Pennsylvania Cases August 11, 2021: Moore v. Luther

Case Description

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District Judge William S. Stickman

REPORT AND RECOMMENDATION

LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION

For the following reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) filed by Petitioner James Stephen Moore be denied, and it is further recommended that a certificate of appealability also be denied.

II. REPORT

Currently pending before the Court is a Petition for Writ of Habeas Corpus (“Petition”) filed by James Stephen Moore (“Petitioner”) pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner challenges his September 28, 2015 judgment of sentence out of Westmoreland County, Pennsylvania.

A. Factual and Procedural Summary

The Pennsylvania Superior Court, in Petitioner's direct appeal, provided the following summary of the underlying factual history:

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The facts of this case involve a drug trafficking enterprise in which Appellant was a principal member. Much of the testimony against Appellant was relayed by eight admitted heroin addicts. One such person, Jessica Bales, testified to meeting with Appellant in the summer of 2011 to sell heroin for him. Ms. Bales acknowledged that she did not personally observe Appellant sell heroin, but maintained that he kept a shoe box containing heroin in the ceiling tiles of her apartment. During this time, Appellant also introduced Ms. Bales to Dominick Haynes, also known as Dot or Dottie. Mr. Haynes was tried together with Appellant. According to Ms. Bales, Mr. Haynes stayed at her apartment and she personally witnessed him sell heroin. She also received heroin in exchange for allowing Appellant and Mr. Haynes to sell heroin from her residence. Ms. Bales moved later that fall from that apartment to a trailer in Mennock Manor, Greensburg. There, Mr. Haynes and Chance “Sky” McKiver sold heroin. Mr. McKiver had previously sold heroin from Ms. Bales' prior apartment as well. Mr. Hayne and Mr. McKiver supplied Ms. Bales with heroin in exchange for using her home.

During the fall of 2011, Kelsey Graham, a twenty-two-year-old women and heroin addict, purchased heroin from Appellant. Ms. Graham averred that Appellant began to provide her with four stamp bags of heroin in exchange for sex. Further, Ms. Graham traveled with Appellant to New Jersey on November 1, 2011, so that he could purchase heroin for resale in Pennsylvania. A New Jersey State Trooper, Daniel Wojcik, was able to confirm this trip because he had conducted a traffic stop of the two. When Appellant and Ms. Graham returned to the Greensburg area, Appellant gave her ten stamp bags of heroin.

Around this same time, Jillian Davis, another heroin addict, returned to her Hawksworth Garden apartment after a stay in rehab. She then met Mr. McKiver and another individual, Tyrone Leonard, in order to purchase heroin. Ms. Davis allowed the two men to sell heroin from her apartment for several days. Thereafter, Ms. Davis met Appellant, who inquired if other dealers could stay at her apartment. She agreed and Mr. Haynes and Chauncy “Gunner” Bray began to sell heroin in December 2011 and January 2012. In January 2012, Ms. Davis returned to rehab and gave Mr. Bray a key to her apartment. Mr. Bray agreed to pay her rent for January.

Additional testimony revealed that on December 7, 2011, Appellant met with Anna Morcheid and Mr. Bray at a Red Robin restaurant. Mr. Bray had recently been released from prison. Before he was incarcerated, Mr. Bray provided Appellant with a cell phone containing heroin contacts. In addition, he had given to Ms. Morcheid a cell phone with contacts of individuals who purchased cocaine. Mr. Bray and Appellant apparently had some dispute over a woman. The Red Robin meeting was designed to settle the issue. While the three individuals were meeting at Red Robin, a confidential informant (“CI”) working with Detective Jerry Vernail of the Greensburg Police and State Trooper Greg

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Norton arranged to purchase cocaine. Ms. Morcheid left the restaurant and provided crack cocaine to the CI.

As a result of the Red Robin meeting, Mr. Bray began to sell heroin that was supplied by Appellant. According to Mr. Bray, Appellant would provide him with ten bricks of heroin for $2500, and Mr. Bray would sell that product for $5000. Mr. Bray indicated that he used other dealers to sell the heroin, including his girlfriend Nicole Dudek. Mr. Bray estimated that for three or four weeks he sold between ten and thirty bricks of heroin, provided to him by Appellant, every few days.

In January 2012, Detective Vernail and Trooper Norton began to utilize Jimmie Knight as a CI. Mr. Knight would contact a certain 724-217-xxxx number to arrange for heroin purchases. On January 19, 2012, Mr. Knight called that number and met Appellant at the Hawksworth Garden apartments. Trooper Norton was with Mr. Knight at the time in Mr. Knight's car. However, Mr. Knight and Appellant walked behind the apartment building out of Trooper Norton's sight. Mr. Knight returned with twenty-four bags of heroin and without the $190 provided by police for the purchase.

A similar incident occurred on January 23, 2012. Mr. Knight telephoned the aforementioned number and was instructed to return to the same location. Both he and Trooper Norton traveled to the Hawksworth Garden apartments. Mr. Knight again went out of the sight of the trooper for approximately ten to fifteen seconds, when he entered a stairwell. Mr. Knight then turned over twenty stamp bags of heroin. Although Trooper Norton did not see Appellant on this date, Mr. Knight maintained that he twice purchased heroin from Appellant in the Hawksworth Garden apartment stairwell.

The following day Trooper Norton and Mr. Knight arranged for an additional heroin purchase. On this occasion, Mr. Knight called another number, 412-853-xxxx, and spoke to an individual identified only as “Sosa.” Trooper Norton was able to purchase fourteen stamp bags of heroin from Sosa in exchange for $120. The day after this purchase, Trooper Norton and Mr. Knight were instructed to go to Ms. Bales' residence at Mennock Manor to make their desired heroin purchase. Sosa exited Ms. Bales' trailer and sold Mr. Knight fifty stamp bags of heroin for $350.

Trooper Norton and Mr. Knight made an additional purchase on February 7, 2012 at the Days Inn in New Stanton, Pennsylvania. There, Mr. McKiver sold Mr. Knight twenty-five stamp bags of heroin in exchange for $200. On February 9, 2012, Trooper Norton purchased heroin from Sosa at a Knights Inn in Greensburg after telephoning the 724-217-xxxx number. Trooper Norton bought fifty stamp bags of heroin for $400.

