Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BOBBIE L. BROWN, : Civil No. 4:17-cv-1342

:

Petitioner, : (Judge Brann)

:

v. : (Magistrate Judge Carlson)

:

JOHN WETZEL, et al. :

:

Respondents. :

REPORT AND RECOMMENDATION

I. Introduction

Pending before the court is a petition for writ of habeas corpus filed by the

petitioner, Bobbie L. Brown. (Doc. 1). Brown was convicted by a jury in 2008 of

first-degree murder and related offenses, and he is currently serving a sentence of

life imprisonment in the Pennsylvania Department of Corrections at the State

Correctional Institution at Phoenix. Brown’s petition raises two grounds for relief,

alleging that his trial counsel was ineffective and that the jury was given erroneous

instructions that violated his due process rights.

Our review of the record demonstrates that Brown’s claim of ineffective

assistance was thoroughly considered and denied by the state courts based on a

finding that Brown’s counsel was not ineffective, and that Brown suffered no

prejudice. Moreover, Brown’s jury instruction claim is unexhausted and

procedurally defaulted, as he did not raise it in the state courts, and he has not shown

cause to excuse that procedural default. Accordingly, none of Brown’s claims

warrant habeas relief, and we will recommend that his petition be denied.

II. Statement of Facts and of the Case

The factual background of the instant case was aptly summarized by the trial

court in its decision denying Brown’s petition for post-conviction relief:1

The charges ar[o]se out of a shooting which occurred on October 24,

2007, in the area of 19th and Brookwood Streets near Double D’s Bar

in the City of Harrisburg. [Brown] shot and killed the decedent,

[Victim].

[Victim] and [Brown] were both romantically involved with a Tionna

Mangus at various times over the preceding several years. During the

periods of time that Ms. Mangus broke up with [Victim], she dated

[Brown]. When she resumed her relationship with [Victim], she

continued to call [Brown] every few months, and [Brown] returned her

calls. [Victim] knew of the phone calls and would become enraged

when her phone log reflected that she and [Brown] called each other.

On several occasions, [Victim] confronted [Brown] while out at a bar,

and made threats. [Brown] did not contact police about the

encounter[s].

On June 10, 2007, while at a family gathering [Brown] received several

threatening calls from [Victim] on his cell phone. [Brown's] girlfriend,

mother and sister answered the phone; [Victim] made threats to them

as well. [Brown] requested that his brother intervene to help mediate

the situation.

1 The Superior Court, in its decision remanding the petition to the PCRA court,

adopted the PCRA court’s factual summary. Commonwealth v. Brown, 2013 WL

11251530 (Pa. Super. Ct. 2013).

From June 30, 2007 through October 24, 2007, the day of the shooting,

[Brown] had no problems with [Victim]. As of October 24, 2007,

[Brown] believed that the problem had settled down.

On the evening of the shooting, [Brown] was driving a black Denali, a

large SUV, which belonged to his girlfriend Diedre Poage. [Brown]

was aware that his girlfriend kept a gun in the glove compartment of

the SUV. He received a phone call from a woman he briefly met, Zina

Bass, and made plans to meet her at Double D's Bar. As [Brown]

approached the vicinity of the bar to pick up Ms. Bass, he slowed the

vehicle, and saw [Victim] walking nearby; [Brown] took the gun out of

the glove compartment and put it beside him. Ms. Bass got into the

vehicle. [Victim] told his cousin [Michael Cooper], whom he was with,

that he was going to “go holler at his boy.” As [Brown] began to drive

away, [Victim] walked across the street and approached the vehicle.

[Victim] said to the [Brown], “say something now bitch” then began

punching him. [Brown] grabbed the gun and began shooting. Zina Bass

jumped out of the vehicle through the window.

A Paula Williams was coming home from church that evening, and

turned onto Brookwood Street, behind the black Denali. She observed

the Denali pull to the curb, then immediately pull out again, and stop,

blocking the road. She saw a person get out of a white vehicle, and walk

across in front of her vehicle to the black SUV. Ms. Williams watched,

as she waited to see if she could get around the stopped SUV. The

person who had approached the SUV raised his right hand. It appeared

that he put his hand through the window; he then took it out of the

window. That person then fell to the ground, face forward. As the

person was on the ground, Ms. Williams saw a hand reach out of the

Denali, pointing downward, then two flashes.

