness test

cannot be met). As such, no relief is due on any of the claims raised by

Burton.

Commonwealth v. Burton, 2022 WL 2523158, at *10.

The Third Circuit has held that “[i]ndividual errors that do not entitle a petitioner to

relief may do so when combined, if cumulatively the prejudice resulting from them

undermine the fundamental fairness of his trial and denied him his constitutional right to due

process.” Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008). Cumulative errors will be

deemed harmful only where “they had a substantial and injurious effect or influence in

33

determining the jury's verdict, which means that a habeas petitioner is not entitled to relief

based on cumulative errors unless he can establish actual prejudice.” /d. (internal quotation

marks omitted). To satisfy this standard, a petitioner must show that the errors complained

of “worked to his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.” Murray v. Carrier, 477 U.S. at 494. In this regard, the Third

Circuit “read[s] United States Supreme Court precedent as establishing the principle that the

stronger the evidence against the defendant, the more likely that improper arguments or

conduct have not rendered the trial unfair.” Marshall v. Hendricks, 307 F.3d 36, 69 (3d Cir.

2002).

The Pennsylvania Supreme Court has held that “no number of failed claims may

collectively warrant relief if they fail to do so individually.”. Commonwealth v. Miller, 987

A.2d 638, 672 (Pa. 2009) (citing Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586,

617 (2007); Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 56 (2008)). Thus, there is

a disparity between Pennsylvania precedent and the federal standard regarding claims of

cumulative prejudice, as federal law permits a claim of cumulative prejudice even where the

individual claims fail. See Fahy, 516 F.3d at 205. Since the state court presumably did not

examine this claim in light of federal law, the pre-AEDPA\ standards of review apply. Everett

v. Beaird, 290 F 3c 500, 508 (3d Cir. 2002). “Under that standard, a federal habeas court

owes no deference to a state court's resolution of mixed questions of constitutional law and

fact...whereas the state court’s factual findings are presumed to be correct unless [ ] the

34

state court's findings are not fairly supported by the record.” /d. (citations and quotations

omitted).

Burton is not entitled to relief on his claim of cumulative error. As highlighted

throughout this opinion, the evidence presented during trial strongly supports the finding that

Burton committed the acts as charged. See Marshall, 307 F.3d at 69 (“[T]he stronger the

evidence against the defendant, the more likely that improper arguments or conduct have

not rendered the trial unfair.”). The Court will deny this final claim for relief.

V. Certificate of Appealability

AEDPA codified standards governing the issuance of a certificate of appealability for

appellate review of a district court’s disposition of a habeas petition. It provides that

“[ulnless a circuit justice or judge issues a certificate of appealability, an appeal may not be

taken to the court of appeals from...the final order in a habeas corpus proceeding in which

the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. §

2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue...only if the

applicant has made a substantial showing of the denial of a constitutional right.” Id. §

2253(c)(2).

When the district court has rejected a constitutional claim on its merits, “[t]he

petitioner must demonstrate that reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). Applying that standard here, jurists of reason would not find it debatable

35

whether Burton’s claims should be denied for the reasons given herein. Accordingly, the

Court will not issue a certificate of appealability.

Vi. Conclusion

The Court will deny the § 2254 petition for writ of habeas corpus. (Doc. 1). A

separate Order shall issue.

Yo

bert D. Mariani

+ United States District Judge

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Dated: March _/ / , 2025

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