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As part of the February 9, 2012 transaction, Detective Vernail effectuated a traffic stop of a car after its occupants had been observed buying drugs at the Knights Inn. At police direction, one occupant called the 724-217-xxxx number to arrange for another purchase. Ms. Dudek sold the individual eleven stamp bags.

Trooper Norton and Mr. Knight again purchased heroin from Mr. McKiver on February 21, 2012, buying twenty-three stamp bags of heroin. That same date Appellant contacted Mr. Bray to inquire if he wanted Appellant's “dope” phone with the 724-217-xxxx number and nine bricks of heroin. Mr. Bray, Ms. Dudek and Kristin Weightman met with Appellant to discuss drug business. Appellant gave Ms. Weightman the nine bricks of heroin, suboxone, and a cell phone. Mr. Bray stashed six of the bricks of heroin and much of the suboxone at Ms. Dudek's home. Ms. Dudek, Ms. Weightman, and Mr. Bray then traveled to Ms. Davis' Hawksworth Garden apartment. Mr. Haynes arrived later that evening and he and Ms. Weightman stayed the night. Ms. Weightman was selling heroin from the apartment that night.

The next day, February 22, 2012, police observed Ms. Weightman conduct several hand-to-hand drug transactions outside the Hawksworth Garden apartments. Police pulled over one customer, who admitted to purchasing heroin from Ms. Weightman. Police witnessed Ms. Weightman return to apartment B23, Ms. Davis' apartment, after the drug deals. After observing a sale, police began to approach Ms. Weightman and another individual, Kurt McCamley. Mr. McCamley had been instructed by Mr. Bray to retrieve nine bricks of heroin from Mr. McCamley's home and bring it to the apartment.

Police did not intercept Ms. Weightman before she entered the apartment. Upon approaching the door, police detected a powerful marijuana smell emanating from the apartment. After knocking and asking to speak to the renter, police heard some movement inside. They then repeatedly identified themselves as police. No. one answered and the troopers forcibly entered. Upon entering, Mr. Bray, who was inside, attempted to flee and was captured. Police saw, in plain view, the nine bricks of heroin and a large amount of money. Also present in the apartment were Mr. Haynes, Mr. McKiver, and Daniel Bizzelle. FN1. A cellphone with the 724-217-xxxx number was among the phones located in the apartment. Appellant was not present.

FN1 Mr. Bizzelle is the younger brother of Chauncy Bray. He was also referred to at one point as Dante Bizzelle.

As part of the investigation, police that same day executed a search warrant for Ms. Dudek's home. That search uncovered six bricks of heroin, suboxone, cash, and cell phones. Police contacted Ms. Dudek, told her of their

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discovery, and attempted to arrange for her to turn herself in. Ms. Dudek lied to police regarding her location and contacted Appellant. Appellant then arranged for another woman to pick up Ms. Dudek. Ms. Dudek stayed with Appellant for five days and Mr. Haynes one night. Both men knew she was wanted by police. After Mr. Haynes expressed concern about her being at his residence, Ms. Dudek turned herself in to police. She provided information to Detective Vernail that Ms. Morcheid was in possession of additional bricks of heroin. Police arrested Ms. Morcheid on March 2, 2012, in possession of eight bricks of heroin.

On March 13, 2012, Appellant asked one of his buyers, heroin addict Laura Beth Stinson, to pick up and house two individuals: Earl Alford and Khalil Thomas. The two possessed heroin and cash. Ms. Stinson transported the individuals to her home in exchange for heroin. Trooper Norton and Mr. Knight made a purchase of thirty-six stamp bags of heroin from that location that day. Another trooper stopped Ms. Sinton after she left her residence. Ms. Stinson agreed to allow police to search her home. Police found Mr. Alford and Mr. Thomas inside. Mr. Alford was seated on a toilet in the bathroom, the tank of which concealed heroin. Mr. Thomas was in a bedroom where heroin was found behind a dresser. In April, police were able to locate Appellant. At the time of his arrest, he had in his possession another cellphone with the identical 724-217-xxxx number. FN2.

FN2 A Commonwealth forensics expert testified that an individual can have two phones with the same number by asking for the telephone subscriber to reissue a SIM card with that number.

The Commonwealth charged Appellant with twenty criminal counts. The charges included two counts of corrupt organizations, criminal conspiracy, twelve counts of delivery of a controlled substance, four counts of possession with intent to deliver a controlled substance, FN3 and hindering apprehension. The jury convicted Appellant of sixteen counts, finding him not guilty of two delivery counts and two PWID charges. The trial court imposed sentence on October 4, 2013. The court sentenced Appellant to consecutive two and one-half-to-five-year terms of incarceration on the corrupt organization crimes. In addition, it imposed five consecutive two-to-four-year periods of incarceration for delivery and PWID crimes. Lastly, the court sentenced Appellant, pursuant to a mandatory minimum based on the weight of the drugs, to five to ten years incarceration. The court imposed the remaining sentences concurrently. As mentioned, Appellant's aggregate sentence was twenty to forty years imprisonment.

FN3 We are aware that both delivery and possession with intent to deliver are governed by the same statute.

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(ECF No. 15-77, pp.7-15.)

Petitioner filed post-sentence motions, which were denied by the trial court on February 5, 2014. (ECF No. 15-69, pp.4-8, 15-33; ECF No. 15-73, pp.1-13.) The Superior Court affirmed the verdict of the jury on January 9, 2015, but it remanded the case for resentencing as per United States v. Alleyne , 570 U.S. 99 (2013). (ECF No. 15-71, pp.6-9; ECF No. 15-77, pp.734.) Petitioner filed a petition for allowance of appeal with the Pennsylvania Supreme Court on February 4, 2015, which was denied on July 29, 2015. (ECF No. 15-71, pp.10-12; ECF No. 15-75, pp.21-46; ECF No. 15-77, pp.1-6; ECF No. 15-79, p.19.) On September 28, 2015, Petitioner was resentenced under the dictates of United States v. Alleyne , 570 U.S. 99 (2013), to an aggregate term of 15 to 30 years of incarceration. Petitioner did not file a direct appeal of the latter sentence.