[Brown] then drove to his girlfriend's house. He called several family

members; [Brown] and his girlfriend drove to Baltimore. They learned

by checking the internet that [Victim] died. Two days later, [Brown]

turned himself in to Harrisburg Police.

Wayne Ross, MD, a forensic pathologist, conducted an autopsy on

[Victim]. Dr. Ross opined that [Victim] died of multiple gunshot

wounds, the first through the front of his body in the right shoulder, and

the remaining [five] in his back. He opined that based upon the absence

of soot of gunshot residue, the shots were fired from a distance of 2 ½

to 3 feet.

Commonwealth v. Brown, 2013 WL 11251530, at *1-2.

Brown was charged with first-degree murder and carrying a firearm without

a license. Although he claimed that he shot the victim in self-defense, Brown was

convicted by a jury of these charges, and the trial court sentenced him to a mandatory

sentence of life imprisonment. Brown appealed, and his conviction and sentence

were affirmed by the Pennsylvania Superior Court on March 29, 2010. The

Pennsylvania Supreme Court denied Brown’s petition for allowance of appeal on

October 13, 2010. Brown then timely filed a petition under Pennsylvania’s Post

Conviction Relief Act (“PCRA”), alleging that his trial counsel was ineffective in

several respects. This petition was denied by the PCRA court, and Brown appealed

to the Superior Court.

The Superior Court upheld the PCRA court’s findings with respect to three of

the five claims raised in Brown’s petition. However, the court remanded the

remaining two claims to the PCRA court for a hearing to determine counsel’s

ineffectiveness. Relevant to the instant motion is Brown’s claim that his counsel was

ineffective for failing to impeach one of the Commonwealth’s witnesses, Michael

Cooper, with a prior conviction for crimen falsi. While the PCRA court found that

this evidence was “merely cumulative” given counsel’s cross examination of this

witness about his prior inconsistent statements, the Superior Court found that

counsel’s cross examination was not so effective as to render this evidence

cumulative. Thus, the petition was remanded for an evidentiary hearing.

At the time of this initial Superior Court ruling it was represented that the

crimen falsi for Michael Cooper consisted of convictions for retail theft, forgery,

tampering with physical records, and passing bad checks, an extensive history of

crimen falsi. In fact, on remand it was determined that Cooper’s criminal history was

far less significant, and consisted of a single retail theft conviction.

On remand, the PCRA court held two evidentiary hearings, which consisted

of testimony from multiple individuals, including trial counsel. At the second

hearing, a stipulation was entered as to the witness’s criminal record at the time of

trial. Ultimately, noting that trial counsel had a sound overall strategy to impeach

the witness about his prior inconsistent statements to law enforcement about the

shooting, and further finding that Brown did not suffer prejudice, the PCRA court

denied the petition. This denial was affirmed by the Superior Court, which upheld

the PCRA court’s view that, even if trial counsel’s performance could be deemed

deficient, Brown suffered no prejudice. Brown’s petition for allowance of appeal

was denied by the Pennsylvania Supreme Court on July 27, 2017).

Thereafter, Brown, through his PCRA counsel, filed the instant petition for

habeas corpus. (Doc. 1). His initial petition raised only one ground for relief—

ineffective assistance of counsel for failing to impeach Michael Cooper with a prior

conviction. The respondents responded to the petition, and counsel for Brown filed

a reply. (Docs. 4, 6). Subsequently, Brown’s counsel withdrew on May 24, 2017

(Doc. 7), and Brown was unrepresented until counsel entered his appearance on July

5, 2018. (Doc. 8). Counsel then filed an amended habeas petition, raising Brown’s

initial ground for relief along with a new ground for relief—that the jury instructions

were erroneous and violated due process of law. (Doc. 15). The respondents have

filed a response to the amended petition, and Brown has filed a reply. (Docs. 20, 22).

Thus, the petition is ripe for resolution.

III. Discussion

A. State Prisoner Habeas Relief–The Legal Standard.

(1) Substantive Standards

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

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

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

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

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

of a person in custody pursuant to the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws

or treaties of the United States.

