Booker v. Capozza

• Decision Date: 13 August 2020
• Docket Number: Civil Action No. 2: 18-cv-0091
• Parties: FRANK DONTE BOOKER, Petitioner, v. SUPERINTENDENT MARK CAPOZZA, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and THE DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

FRANK DONTE BOOKER, Petitioner, v. SUPERINTENDENT MARK CAPOZZA, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,and THE DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.

Civil Action No. 2: 18-cv-0091

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

August 13, 2020

Chief United States Magistrate Judge Cynthia Reed Eddy

AMENDED MEMORANDUM OPINION¹

Petitioner, Frank Donte Booker ("Booker") initiated this action with the filing of a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). (ECF No. 1). In it, he alleges trial court error and ineffective assistance of counsel. For relief, Booker seeks a new trial. (Id. at 19). For the reasons that follow, the Petition will be denied, as will a certificate of appealability.

Background

This case arises from the fatal shooting of Clavonne Rollins by Petitioner, Frank Donte Booker, on May 11, 2012, which occurred inside a car in which Rollins was the driver, Tamira Scheuermann was the front seat passenger, Darrell Brown was seated behind Scheuermann, and Booker was seated behind Rollins, with Rollins and Scheuermann's child in a baby seat betweenthe two men in the back seat. The background of this case was aptly summarized by the Pennsylvania Superior Court in its opinion affirming Booker's judgment of sentence as follows:

On May 11, 2012, [Rollins] picked up his girlfriend, Tamira Scheuermann, at work and drove to the Get Go gas station located in Penn Hills where they were to meet some other people. Rollins was driving and Scheuermann was the front seat passenger and the one-year-old son that she had with Rollins was in a car seat in the middle of the back seat. At the Get Go station they met up with James Ingram whom they knew and Frank Booker, whom they had never met before. Ingram asked Rollins to give him a ride back to his house so that he could get his phone charger and he got into Rollins' vehicle. Since they did not know Booker, they left him at the Get Go gas station.

Rollins drove Ingram to his house and they agreed to meet a little while later so all of them could smoke some marijuana. Later that day they met up with Gerald Brown and they smoked the marijuana. Rollins decided to go back to the Get Go station and was travelling along Coal Hollow Road when they ran into Ingram who was leaving his girlfriend's house who asked them to give Booker a ride and he would pay for it. They met up with Booker a short time later and he agreed to pay for the ride to go to Blackadore Street. Booker was seated directly behind Rollins in the left rear passenger seat. When they approached the intersection of Blackadore and Ravina, Rollins stopped the car. Scheuermann, who was on the phone, thought that Booker was going to pay Rollins for the jitney ride since he was fiddling with something inside of his hoodie. Booker then pulled a silver gun and put it to Rollins head and told him to "give it up." When Brown saw the gun, he opened the right rear passenger door and ran from the car. Rollins attempted to swat the gun away from Booker and Scheuermann grabbed his wrist in an effort to get it away from Booker. Rollins then attempted to push Booker toward the open right rear door when Booker started to fire anywhere between five and six shots at Rollins. Booker then fled from the scene. The Escalade started to drift back down Blackadore until it hit another car and came to rest. Rollins then opened the driver's door and rolled out of the car and was lying on the ground. Scheuermann called 911 and requested the police and paramedics who arrived within ten minutes of that call. It is obvious that Rollins was in critical condition as a result of the life-threatening wounds that he received. When he was transported by the paramedics to Presbyterian-University Hospital, he had no pulse and was subsequently declared dead by the physicians who initially treated him at the hospital. No weapon was found on Rollins by the paramedics or the emergency room personnel who attempted to treat Rollins.

In processing the Escalade, two bullet fragments were found, one in the driver's door and the other one in the driver's footwell. It was determined that the bullet fragments were the same caliber and although they had similar markings, the criminalist who examined these fragments was unable to determine if they hadbeen fired from the same weapon because one of the fragments was so small. Brown and Scheuermann were interviewed that evening and told the Allegheny County Police that Booker was the shooter. The police prepared photo arrays for both Brown and Scheuermann and both of these individuals identified Booker as the individual who shot Rollins. An arrest warrant was issued for Booker and several weeks later, he was arrested in Williamsport, Pennsylvania.

Commonwealth v. Booker, No. 862 WLD 2014, slip op., at 1-3 (Pa. Super. Ct. Oct. 26, 2015) (quoting Trial Court 1925(b) Opinion, March 2, 2015, pp. 3-5)) (ECF No. 9-1 at 181-83).