Petitioner filed a timely petition pursuant to Pennsylvania's Post-Conviction Relief Act (“PCRA”) on September 21, 2016 and an Amended PCRA petition on February 23, 2017. (ECF No. 15-79, pp.24-43.) The PCRA court appointed counsel, who subsequently filed a Motion to Withdraw as counsel and a Turner / Finley “no-merit” letter. (ECF No. 15-79, pp.4449; ECF No. 15-81, pp.1-7.) After determining that the PCRA petition was without merit, the PCRA court then issued a Notice of Intent to Dismiss. (ECF No. 15-81, pp.15-29.) The PCRA court denied the PCRA petition by order dated March 7, 2018. (ECF No. 15-81, pp.31-32.)

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Petitioner appealed and the Superior Court affirmed the denial of PCRA relief on June 20, 2019. (ECF No. 15-79, pp.20-23; ECF No. 15-85, pp.40-48.) Petitioner did not petition for allowance of appeal to the Pennsylvania Supreme Court.

Petitioner filed his Petition in this case on August 19, 2019. Respondent filed an Answer to the Petition on April 7, 2020. (ECF No. 15.) Petitioner filed a Reply thereto on September 3, 2020. (ECF No. 23.)

B. Standard of Review

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal law, ” as the term is used in section 2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision.” Williams v. Taylor , 529 U.S. 362, 365 (2000).

The Supreme Court has identified two scenarios where a state court decision will fall into section 2254(d)(1)'s “contrary to” clause. First, a state court decision will be “contrary to” clearly established federal law when the court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams , 529 U.S. at 405. It set forth the following example where a state court decision would be “contrary to” Strickland v. Washington , 466 U.S. 668 (1984),

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the familiar clearly established federal law governing ineffective assistance of counsel claims.

If a state court were to reject a prisoner's claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be ‘diametrically different,' ‘opposite in character or nature,' and ‘mutually opposed' to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a ‘reasonable probability that . . . the result of the proceeding would have been different.'

Williams , 529 U.S. at 405-06 (internal citations omitted). The Supreme Court said that a state court decision will also be “contrary to” clearly established federal law if it “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id . at 406.

The Supreme Court has said that under the “unreasonable application” clause of 28 U.S.C. § 2254(d)(1), a state court decision involves an unreasonable application of Supreme Court precedent “if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Williams , 529 U.S. at 407. Under this standard, “a federal habeas court may not grant relief simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id . at 411. The Supreme Court later expanded on this interpretation of the “unreasonable application” clause explaining that the state court's decision must be “objectively unreasonable, ” not merely wrong; even “clear error” will not suffice. Locklyer v. Andrade , 538 U.S. 63, 75 (2003). “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood

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and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter , 562 U.S. 86, 103 (2011).

If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent Graterford SCI , 677 Fed.Appx. 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman , 551 U.S. 30, 953 (2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[, ] [a] federal court must then resolve the claim without the deference AEDPA otherwise requires.”). Indeed, the Third Circuit recently explained that,

[w]hile a determination that a state court's analysis is contrary to or an unreasonable application of clearly established federal law is necessary to grant habeas relief, it is not alone sufficient. That is because, despite applying an improper analysis, the state court still may have reached the correct result, and a federal court can only grant the Great Writ if it is “firmly convinced that a federal constitutional right has been violated, ” Williams , 529 U.S. at 389, 120 S.Ct. 1495. See also Horn v. Banks , 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (“[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review . . . none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard”). Thus, when a federal court reviewing a habeas petition concludes that the state court analyzed the petitioner's claim in a manner that contravenes clearly established federal law, it then must proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred. See Lafler v. Cooper , 566 U.S. 156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).

Vickers v. Superintendent Graterford SCI , 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote omitted).

The AEDPA further provides for relief if an adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under § 2254(d)(2), a state court decision is

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based on an “unreasonable determination of the facts” if the state court's factual findings are “objectively unreasonable in light of the evidence presented in the state-court proceeding, ” which requires review of whether there was sufficient evidence to support the state court's factual findings. See Miller-El v. Cockrell , 537 U.S. 322, 340 (2003). Within this overarching standard, a petitioner may attack specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play, instructing that the state court's determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell , 387 F.3d 210, 235 (3d Cir. 2004). Importantly, the evidence against which a federal court measures the reasonableness of the state court's factual findings under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster , 563 U.S. 170, 181 (2011).

C. Discussion

Petitioner raises four claims in his Petition, all premised on his trial counsel's alleged ineffective assistance. Specifically, he claims his trial counsel was ineffective for: (1) failing to object to voir dire proceedings being held in a room inaccessible to the public, (2) failing to object to the composition of the prospective jury panel, (3) failing to object and/or request a curative instruction when witness Desiree Wilson testified about Petitioner's prior bad acts, and (4) failing to investigate and request a continuance to prepare a defense and effectively cross-examine witnesses.

With respect to claims alleging ineffective assistance of counsel, Strickland v. Washington , 466 U.S. 668 (1984) recognized that a defendant's Sixth Amendment right to the assistance of counsel for his defense entails the right to be represented by an attorney who meets

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a minimal standard of competence. Id . at 685-87. “[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance[.]” Burt v. Titlow , 571 U.S. 12, 24 (2013). Under Strickland , it is a petitioner's burden to establish that his “counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 688. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed by the Sixth Amendment.” Id . at 687. The Supreme Court has emphasized that “counsel should be ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]'” Titlow , 571 U.S. at 22 (quoting Strickland , 466 U.S. at 690); Richter , 562 U.S. at 104 (“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.”) (quoting Strickland , 466 U.S. at 689).

Strickland also requires that a petitioner demonstrate that he was prejudiced by his trial counsel's deficient performance. This places the burden on him to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694.

Petitioner raised claims one through three in his PCRA petition and on appeal therefrom, and each of the three claims were denied on the merits. Because the state courts denied Petitioner's first three claims on the merits, this Court's review of them is very limited. It is not for this Court to decide whether the Superior Court's decision was right or wrong. Rather, under AEDPA's standard of review, as codified in relevant part at 28 U.S.C. § 2254(d)(1), it is

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Petitioner's burden to show that the Superior Court's adjudication was “contrary to, or involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States, ” or as codified in relevant part at 28 U.S.C. § 2254(d)(2), was an “unreasonable determination of the facts in light of the evidence presented.” Here, the “clearly established Federal law” is that which is set forth in Strickland . See Williams v. Taylor , 529 U.S. 362, 391 (2000).