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

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

unless it appears that—

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

the State;

..........

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

merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.

28 U.S.C. § 2254(a) and (b).

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

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

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

may “entertain an application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the

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

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

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

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

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

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

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

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

401–02 (3d Cir. 2004).

(2) Deference Owed to State Courts

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

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

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

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

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

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

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

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

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

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

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

standard of review, federal courts frequently decline invitations by habeas

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

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

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

222, 228 (3d Cir. 2002).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

overturned on factual grounds unless it was objectively unreasonable in

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

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

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

correct, and the petitioner bears the burden of rebutting this

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

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

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

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

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

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

(3) Ineffective Assistance of Counsel Claims

These general principles apply with particular force to habeas petitions that

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

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

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

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

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

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

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

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

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

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

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

Cir. 2001).

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

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

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

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

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

below an objective standard of reasonableness under prevailing professional norms.

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

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

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

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

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

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

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

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

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

to undermine confidence in the outcome.” Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Although sometimes couched in different language, the standard for

evaluating claims of ineffectiveness under Pennsylvania law is substantively

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

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

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

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

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

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

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

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

Strickland. Billinger v. Cameron, 2010 U.S. Dist. LEXIS 63759, at *11, 2010 WL

2632286 (W.D. Pa. May 13, 2010). In order to prevail against this standard, a

petitioner must show that the state court’s decision “cannot reasonably be justified

under existing Supreme Court precedent.” Hackett v. Price, 381 F.3d 281, 287 (3d

Cir. 2004); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where the

state court’s application of federal law is challenged, “the state court’s decision must

be shown to be not only erroneous, but objectively unreasonable.”) (internal citations

and quotations omitted).

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

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

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

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

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

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

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

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

“The proper measure of attorney performance remains simply

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

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

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

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

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

thorough investigation of law and facts relevant to plausible options are

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

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

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

is great.

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

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

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

defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial

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

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

strategy employed was unsound.” Thomas v. Varner, 428 F.3d 491,

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

Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009).

(4) Procedural Benchmarks – Exhaustion and Procedural Default

a. Exhaustion of State Remedies

State prisoners seeking relief under section 2254 must also satisfy specific

procedural standards. Among these procedural prerequisites is a requirement that

the petitioner “has exhausted the remedies available in the courts of the State” before

seeking relief in federal court. 28 U.S.C. § 2254(b). In instances where a state

prisoner has failed to exhaust the legal remedies available to him in the state courts,

federal courts typically will refuse to entertain a petition for habeas corpus. Whitney

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

This statutory exhaustion requirement is rooted in principles of comity and

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

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

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

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

system of government to prevent a federal district court from upsetting a state court

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

constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring

exhaustion of claims in state court also promotes the important goal of ensuring that

a complete factual record is created to aid a federal court in its review of § 2254

petitions. Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking

to invoke the writ of habeas corpus, therefore, bears the burden of showing that all

of the claims alleged have been “fairly presented” to the state courts, and the claims

brought in federal court must be the “substantial equivalent” of those presented to

the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir.

1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot

avoid this responsibility merely by suggesting that he is unlikely to succeed in

obtaining state relief, since it is well-settled that a claim of “likely futility on the

merits does not excuse failure to exhaust a claim in state court.” Parker v. Kelchner,

429 F.3d 58, 63 (3d Cir. 2005).

Although this exhaustion requirement compels petitioners to have previously

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

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

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

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

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

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

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

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

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

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

b. Procedural Default

A necessary corollary of this exhaustion requirement is the procedural default

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

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

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

bar further review of the claim. In such instances:

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

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

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

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

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

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

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

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

procedural default may come into play. A procedural default occurs

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

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

courts may not consider the merits of a procedurally defaulted claim

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

violation of the federal law or unless the applicant demonstrates that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the procedural default rule, it is clear that:

With regard to the prejudice requirement, the habeas petitioner must

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

prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional

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

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

ineffective assistance claim, we have stated that prejudice occurs where

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

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

Id. at 193 (citations omitted).

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

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

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

338.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

present a claim in state court, Ford, 498 U.S. at 423-424, 111 S. Ct. 850,

112 L.Ed.2d 935.

Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007).

