Barnett v. Mooney

• Decision Date: 16 September 2019
• Docket Number: CIVIL ACTION NO. 16-2973
• Parties: ROBERT BARNETT, SR. Petitioner, v. VINCENT MOONEY, ET AL. Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

ROBERT BARNETT, SR. Petitioner, v. VINCENT MOONEY, ET AL. Respondents.

CIVIL ACTION NO. 16-2973

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

September 16, 2019

MEMORANDUM

JONES, II J.

I. INTRODUCTION

Petitioner Robert Barnett, Sr. ("Barnett"), a prisoner serving a life sentence at the State Correctional Institution in Retreat, Pennsylvania, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to Local Rule 72.1.IV(c), the matter was referred to United States Magistrate Judge Henry S. Perkin for a Report and Recommendation ("R&R"). Judge Perkin ultimately recommended that the Petition be denied and no Certificate of Appealability be issued. In response, Barnett filed timely objections, to which the Commonwealth has responded. For the reasons stated below, this Court shall deny Petitioner's Habeas Petition without prejudice.

II. RELEVANT BACKGROUND

To the extent set forth below, the background provided in the R&R is not contested, therefore this Court shall rely on same. On September 8, 2001, Harry Renner ("victim") was working in the upstairs office of his restaurant in the Manayunk neighborhood of Philadelphia when he was robbed at gunpoint and fatally shot once in the head. (R&R 1.) At a jury trial proceeded over by the late Honorable David N. Savitt in the Philadelphia Court of Common Pleas in November 2002, the Commonwealth relied on four main pieces of evidence: (1) Barnett's confession to police where he admits to driving the getaway car with no specific intent to kill the victim; (2) Barnett's confession to an inmate, his girlfriend, and his friend Craig Walker; (3) Walker's testimony that Barnett attempted to recruit him for the robbery and witnessed an interaction with Barnett and Barnett's son, where the son told Barnett he did not have to shoot the victim; and, (4) Barnett's "sudden windfall" of money after the robbery. (R&R 15.)

Barnett was ultimately adjudged guilty of first-degree murder, robbery, burglary, conspiracy, and carrying a firearm without a license. (R&R 1.) On December 2, 2002, Barnett was sentenced to life imprisonment on the murder conviction, to be served concurrently with consecutive terms of five (5) to ten (10) years on the criminal conspiracy conviction, and three and one-half (3½) to seven (7) years on the firearms count. (R&R 1.)

Throughout his trial, Petitioner was represented by court-appointed counsel David Belmont, Esquire. Subsequent to trial, Belmont submitted Barnett's direct appeal to the Superior Court of Pennsylvania. On appeal, the Superior Court affirmed Barnett's conviction, but stated that even after receiving an extension, all three issues presented on appeal were subject to waiver "based upon Appellant's failure to draft a proper Statement of the Case and failure to properly develop his arguments." Commonwealth v. Barnett, 844 A.2d 1275, n.7 (Pa. Super. 2003) (unpublished memorandum), allocator denied 862 A.2d 1253 (Pa. 2004)). The Superior Court concluded with a suggestion that sanctions be imposed upon counsel for filing such a brief. Id. at n.7.

On October 5, 2009, Barnett's new attorney, Michael J. Malloy, Esquire, filed a timely petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541, asserting claims of ineffective assistance of counsel and seeking to have Petitioner's direct appeal rights reinstated, nunc pro tunc. Commonwealth v. Barnett, 121 A.3d 534, 538 (Pa. Super. 2015). The PCRA Court addressed the ineffectiveness claims on the merits and denied the PCRA Petition in its entirety. The Superior Court later reversed the PCRA Court's decision solely as to the denial of the reinstatement of Petitioner's direct appeal rights, but refrained from addressing the merits of the ineffective assistance of counsel claims. Id. at 538.

In his reinstated nunc pro tunc appeal, Barnett raised claims of ineffective assistance of trial/initial direct appeal counsel. Id.; see also Commonwealth v. Barnett, 25 A.3d 371, 373 (Pa. Super. 2011) (en banc), vacated, 84 A.3d 1060 (Pa. 2014). The Superior Court determined Barnett's ineffective assistance of counsel claims were improper on direct appeal and affirmed the judgment of his sentence. Barnett, 25 A.3d at 376-77. However, this Order was vacated by the Pennsylvania Supreme Court and the case was remanded back to the PCRA Court¹ based upon a recent decision in the matter of Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), which held that ineffective assistance of counsel claims must be deferred to PCRA review unless accompanied by a PCRA waiver.