1. Failing to object to voir dire proceedings

In Petitioner's first claim, he argues that his counsel was ineffective for failing to object to voir dire proceedings being held in a room inaccessible to the public. In support of this claim, Petitioner argued to the PCRA court that while voir dire was originally scheduled to take place in an open courtroom it ultimately had to be moved because no courtrooms were available due to a scheduling conflict. He claimed that the room utilized was approximately 15 feet by 20 feet and contained only a conference table large enough for approximately 8 to 10 people to be comfortably seated. No. room or space was designated nor available for public spectators, media or Petitioner's family and friends. Finding that Petitioner was not entitled to relief on this claim of ineffective assistance of counsel, the PCRA court analyzed this claim as follows:

[Petitioner] further avers that although he lodged his objections to Attorney Michael DeMatt, DeMatt informed him that “the public, whether family, friends, or media were not permitted to be present during jury selection and voir dire whether held in a large space or not.” As a result, [Petitioner] states that his failure to object “resulted in [Petitioner's] right to a public voir dire and jury selection being eviscerated for no reason other than a lack of available open courtrooms.” He also declares that two family members, Aleah Banks and Nichelle Moore, arrived at the courthouse and were told that they could not observe the voir dire proceedings because they were not occurring in open court.

First, as [Petitioner] states that his right to a public trial was violated by Attorney DeMatt's ineffectiveness, it must be determined whether his assertion has arguable merit. In determining whether a procedure violated [Petitioner]'s

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right to a public trial, a court must keep in mind that such right serves two general purposes: (1) to prevent an accused from being subject to a star chamber proceeding; and (2) to assure the public that standards of fairness are being observed. Comm. v. Berrigan , 501 A.2d 226 (Pa. 1985). Moreover, confidence in our system of jurisprudence is enhanced by the openness of judicial proceedings. Id . at 232. Although the right to a public trial is applicable to voir dire proceedings, a trial judge may, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial. Comm. v. Harris , 703 A.2d 441, 445 (Pa. 1997).

Assuming, arguendo , that Attorney DeMatt informed [Petitioner] that no family or friends could be present during voir dire, and court staff informed [Petitioner]'s family members that they could not observe the jury selection process for the sole reason that they did not occur in open court, there is arguable merit to [Petitioner]'s claim. Certainly, as discussed, supra , the right to a public trial is applicable to voir dire proceedings. Attorney DeMatt's alleged statements to [Petitioner], if true, would be factually inaccurate.

Although there is arguable merit to [Petitioner]'s claim, the claim still fails the second prong of the ineffectiveness test. Notwithstanding Attorney DeMatt's alleged statements to [Petitioner], there was certainly a reasonable basis for Attorney DeMatt not to lodge an objection with Judge Millen regarding the small space reserved for conducting individual voir dire. The Court notes that it is standard practice in Westmoreland County to conduct individual voir dire in such a space as is described by [Petitioner]. Moreover, Judge Millen noted in open court that he was conducting individual voir dire in a conference room because there were no courtrooms available. [Petitioner]'s family members may have been told that they were not permitted to observe voir dire because there was not adequate space for their presence.

[Petitioner] also fails the third prong of the ineffectiveness test, as he cannot successfully aver that he suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error. The Superior Court has held that “a finding that [a defendant] is entitled to a new trial cannot be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized, resulting in prejudice . . . .” Comm. v. Garvin , 485 A.2d 36, 39 (Pa. Super. 1984).

Other than [Petitioner]'s separate contention that the jury selected caused him prejudice by being completely composed of Caucasians, [Petitioner] does not state how his proceeding would have ended differently had two of his family members been permitted to observe voir dire, or had it been open to the general public. Even had Attorney DeMatt asked Judge Millen to relocate the proceedings to an open courtroom, a judge is permitted to impose reasonable

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limitations on access to a trial; here, he stated in open court that there were not any open courtrooms available at the time. As noted, supra , individual voir dire in Westmoreland County is usually conducted in a room described by [Petitioner]. [Petitioner]'s family certainly could have requested a transcript of the individual voir dire proceedings. [Petitioner] even notes in his petition that he is “not alleging that the Court ordered voir dire a ‘closed proceeding.' However, the lack of space and seating for the public in the room the Court ordered the proceeding to be held in rendered the proceeding closed to the public.” Although it is unfortunate that [Petitioner]'s family were not able to observe individual voir dire as they desired, [Petitioner]'s argument fails two prongs of the ineffectiveness test, and does not represent grounds for a new trial.

(ECF No. 15-81, pp.21-24.) Citing and relying on the PCRA court's analysis the Superior Court affirmed the denial of this claim on appeal. See (ECF No. 15-85, pp.43-44.)

In Presley v. Georgia , 558 U.S. 209 (2010), the Supreme Court made clear that the public-trial right extends to jury selection as well as to other portions of the trial. Id . at 213-15. As such, a criminal defendant's Sixth Amendment right to a public trial is violated when the trial court excludes the public from the voir dire of prospective jurors, without considering reasonable alternatives to closure. Id . at 216. To justify the closure of a courtroom, “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Waller v. Georgia , 467 U.S. 39, 48 (1984). The denial of the right to a public trial is a structural error, see Arizona v. Fulminante , 499 U.S. 279, 310 (1991) (citing Waller , 467 U.S. at 49 n.9), “a limited class of fundamental constitutional errors that . . . are so intrinsically harmful as to require automatic reversal (i.e., ‘affect substantial rights') without regard to their effect on the outcome.” Neder v. United States , 527 U.S. 1, 7 (1999). However, the right to a public trial is subject to exceptions. For example, “a judge may deprive a defendant his right to an open courtroom by making proper factual findings in support of the decision to [close the

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courtroom].” Weaver v. Massachusetts , 137 S.Ct. 1899, 1909 (2017) (citing Waller , 467 U.S. at 45).