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

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

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

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

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

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

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

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

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

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

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

“fundamental miscarriage of justice.”

B. Brown’s Claims are Either Unexhausted and Procedurally Defaulted,

or Without Merit.

As we have explained, Brown raises two grounds for relief in his amended

petition. First, he argues that his trial counsel was ineffective for failing to impeach

Michael Cooper with his prior conviction for crimen falsi. Additionally, Brown

contends that the jury was given erroneous instructions with respect to the standard

for “reasonable doubt” and the burden of proof for self-defense. However, after a

review of the record, we conclude that Brown’s ineffective assistance claim is

without merit, and further, that his claim regarding the jury instructions is

procedurally defaulted. Thus, we will recommend that this petition be denied.

(1) Brown’s Ineffective Assistance of Counsel Claim is Without

Merit.

Brown first contends that his trial counsel was ineffective because counsel

failed to impeach one of the Commonwealth’s witnesses with a prior conviction.

This witness, Michael Cooper, was with the victim before the shooting occurred, and

had allegedly given a statement to the police about what had occurred the night of

the shooting, which was inconsistent with his testimony at trial on direct

examination. The PCRA court, after two hearings on the matter, ultimately found

that counsel was not ineffective, and the Superior Court affirmed this finding.

At the first hearing, trial counsel testified regarding the cross examination of

Cooper, who was the victim’s cousin. Counsel stated that he did not recall having a

record of Cooper’s criminal history but testified: “I can’t wrap my head around the

fact that if I had had a crimen falsi conviction for a witness that I wouldn’t have used

it.” (Doc. 6-2, at 18). However, counsel also testified that having, and moreover,

using the prior conviction to impeach the witness, “[did not] necessarily mean it

would have had a material impact on the outcome of the trial.” (Id., at 20).

Additionally, at the second hearing, a stipulation was entered that the crimen falsi

for Michael Cooper consisted of one conviction for retail theft, not convictions for

forgery, tampering with physical records, and passing bad checks, as were relied on

in Brown’s appeal. (Doc. 6-3, at 5-6).

Ultimately, after both hearings, the PCRA court denied Brown’s petition.

(Doc. 6-4 at 2). The court noted initially that Brown’s appeal relied on the three

crimen falsi that he believed were included in Cooper’s criminal history, and that

Cooper actually had only one prior conviction for retail theft, a petty misdemeanor.

(Id., at 12). Moreover, the court concluded that trial counsel’s overall strategy

regarding the cross examination of Cooper was reasonable. Counsel’s focus was to

damage the witness’s credibility by confronting him with a prior statement he had

made to police, which contradicted his testimony on direct examination. Counsel

indicated at the hearing that he believed this contradiction was important to point out

on cross examination, as he had corroborating testimony from a detective. Moreover,

the court found that, even if counsel had the prior conviction and had used it to

impeach Cooper, “that may have resulted in Cooper being viewed as a liar again on

cross examination, just after [counsel] had just gotten him to admit that he lied on

direct examination.” (Id., at 14). Additionally, although the PCRA court found that

Brown’s counsel was not ineffective, the court also concluded that, even if counsel

had been ineffective, Brown suffered no prejudice. Not only did counsel get Cooper

to admit that he lied on the stand, but there was damaging video footage of the

shooting and a third-party eye witness, Paula Williams, whose testimony “cast

serious doubt on whether the impeachment would have had any material impact.”

(Id.)

The Superior Court agreed in its decision affirming the denial of Brown’s

PCRA petition, noting that any impeachment of Cooper using his prior conviction

was not likely to have a material impact on the ultimate outcome of the trial. The

court noted that Brown’s defense to the murder charge was self-defense. However,

testimony from Paula Williams indicated that the victim “was prone when Brown

fired at least two shots,” and that the medical examiner testified that the victim

suffered five gunshots to his back. (Doc. 4-3, at 96). Recognizing that it was the

Commonwealth’s burden to disprove the theory of self-defense, the court found that,

given this damaging evidence against Brown, “it is highly unlikely that [the jury]

would have believed that Brown did not continue the use of deadly force beyond

what was necessary for self-defense. Nor is it likely that they would have found that

Brown availed himself of the possibility of retreating from the altercation started by

[the victim].” (Id.) Ultimately, the court agreed with the PCRA court that Brown was

not prejudiced and affirmed the denial of his petition.