Booker was charged by criminal information filed in the Court of Common Pleas of Allegheny County at CP-02-CR-0008338-2012 with one count of criminal homicide, one count of robbery - inflicting serious bodily injury, one count of possession of a firearm by a person prohibited, one count of carrying a firearm without a license, and three counts of recklessly endangering another person.

Booker's case proceeded to jury trial from August 20 - 22, 2013, before The Honorable David R. Cashman. At the start of the trial, the court severed the charge of possession of a firearm by person prohibited, which was then tried by the bench along with Booker's remaining charges.² At the conclusion of the trial, the jury convicted Booker of third degree murder; carrying a firearm without a license, and three counts of recklessly endangering another. The jury acquitted Booker of robbery. Judge Cashman convicted Booker of possession of a firearm by a person prohibited.

On November 26, 2013, Judge Cashman sentenced Booker to an aggregate sentence of 285 months (23.75 years) to 570 months (47.5 years) of incarceration for third degree murder and possession of a firearm, to be followed by seven years of probation.

Booker, through counsel, filed a series of post-sentence motions. The trial court did not rule on the motions and on May 7, 2014, the motions were denied by operation of law under Pennsylvania Rule of Criminal Procedure 720(B)(3)(b). On direct appeal, Booker, through counsel, raised these two claims:

(i) The trial court erred in failing to instruct the jury on the defense of justification; and

(ii) The trial court erred in failing to instruct the jury on the lesser-included offense of manslaughter.

Defendant-Appellant's Opening Brief (ECF No 9-1 at 118). On October 26, 2015, the Superior Court found the claims were waived for failure to object as required by Pa.R.Crim.P. 647(C) and affirmed the judgment of sentence on that basis. The Pennsylvania Supreme Court denied discretionary review on February 8, 2016. (ECF No. 9-1 at 221).

On March 11, 2016, Booker filed a pro se petition under the Post-Conviction Relief Act ("PCRA") claiming that his trial counsel, Elizabeth Delosa, Esquire, was ineffective for failing to do the following:

(i) appropriately object to the trial court's denial to charge the jury on the defense of justification / self-defense;

(ii) appropriately object to the trial court's denial to charge the jury on the lesser-included offense of manslaughter;

(iii) adequately consult Booker on his right to testify and in giving Booker unreasonable advice regarding that right; and

(iv) present Alice Applegate, Ph.D., to testify as an expert on Booker's unreasonable belief in using deadly force.

PCRA Petition, at 7 (ECF No. 9-1 at 228). On May 18, 2016, attorney Charles R. Pass III, Esquire was appointed counsel for Booker.

On June 16, 2017, Attorney Pass filed a motion for leave to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988) (en banc), along with an accompanying fifty-five page no-merit brief. (ECF No. 9-2 at 9-68). On July 14, 2016, the trial court issued a notice of intent to dismiss the PCRA petition without a hearing, to which Booker filed a pro se response. (ECF Nos. 9-2 at 70-78). On September 20, 2016, the trial court dismissed the PCRA petition.

On May 3, 2017, acting pro se, Booker appealed the denial of his PCRA petition to the Superior Court and raised these four issues:

(i) Did the PCRA Court err in rejecting without a hearing Booker's claim that the trial counsel was ineffective for failing to lodge a timely and specific objection to the Court's refusal to charge the jury on justification / self-defense?

(2) Did the PCRA Court err in rejecting without a hearing Booker's claim that the trial counsel was ineffective for failing to lodge a timely and specific objection to the Court's refusal to charge the jury on the lesser-included offense of manslaughter?

(3) Did the PCRA Court err in rejecting without a hearing Booker's claim that the trial counsel was ineffective where she failed to provide a full consultation about Booker's right to testify, offered unreasonable advice to Petitioner not to testify, and thereby depriving Booker of his right to testify and the right to a planned and coherent trial strategy?

(4) Did the PCRA Court err in rejecting without a hearing Petitioner's claim that trial counsel was ineffective for failing to present Dr. Alice Applegate, Ph.D., an expert in forensic psychology, as a witness to support the "unreasonable belief facet of the defense?

Booker's Appellate Brief at 2. (ECF No. 9-2 at 118). On October 12, 2017, the Superior Court of Pennsylvania affirmed the order denying the PCRA Petition, ECF No. 9-2 at 228-233. No further appeals were taken.

Having been denied relief in state court, Booker filed in this Court a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 raising these six claims:

(1) Trial

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