Whether a defendant is entitled to an automatic reversal due to the closure of the courtroom depends on when the challenge to the closure of the courtroom was initially raised. “[I]n the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to ‘automatic reversal' regardless of the error's actual ‘effect on the outcome.'” Weaver v. Massachusetts , 137 S.Ct. at 1910 (quoting Neder , 527 U.S. at 7). When, however, the defendant does not preserve a public-trial violation on direct review but raises it later in the context of an ineffective-assistance-of-counsel claim, as is the case here, the defendant must meet the traditional Strickland ineffective assistance standard. In other words, Strickland prejudice is not shown automatically and “the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the [United States Supreme] Court . . . assumed for [ Weaver ], . . . to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair.” Id . at 1910-11.

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As an initial matter, in reviewing the state court decisions in this case, it is important to note that both the PCRA court and the Superior Court identified the correct legal standard for evaluating ineffective assistance of counsel claims and proceeded to apply it when they reviewed Petitioner's claim on the merits. While the state courts applied the Pennsylvania test for ineffective assistance of counsel, which is divided into three prongs instead of Strickland 's two prongs, the Third Circuit Court of Appeals has made it clear that this test does not contradict Strickland . See Werts v. Vaughn , 228 F.3d 178, 202-04 (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.”). Thus, the undersigned finds that the Superior Court's ruling does not contradict the Supreme Court's law governing ineffective assistance of counsel claims. Accordingly, the Superior Court's decision is not “contrary to” clearly-established Federal law, and the inquiry now becomes whether its decision was an objectively “unreasonable application” of that law.

Under the “unreasonable application” provision of § 2254(d)(1), the appropriate inquiry is whether the state courts' application of Strickland to a petitioner's ineffectiveness claim was

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objectively unreasonable, i.e. , the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under Strickland . To satisfy his burden under § 2254(d)(1), a petitioner must do more than convince this Court that the Superior Court's decision denying a claim was incorrect. Dennis v. Secretary, Pennsylvania Department of Corrections , 834 F.3d 263, 281 (3d Cir. 2016). He must show that it “‘was objectively unreasonable.'” Id . (quoting Williams , 529 U.S. at 409). This requires that he establish that the state court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter , 562 U.S. at 103. In addressing Strickland 's ineffective assistance standard and its relationship to AEDPA, the Supreme Court explained,

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” id. , at 689; Lindh v. Murphy , 521 U.S. 320, 333 n.7 (1997), and when the two apply in tandem, review is ‘doubly' so, Knowles , 556 U.S., at 123. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland 's deferential standard.

Harrington , 562 U.S. at 105. See also Grant v. Lockett , 709 F.3d 224, 232 (3d Cir. 2013) (“A state court must be granted a deference and latitude that are not in operation when the case involves [direct] review under the Strickland standard itself. Federal habeas review of ineffective assistance of counsel claims is thus doubly deferential.”) (internal citations and quotations omitted).

Under the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard, there is no basis for this Court to conclude that the Superior

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Court's adjudication of Petitioner's first ineffective assistance of counsel claim was an “unreasonable application of” Strickland . Relying on the PCRA court's reasoning, the Superior Court reasonably concluded that Petitioner had not demonstrated that his counsel's performance was deficient or that the outcome of his trial would have been different had his trial counsel objected to the space where individual voir dire was conducted. Petitioner has not established that the Superior Court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington , 562 U.S. at 103. Furthermore, even under the theory of prejudice that was discussed in dicta in Weaver , see FN 7, Petitioner has not shown that his attorney's failure to object rendered his trial fundamentally unfair. Indeed, the facts of Weaver are so similar to this case that Petitioner has not shown prejudice for essentially the same reasons. To the extent there was any “closure” of the trial proceedings in this case at all, said closure was limited to individual voir dire and not the evidentiary phase of the trial. The voir dire proceedings were transcribed and could have been requested by any individual who was unable to observe them. And, Petitioner has not alleged, much less shown, that there was any harm that flowed from the closure of the individual voir dire proceedings. Accordingly, the undersigned finds that Petitioner is not entitled to habeas relief under § 2254(d)(1).

Finally, pursuant to 28 U.S.C. § 2254(d)(2), a petitioner must demonstrate that the state court's adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” This provision applies when a petitioner “challenges the factual basis for” the state court's “decision rejecting a claim[.]” Burt v. Titlow , 571 U.S. 12, 18 (2013). The undersigned notes, however,

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that the standard of review set forth at § 2254(d)(2) is not applicable to this claim because the state court's decision was not premised upon a finding of fact made by it.

2. Failing to object to composition of prospective jury panel

In Petitioner's second claim, he argues that his counsel was ineffective for failing to object to the composition of the prospective jury panel because it was not representative of a fair cross-section of the community. In support of this claim, Petitioner, who is African American, argued to the PCRA court that the jury panel was composed only of Caucasians but that as of 2013 African Americans comprised 2.3% of the Westmoreland County population. He thus claimed that his trial counsel should have objected to the panel on the basis that it was not a fair representation of the community. The PCRA court noted that Westmoreland County draws its jury pool from a list it receives each year from Harrisburg and that those names are drawn from multiple sources, including voter registration, driver's licenses, tax records and welfare records. (ECF No. 15-81, p.20.) In finding Petitioner's underlying claim challenging his right to a fair trial based on the composition of the jury panel “wholly without merit” the PCRA court noted that Petitioner failed to specify how Westmoreland County's selection process was not fair and reasonable in relation to the number of African Americans in the community and also failed to argue that the county systematically excludes African Americans from the jury selection process. Id . It further stated that, “[i]f anything, his contention that African-Americans compose only 2.3% of the population of Westmoreland County only supports the position the jury pool was representative of the community at large.” Id . It thus concluded that Petitioner's related claim of

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ineffective assistance of counsel for failing to object to the inequality was also without arguable merit. Id . On appeal, the Superior Court affirmed the denial of this claim based on the PCRA court's analysis. See (ECF No. 15-85, pp.44-45.)

The Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury, and an essential characteristic of an impartial jury is that members are randomly selected from a “representative cross-section of the community.” See Lockhart v. McCree , 476 U.S. 162, 173-74 (1986). However, the Supreme Court has never required that a criminal defendant be tried by a jury that actually reflects the composition of the community at large. Id .; see also Taylor v. Louisiana , 419 U.S. 522, 538 (1975) (The fair cross-section requirement does not mean “that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.”) Instead, “‘[t]he point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn[.]'” Id . at 174 (quoting Pope v. United States , 372 F.2d 710, 725 (8th Cir. 1967)). In other words, “the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Taylor , 419 U.S. at 538.