In evaluating this ineffectiveness claim we are mindful that we do not write

upon a blank slate. Instead, a “doubly deferential judicial review that applies to a

Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). “Furthermore, in considering whether a

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

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

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

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

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

Judged by these standards, we cannot conclude that the state court’s decision

involved an unreasonable application of Strickland or was based on an unreasonable

determination of the facts. To the contrary, both the PCRA court and the Superior

Court found that, even if counsel could be deemed ineffective for failing to impeach

the witness with his prior conviction, which was a conviction for a petty

misdemeanor, Brown was not prejudiced because the other evidence against him

was highly probative and thoroughly contradicted his claim of self-defense. Indeed,

entirely aside from Cooper’s testimony, there was substantial evidence which

undermined Brown’s claim of self-defense. Simply put, the fact that there was video

footage of the shooting; an eye witness testified that the victim was lying prone on

the ground when Brown shot him; and the autopsy results which revealed that the

victim was shot five times in the back, all make it extremely unlikely that the

outcome at trial would have been different had the jury known about Michael

Cooper’s prior conviction for retail theft. Thus, given the weight of this evidence

rebutting Brown’s self-defense claim and the fact that we must afford deference to

the state court’s findings, we cannot conclude that Brown was prejudiced by any

alleged ineffectiveness of counsel. Accordingly, this ineffective assistance claim has

no merit and is not a basis on which this court should grant habeas relief.

(2) Brown’s Jury Instruction Claim is Unexhausted and

Procedurally Defaulted.

Brown also contends that habeas relief is warranted because the jury received

erroneous instructions with respect to the standard for “reasonable doubt” and the

burden of proof for the defense of self-defense. Brown acknowledges that his claim

is unexhausted and procedurally defaulted but contends that he has “cause” to excuse

the procedural default because both his trial counsel and his PCRA counsel failed to

raise the issue. However, a review of the merits of this claim demonstrates that the

claim has no merit, and thus, counsel could not have been ineffective for failing to

raise it. Accordingly, this claim is procedurally defaulted and does not afford Brown

relief.

Section 2254 states that “[t]he ineffectiveness or incompetence of counsel

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

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

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

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

constitutionally ineffective assistance of counsel in such proceedings.” Coleman v.

Thompson, 501 U.S. 722, 752 (1991) (citing Pennsylvania v. Finley, 481 U.S. 551

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

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

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

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

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

States”).

Brown does not bring a claim directly against his PCRA counsel, but rather

argues that his jury instruction claim fits within the narrow exception announced by

the Supreme Court in Martinez v. Ryan, 566 U.S. 1 (2012), which held:

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

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

default will not bar a federal habeas court from hearing a substantial

claim of ineffective assistance at trial if, in the initial-review collateral

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

ineffective.

Martinez, 566 U.S. at 17.

The Martinez exception to the procedural default doctrine is narrow in that it

provides a petitioner with a method to establish “cause” for procedural default on an

ineffectiveness claim at trial by asserting that post-conviction counsel was also

ineffective in failing to preserve the claim for review. Id. It does not, however, allow

a petitioner to rely on the ineffectiveness of post-conviction counsel as a ground for

relief, as that is precluded by § 2254(i). Id. Therefore, to the extent that the petitioner

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

relief should be denied.

Further, to the extent Brown seeks to use PCRA counsel’s alleged

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

ineffective assistance claims, he has not met his burden of proving cause and

prejudice. Under Martinez, the failure to raise a claim in a PCRA petition is excused

only if counsel rendered ineffective assistance in developing, or failing to develop,

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

assistance of trial counsel that was not raised must be a substantial one—that is, it

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

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Burt v. Titlow, 134 S. Ct. 10, 17

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

In the instant case, in our view, Brown’s claim of ineffective assistance—that

counsel failed to raise the issue of erroneous jury instructions—does not meet the

Martinez standard because it does not have arguable merit.2

2 We note that Brown’s counsel has obtained affidavits from Brown’s trial counsel

and PCRA counsel. (Docs. 17-1, 17-2). While these affidavits apparently concede

that counsel failed to raise this claim on both direct appeal and in a PCRA petition,

we conclude that this underlying claim has no merit, and thus, as explained in more

detail below, the failure to raise this claim cannot excuse Brown’s procedural

default.