On November 6, 2014, Barnett returned to the PCRA Court and after participating in a waiver colloquy, waived his PCRA rights in order to proceed with his reinstated nunc pro tunc direct appeal. (PCRA Hr'g Tr. 1:2-9, Nov. 6, 2014.) This waiver permitted the Superior Court to address the following claims on the merits:

1. Trial Counsel and Appellate Counsel rendered ineffective assistance of Counsel for failing to properly preserve and file for appeal issues raised at trial regarding a) evidence of Appellant's flight from an unrelated incident as evidence of Appellant's guilt in the instant case; b) introduction of evidence of money seized from the defendant in an unrelated incident as evidence of "sudden wealth" of the Defendant from the instant case; c) the introduction of testimony and evidence of Appellant's arrest for a crime unrelated to the criminal charge for which he was on trial;

2. Trial Counsel was ineffective for failing to request an instruction that the charges which gave rise to the evidence of the defendant's flight and monies [sic] found on the defendant were unrelated to the charge for which he was on trial were dismissed for lack of prosecution;

3. That trial Counsel was ineffective in failing to object to the Commonwealth's closing argument where the prosecution argued that it need not prove a specific intent to kill in order to be found Guilty of Murder in the First Degree and was ineffective in failing to object to the trial Court's instruction that Appellant could be found Guilty of Murder in the First Degree on the acts, circumstantial or direct of an accomplice, co-conspirator thereby instructing the jury that the Commonwealth did not need to prove a specific intent to kill by appellant to be found Guilty of Murder in the First Degree.

4. That trial counsel was ineffective for failure to object to the introduction to or preserve for appeal and file for appeal in the introduction the testimony of Craig Walker of the testimonial statement of Defendant's son/co-Defendant Robert Barnett, Jr. that "you didn't have to shoot him";

5. That trial counsel failed to properly preserve or file an appeal to the introduction of unrelated criminal actions and/or prejudicial testimony relating to the Appellant that related to an Office Max Robbery in Plymouth Meeting Mall and a composite sketch pursuant to the defendant and the defendant's son;

6. That trial Counsel failed to fully and properly advise Appellant regarding his right to testify at trial and therefore the Appellant's decision not to testify was not fully knowing, involuntary, or intelligent including but not limited to being ineffective for failing to investigate defendant's access to cash money on Appellant's behalf that would have rebutted the prosecution's theory of "sudden wealth."

Barnett, 121 A.3d at 539-40 (quoting Appellant's Br. 4).²

Following submission of Barnett's reinstated direct appeal, the Superior Court applied Pennsylvania's state law standard for adjudicating ineffective assistance of counsel claims and affirmed judgment of sentence. Id. at 551. On December 22, 2015, the Pennsylvania Supreme Court summarily denied Barnett's appeal. Commonwealth v. Barnett, 128 A.3d 1204 (Pa. 2015).

On June 14, 2016, Barnett timely filed the instant pro se Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Pet., ECF No. 1.) Additionally, Barnett filed a Supporting Memorandum of Law For Habeas Corpus Relief Pursuant to 28 U.S.C. §2254 on September 28, 2016, in which he restated the ineffective assistance of counsel claims included in his reinstated nunc pro tunc direct appeal. (Pet. Mem., ECF No. 16.) On April 13, 2017, the Commonwealth filed a Response to the Petition. (ECF No. 21.) Following this Response, Petitioner filed a Response to Respondent's Response to Petitioner's Memorandum of Law for Habeas Review on June 16, 2017, followed by an Amended Response to Respondent's Response on July 6, 2017. (ECF Nos. 23, 25.)

Included within Barnett's Habeas Petition are the following nine grounds for relief: the Commonwealth incorrectly asserted that Barnett never claimed he was innocent (Ground I); trial counsel was ineffective for failing to object to the prosecution's closing argument and the trial court's instruction regarding accomplice liability (Ground II); trial counsel was ineffective for not objecting to hearsay (Ground III); trial counsel was ineffective for not properly advising Barnett on his right to testify (Ground IV); trial counsel was ineffective for failing to object to and request cautionary instruction to the introduction of an unrelated case that had been withdrawn for lack of prosecution prior to this trial (Ground V); trial/initial direct appeals' counsel was ineffective for not filing Appellant's Direct Appeal Brief properly and for continuing to represent Barnett after Barnett filed a motion to remove him as counsel prior to the trial (Ground VI); the Commonwealth incorrectly asserted that Barnett signed a confession (Ground VII); the trial court judge "led" the medical examiner to change the time of death (Ground VIII); and, the Superior Court abused its discretion (Ground IX). (Hab. Pet., ECF No. 1-1 at 2-3.)

On January 28, 2019, United States Magistrate Judge Henry S. Perkin issued a Report and Recommendation, in which he recommended that the Petition be denied. (ECF No. 27...