The Supreme Court has said that to establish a prima facie violation of the Sixth Amendment's fair cross-section requirement, a defendant has the burden of proving: “(1) that the group alleged to be excluded is a ‘distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systemic exclusion of the group in the jury selection process.” Duren v. Missouri , 439 U.S. 357, 364 (1979).

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The Sixth Amendment does not guarantee that a specific number of minorities sit on a jury panel, only that the jury wheels, pools of names, panels, or venires from which juries are drawn not systematically exclude distinctive groups in the community. The sources from which potential jurors are drawn in Westmoreland County have all been approved for purposes of jury selection and state courts in Pennsylvania have consistently rejected attacks on the basis that African Americans were underrepresented in the racial composition of jury panels drawn from those sources, or that jury pools chosen from those sources did not represent a fair cross-section of the community. See e.g. , Commonwealth v. Bridges , 757 A.2d 859, 868 (Pa. 2000) (“As this Court has stated, “a criminal defendant may not attack the racial composition of jury panels drawn from voter registration lists on the theory that blacks are underrepresented in voter lists” because such computer generated lists are compiled without regard to race.) (quoting Commonwealth v. Henry , 569 A.2d 929, 933 (Pa. 1990)); see also Commonwealth v. Johnson , 815 A.2d 563, 575 (Pa. 2002) (“Absent some showing that driver's license selection procedures are inherently biased, [the defendant] has failed to distinguish jury pool lists derived from voter registration records from those derived from driver's license registration lists.”). Petitioner failed to offer any evidence or advance any argument before the state courts demonstrating the systematic exclusion of African Americans from the jury panel in his case, and, as such, the state courts rejected Petitioner's argument that his attorney was ineffective in failing to object to the racial composition of the jury panel as being an unfair cross-section of the community. In reaching its decision, the state courts identified and applied the correct standard governing ineffective assistance of counsel claims, and therefore its decision was not contrary to Strickland . See , supra , “contrary to” analysis in claim 1. It was also not an unreasonable determination of Strickland given that attorneys cannot be deemed ineffective for failing to raise a meritless

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objection. Accordingly, Petitioner is not entitled to habeas relief on this claim under § 2254(d)(1). The standard of review set forth at § 2254(d)(2) is not applicable to this claim because the state court's decision was not premised upon a finding of fact made by it.

3. Failing to object and request curative instruction

In claim three, Petitioner argues that counsel was ineffective for failing to object and request a curative instruction when witness Desiree Wilson testified about Petitioner's prior bad acts; specifically, that she heard Petitioner slap Kristen Weightman, presumably over Weightman's inability to manage the money aspect of the heroin dealing and her usage of the product. With respect to this claim, the PCRA court found as follows:

… [Petitioner] avers that Attorney DeMatt was ineffective because he failed to object and/or request a curative instruction when witness Desiree Wilson testified that Kristen Weightman mismanaged [Petitioner]'s money and was smacked by [Petitioner]. [Petitioner] avers that the evidence was used as “character assassination, which is what Rule 404(b) is designed to prevent.” This issue was raised [on direct appeal] with the Superior Court, who determined that [Petitioner] failed to object: specifically, “[Petitioner] earlier objected to Ms. Wilson's testimony regarding Ms. Weightman accepting $250 in counterfeit money for heroin, but did not object to her testimony that [Petitioner] smacked Ms. Weightman. Thus, the issue is not preserved. Pa.R.A.P. 302(a).” No. 338 WDA 2014.

Desiree Wilson testified at trial that Kristen Weightman was her best friend, and that she knew her to be romantically involved with [Petitioner]. (TT 460). She stated that Weightman sold heroin for [Petitioner], and would sometimes do so at Wilson's residence. (TT 478). The relevant testimony is as follows:

Wilson: [Weightman] messed up [Petitioner's] money a lot. One time I was at work, and she got, like $250 in fake fifties.

ADA: Fake fifty dollar bills?

Wilson: Uh-huh.

ADA: In exchange for heroin?

Attorney DeMatt: I would object to this as hearsay. She said she was at work. She's - I said I object to hearsay because she said she was at work.

So she's obviously getting this information from another source.

[Judge reserves ruling]

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. . .

Wilson: Yes. And she brought the money to my work, and I seen the fake

- the fake money, and I told [Weightman], I said . . . how did you not know this was fake? I mean, anybody could really know that it was fake.

And she was like, well, it was dark. So and then [Petitioner] had come

[sic] to my house that morning, and there was a problem upstairs in my bedroom, well, my son's bedroom, and he came down the steps and left.

ADA: What do you mean by a problem?

Wilson: Um, there - I heard him smack [Weightman].

The Court: Well, I better rule on the objection. The objection is overruled. You may go ahead.

(TT 479-80).

After this testimony, Assistant District Attorney James Lazar clarified:

ADA: You heard - you weren't there to see it, correct?

Wilson: No.

ADA: You just heard someone getting smacked?

Wilson: Uh-huh.

(TT 480).

The above testimony was primarily introduced to establish that Weightman and [Petitioner] worked together to sell heroin. Pa.R.E. 404(b) states that “evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Had [Petitioner] been charged with physically abusing Weightman, the above testimony may have been excluded as per Pa.R.E. 404(b), as it tended to show that [Petitioner] abused Weightman on a certain occasion, and would have fallen within the gambit of 404(b). Here, the Assistant District Attorney elicited that Wilson did not see [Petitioner] hit Weightman, but only heard “someone getting smacked.” Weightman's testimony was introduced for the purpose of establishing a conspiracy between Weightman and [Petitioner] to sell drugs. Thus, there is no merit to the claim that Attorney DeMatt should have objected to the testimony as per Pa.R.E. 404(b).

Also, as noted by Attorney Kober in his no-merit letter, said testimony was a minute part of the Commonwealth's case, and the exclusion of this evidence would not have resulted in a verdict of not guilty on any of the charges. Thus, there is no merit to [Petitioner]'s claim, Attorney DeMatt acted reasonably, and even had the evidence been excluded, there is not a likelihood that the outcome of the trial would have been different. [Petitioner] is not entitled to a new trial based on this contention.