Brown contends that the trial court gave the jury an erroneous reasonable

doubt instruction because the language of the instruction lessened the

Commonwealth’s burden of proof. The jury instruction given was, in part, as

follows:

A reasonable doubt is such doubt that would cause a reasonable and

careful person to restrain from acting in matters of importance in your

own affairs. . . . I want to tell you what reasonable doubt is not. I give

you the definition twice, and then I’m going to tell you what it is not. It

is not beyond all doubt or a shadow of a doubt or any doubt. There

would never be a conviction in a criminal case because we can always

have a doubt or some doubt about what we do in every circumstance

and situation. So it’s not beyond all doubt or a shadow of a doubt or

any doubt. It has to be an actual and real doubt that you have from the

evidence or lack of evidence that was presented to you.

It is more, it is more though than a mere probability or a mere suspicion

about what occurred. If you go back there and say, I’ve examined the

evidence and I believe this is probably what occurred or this is what is

likely to have occurred, it’s got to be more weighty and more persuasive

than that. Proof beyond a reasonable doubt is that you have an actual

and real doubt about what was presented to you in this matter. And if

you have that reasonably doubt, then your duty is to find the Defendant

not guilty because he is cloaked in that presumption of innocence.

(Doc. 4-2, at 237-38).

Brown contends that the use of the phrase “restrain from acting” lessened the

Commonwealth’s burden of proof, and he relies on Thomas v. Horn, 570 F.3d 105

(3d Cir. 2009), in which the Third Circuit criticized the use of this phrase. However,

in Thomas, although the Court of Appeals criticized this language, it held that the

use of this phrase “does not, by itself, so raise the threshold as to ‘suggest a higher

degree of doubt than is required for acquittal under the reasonable doubt standard.’”

Thomas, 570 F.3d at 119 (quoting Cage v. Louisiana, 498 U.S. 39, 41 (1990)).

Ultimately, the Court found that, while the use of “restrain from acting” is not ideal,

“it is not enough to render its entire instruction unconstitutional.” Id., at 119-20. See

also Schultz v. Wenerowicz, 2015 WL 10767484, at *15 (E.D. Pa. Oct. 5, 2015)

(citing Thomas and holding that the use of the word “refrain from acting” did not

render the reasonable doubt instruction unconstitutional).

On this score, Brown’s amended petition concedes that this phrase, by itself,

does not render the instruction erroneous. However, he contends that the use of this

phrase, along with the fact that the trial court substituted the word “it” in place of

“reasonable doubt” in the instruction, rendered the entire instruction

unconstitutional, as the instruction allegedly permitted the jury to convict Brown

based on a “mere suspicion” or “probability.”

On this score, we conclude that the entire reasonable doubt instruction, “taken

as a whole, fairly and accurately conveys the essential meaning.” Commonwealth v.

Uderra, 862 A.2d 74, 92 (Pa. 2004) (citing United States v. Park, 421 U.S. 658, 674

(1975)). In this case, the trial judge clearly articulated the standard for reasonable

doubt, defining what it is and what it is not. Particularly, with respect to the

petitioner’s issue with the “probability” language, the trial court explicitly stated that

reasonable doubt is “more weighty” than a probability: “If you go back there and

say, I’ve examined the evidence and I believe this is probably what occurred or this

is what is likely to have occurred, it’s got to be more weighty and more persuasive

than that.” (Doc. 4-2, at 237-38) (emphasis added). Indeed, our review of the entire

instruction demonstrates that the trial court clearly conveyed the standard for

reasonable doubt, and thus, counsel cannot be deemed ineffective for failing to

object to the instruction.