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(ECF No. 15-81, pp.25-27.) The Superior Court affirmed the denial of this claim on appeal agreeing with the PCRA court that the claim lacked arguable merit and that Petitioner did not demonstrate that he suffered prejudice as a result of the challenged testimony's admission. (ECF No. 15-85, pp.46-47.)

The state courts adjudication of this claim was neither contrary to nor an unreasonable application of Strickland . The state courts identified and applied the correct standard governing ineffective assistance claims, and given the purpose for which Wilson's testimony was admitted, and the fact that the exclusion of such evidence would not likely have resulted in a different outcome, it was reasonable for the state courts to conclude that Petitioner's attorney was not ineffective for failing to object to its admission. Accordingly, Petitioner is not entitled to habeas relief under § 2254(d)(1). And, the standard of review set forth at § 2254(d)(2) is not applicable to this claim because the state court's decision was not premised upon a finding of fact made by it.

4. Failing to investigate and request a continuance

In his last claim, Petitioner argues that trial counsel was ineffective for failing to investigate two potential witnesses' involvement in the alleged conspiracy and call them as witnesses for the defense. Specifically, Petitioner argued to the PCRA court that neither Chauncy Bray nor Kristen Weightman were involved in a conspiracy with Petitioner to sell drugs but instead sold drugs for themselves and that they would have testified as such had they been called as defense witnesses. He also claimed that trial counsel was not prepared to try a multi-

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defendant case and should have requested a continuance in order to have more time to investigate and prepare.

While Petitioner raised this claim in his pro se PCRA petition, and while it was addressed by his appointed PCRA counsel in his no merit letter, the PCRA court appears to have inadvertently overlooked the claim and it was not reviewed by that court. Petitioner again raised the claim on appeal, but the Superior Court deemed the claim waived due to lack of development for Petitioner's failure to discuss and apply each of the three ineffective assistance prongs to his claim. See ECF No. 15-85, pp.47-48 (citing Commonwealth v. Fears , 86 A.3d 795, 804 (Pa. 2014)).

Respondent argues that this claim is procedurally defaulted due to the Superior Court's finding that it was waived. Relevant here, the “adequate and independent state ground doctrine applies on federal habeas[, ]” Harris v. Reed , 489 U.S. 255, 262 (1989) (citing Wainwright v. Sykes , 433 U.S. 72, 81, 87 (1977)), insofar as federal review is barred if claims are “defaulted . . . in state court pursuant to an independent and adequate state procedural rule.” Coleman v. Thompson , 501 U.S. 722, 750 (1991). In other words, “[t]he procedural default doctrine prohibits federal courts from reviewing a state court decision involving a federal question if the state court decision is based on a rule of state law that is independent of the federal question and adequate to support the judgment.” Nara v. Frank , 488 F.3d 187, 199 (3d Cir. 2007). The requirements of “independence” and “adequacy” are distinct. Johnson v. Pinchak , 392 F.3d 551, 557-59 (3d Cir. 2004). State procedural grounds are not independent, and will not bar federal habeas relief, if the state law ground rested primarily on federal law or is so “interwoven with federal law” that it cannot be said to be independent of the merits of petitioner's federal claims. Coleman , 501 U.S. at 739-40. A state rule is “adequate” if it is “firmly established and regularly

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followed.” Johnson v. Lee , 136 S.Ct. 1802, 1804 (2016) (citation omitted). These requirements ensure that “federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule, ” and that “review is foreclosed by what may honestly be called ‘rules' . . . of general applicability[, ] rather than by whim or prejudice against a claim or claimant.” Bronshtein v. Horn , 404 F.3d 700, 707, 708 (3d Cir. 2005).

The Third Circuit has found that reliance on a petitioner's failure to develop arguments meaningfully on appeal and cite appropriate authorities is an independent and adequate state law ground that precludes federal habeas relief. See Leake v. Dillman , 594 Fed.Appx. 756, 758-59 (3d Cir. 2014). Notwithstanding that an independent and adequate finding of procedural default will bar federal habeas review of a federal claim, a petitioner can avoid the bar by showing “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman , 501 U.S. at 750. Petitioner has not asserted, much less demonstrated, any cause or prejudice, nor has he argued that he will suffer any fundamental miscarriage of justice as a result of the Court's failure to review this claim. The undersigned therefore concludes that this claim is procedurally defaulted and precluded from review. See , e.g. , White v. Ferguson , No. 2:17-CV-1679, 2021 WL 76154, at *6-7 (M.D. Pa. Jan. 8, 2021) (finding procedurally defaulted petitioner's claim that was waived on appeal due to lack of development); Rodriguez v. Giroux , No. 15-6182, 2017 10821396 (E.D. Pa. Feb. 17, 2017), report and recommendation adopted by 2019 WL 587314 (E.D. Pa. Feb. 12, 2019) (same).

However, the undersigned finds that this claim is without merit even if it were reviewed de novo . Petitioner cannot show that that his counsel's performance was deficient in failing to call Bray as a defense witness or that he suffered any prejudice as a result of Bray not testifying

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as a defense witness. Bray testified as a Commonwealth witness and was effectively cross-examined by Petitioner's trial counsel. (ECF No. 15-43, pp.23-50; ECF No. 15-45, pp.1-31; ECF No. 15-49, pp.1-51; ECF No. 15-51, pp.1-5.) He testified at length about his relationship with Petitioner and the division of labor of drug trafficking between he and Petitioner. On cross-examination, Petitioner's trial counsel questioned Bray about his own drug-selling operations and specifically about Petitioner's lack of involvement in those operations. Petitioner appears to argue that Bray's testimony on direct by the Commonwealth was false but it is simply inconceivable to believe that Bray was suddenly going to change his prior testimony that he had just given under oath if also called to testify as a defense witness. Furthermore, while Petitioner makes much of the fact that had Bray testified as a defense witness, he would have testified that he sold drugs for himself, Bray actually testified to such fact at trial and that fact was never disputed. However, Bray also testified to working with Petitioner; specifically, to receiving at least 10 bricks of heroin on a front or on consignment and purchasing up to 30 bricks from Petitioner. Although Bray testified to never really trusting Petitioner and to ultimately branching out on his own, he also testified that the relationship never really stopped and they continued to sell heroin to each other throughout the early months of 2012. As Petitioner has not shown that his counsel acted unreasonably in failing to call Bray as a defense witness or that there is a reasonable probability that the outcome of his trial would have been different had counsel done so, he has therefore not demonstrated that his counsel was ineffective pursuant to Strickland . Petitioner also cannot show that he suffered Strickland prejudice from the absence of Weightman's testimony. While Weightman did not testify for either side, she was the subject of considerable testimony by other witnesses who described her involvement with Petitioner and his drug operation. Her name was also frequently mentioned by several Commonwealth witnesses

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who testified as to her involvement in the trafficking of drugs. As such, calling her as a defense witness would have been risky as it is doubtful that her testimony would have been exculpatory and she would have been subjected to cross-examination by the Commonwealth. Moreover, even if she had testified to selling drugs for herself, as Petitioner claims, there is still no reasonable probability that the outcome of Petitioner's trial would have been different given the overwhelming evidence of Petitioner's guilt that was presented at his trial. As such, Petitioner has not shown that his counsel was ineffective in failing to call her as a defense witness.

Finally, Petitioner conclusively states that his trial counsel should have requested a continuance to have more time to prepare for trial, but he fails to specify how he believes his trial would have been different had counsel done so. He has therefore not met the Strickland standard of showing that his counsel was ineffective.

D. Certificate of Appealability

A certificate of appealability may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing threshold is satisfied when a petitioner demonstrates “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). In this case, reasonable jurists would not find the denial of the Petition debatable. Accordingly, a certificate of appealability should be denied.

III. CONCLUSION

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For the aforementioned reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) filed by Petitioner James Stephen Moore be denied, and it is further recommended that a certificate of appealability also be denied.

In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Petitioner shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Petitioner's failure to file timely objections will constitute a waiver of his appellate rights.

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Notes:

See Commonwealth v. Moore , CP-65-CR-0001608-2012 (Westmoreland Cnty. Ct. Comm. Pleas). Petitioner's criminal docket sheet is a matter of public record and also available on the docket at ECF No. 15-3, pp.1-50, and ECF No. 15-5, pp.1-4.

On December 15, 2015, the trial court amended its resentencing order granting Petitioner credit for time served. (ECF No. 15-81, p.46.)

Petitioner's original PCRA petition was not submitted to the Court by Respondent. However, the record indicates that said petition was filed on September 21, 2016. See ECF No. 15-3, p.35.

See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).

This is the filing date pursuant to the prison mailbox rule. See Houston v. Lack , 487 U.S. 266 (1988).

Petitioner's fourth claim was deemed waived by the Superior Court.

A plurality of the Court in Weaver assumed, but did not decide, that attorney error is prejudicial under Strickland if it renders the trial process fundamentally unfair. However, in two separate concurring opinions, three Justices contended that the plurality's analysis of fundamental unfairness under the rubric of Strickland prejudice was dicta that lower courts could, and should, ignore. See Weaver , 137 S.Ct. at 1914 (Thomas, J., concurring) (“ Strickland did not hold, as the Court assumes, that a defendant may establish prejudice by showing that his counsel's errors ‘rendered the trial fundamentally unfair.'”); (Alito, J. concurring) (“Weaver makes much of the Strickland Court's statement that ‘the ultimate focus of inquiry must be on the fundamental fairness of the process.' But the very next sentence clarifies what the Court had in mind, namely, the reliability of the proceeding.”). Importantly, for purposes of § 2254(d)(1), “‘clearly established federal law' means ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'” Dennis v. Sec'y, Pennsylvania Dep't of Corr. , 834 F.3d 263, 280 (3d Cir. 2016) (quoting Lockyer v. Andrade , 538 U.S. 63, 71-72 (2003)). It “includes only ‘the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'” White v. Woodall , 572 U.S. 415, 419 (2014) (quoting Howes v. Fields , 565 U.S. 499, 505 (2012), which quoted Williams , 529 U.S. at 412). For the purpose of this Report and Recommendation, the undersigned finds that Weaver 's assumption that prejudice can be demonstrated by a showing of fundamental unfairness is dicta and thus not “clearly established federal law” as that phrase has been defined by the Supreme Court. Indeed, this is made clear in Weaver when the Court stated, “For the analytical purpose of this case, the Court will assume that petitioner's interpretation of Strickland is the correct one. In light of the Court's ultimate holding, however, the Court need not decide that question here .” Weaver , 137 S.Ct. at 1911 (emphasis added). Accordingly, in order to demonstrate prejudice in the context of an ineffective assistance of counsel claim, a petitioner must show that but for counsel's error, the result of the proceeding would have been different. Strickland , 466 U.S. at 694.

In Pennsylvania, a petitioner must satisfy a three-prong test in order to overcome the presumption that counsel was effective. The petitioner must demonstrate the following: “(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance.” Commonwealth v. Ligons , 971 A.2d 1125, 1137 (Pa. 2009) (citing Commonwealth v. Pierce , 786 A.2d 203, 213 (Pa. 2001)).

The United States Supreme Court has stated that “a run-of-the-mill state court decision applying the correct legal rule from our cases to the facts of a prisoner's case would not fit comfortably within § 2254(d)(1)'s ‘contrary to' clause. Assume, for example, that a state-court decision on a prisoner's ineffective-assistance claim correctly identifies Strickland as the controlling legal authority and, applying that framework, rejects the petitioner's claim. Quite clearly, the state court-decision would be in accord with our decision in Strickland as to the legal prerequisites for establishing an ineffective-assistance claim, even assuming the federal court considering the prisoner's habeas application might reach a different result applying the Strickland framework itself.” Williams , 529 U.S. at 406.

Respondent points out that the record is silent with respect to the racial composition of the jury panel. Respondent admits that there is no dispute that the panel was comprised primarily of Caucasian jurors and that there were no African Americans on the selected jury, but Respondent does not believe that the panel was comprised 100% of Caucasian individuals. See ECF No. 15, p.11, fn 5.

In his Reply, Petitioner contends that the state court's decision was an unreasonably application of Donnelly v. DeChristoforo , 416 U.S. 637 (1974). This is not correct as Donnelly did not set forth the standard governing claims for ineffective assistance of counsel, nor did it even involve a claim of ineffective assistance of counsel. Instead, that standard is found in Strickland .

A review of the index of the trial transcript, over three volumes, reveals that “Kristin” was mentioned approximately 250 times during the trial.

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