Finally, Brown contends that the court’s instruction on the defense of self-

defense improperly shifted the Commonwealth’s burden of proof to him, rendering

the instruction unconstitutional. On this score, we note that once the defense of self-

defense was properly raised by Brown, it was the Commonwealth’s burden to

disprove that Brown acted in self-defense. See Commonwealth v. Smith, 97 A.3d

782, 787 (Pa. Super. Ct. 2014) (“If the defendant properly raises self-defense . . . the

burden is on the Commonwealth to prove beyond a reasonable doubt that the

defendant’s act was not justifiable self-defense”) (internal quotations and citation

omitted). To sustain this burden, the Commonwealth need only establish one of the

following: “1) the accused did not reasonably believe that he was in danger of death

or serious bodily injury; or 2) the accused provoked or continued the use of force; or

3) the accused had a duty to retreat and the retreat was possible with complete

safety.” Id. (quoting Commonwealth v. Hammond, 953 A.2d 544, 559 (Pa. Super.

Ct. 2008)).

Here, Brown argues that the jury instructions improperly shifted the burden to

him to prove that he acted in self-defense. However, when the trial judge instructed

the jury on the defense of self-defense, judge first stated: “It is not for the defense to

prove that they acted in self-defense. The Commonwealth has the burden of proving

beyond a reasonable doubt that the Defendant did not act in self-defense.” (Doc. 4-

2, at 240). The judge then instructed the jury on the use of deadly force in self-

defense and explained that there were three ways for the Commonwealth to disprove

the theory of self-defense—to show that Brown did not reasonably believe he was

in danger of death or serious bodily injury, that he either provoked or continued the

use of force beyond what was necessary, or that he could have retreated safely and

failed to do so. (Id., at 241, 244-46). The judge then stated the following: “If the

Commonwealth establishes any one of those or proves those to the contrary, then he

has no claim of self-defense and you would consider the crimes that are going to be

on your verdict slip.” (Id., at 247). Following the initial charge, the jury raised

several questions about the elements of the offenses charged, including a question

regarding self-defense. (Id., at 278). The trial judge then reviewed the instruction on

self-defense, again stating: “In order to find the defense of self-defense, the

Defendant doesn’t have to prove that. The Commonwealth has the burden of proving

beyond a reasonable doubt that the Defendant is not -- did not act in self-defense.”

(Id.)

Given the court’s repeated admonitions that the burden for poof always rested

with the Commonwealth, we cannot conclude that the self-defense instruction given

by the trial judge improperly shifted the burden to the petitioner to prove he acted in

self-defense. To the contrary, the judge explicitly stated, more than once, that it was

the Commonwealth’s burden to prove that the petitioner did not act in self-defense,

and that the Commonwealth must prove that beyond a reasonable doubt. Thus,

counsel cannot be deemed ineffective for failing to object or raise this issue with the

court, and further, in his PCRA petition. See United States v. Mannino, 212 F.3d

835, 840 (3d Cir. 2000) (finding that counsel cannot be held to be ineffective under

Strickland for the failure to raise an issue on appeal if the claim is not meritorious);

Commonwealth v. Chmiel, 30 A.3d 1111, 1148 (Pa. 2011) (finding that the appellant

could not prevail on his claims of ineffective assistance of appellate counsel where

his underlying ineffective assistance of trial counsel claims lacked merit).

Accordingly, Brown’s claim that his due process rights were violated by erroneous

jury instructions is without merit, and thus trial counsel and PCRA counsel’s failure

to raise the claim cannot constitute “cause” to excuse the claim from being

procedurally defaulted.

In sum, the grounds on which Brown believes he is entitled to habeas relief

are meritless. The state court properly determined that trial counsel was not

ineffective with respect to the cross examination of Michael Cooper. Further,

Brown’s jury instruction claim is without merit, and thus his counsel’s failure to

raise the claim does not excuse his procedural default. Accordingly, we recommend

that Brown’s petition be denied.

IV. Recommendation

Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED

that the petition for a writ of habeas corpus in this case be DENIED, and that a

certificate of appealability should not issue.

The petitioner is further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge’s proposed findings,

recommendations or report addressing a motion or matter described in

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the

disposition of a prisoner case or a habeas corpus petition within

fourteen (14) days after being served with a copy thereof. Such party

shall file with the clerk of court, and serve on the magistrate judge and

all parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is

made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge,

however, need conduct a new hearing only in his or her discretion or

where required by law, and may consider the record developed before

the magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

Submitted this 15th day of May, 2019.

/s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge