Gunter v. Superintendent of SCI Benner Twp., 1:20-cv-00255

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Writing for the CourtRICHARD A. LANZILLO, United States Magistrate Judge.
Decision Date10 May 2022
Docket Number1:20-cv-00255

TREY GUNTER, Petitioner


No. 1:20-cv-00255

United States District Court, W.D. Pennsylvania

May 10, 2022


RICHARD A. LANZILLO, United States Magistrate Judge.

Before the Court is an amended petition for a writ of habeas corpus filed by Trey Gunter, an inmate at the State Correctional Institution at Benner Township, pursuant to 28 U.S.C. § 2254. For the reasons that follow, the petition will be denied.[1]

I. Background

Gunter entered a guilty plea to murder of the third degree in the Court of Common Pleas of Erie County. On February 9, 2016, he was sentenced to 15 to 40 years' imprisonment. Gunter filed a post-sentence motion seeking to modify his sentence. It was denied. The Pennsylvania Superior Court affirmed the judgment of sentence on May 8, 2017. Commonwealth v. Gunter, 170 A.3d 1200 (Pa. Super. 2017) (unpublished memorandum). In that memorandum, the Superior Court set forth the pertinent facts of the case:

[Gunter's] conviction stems from an incident that occurred on November 17, 2014, at an apartment off-campus of Edinboro University. [Gunter], a Pittsburgh native
was an Edinboro student one semester away from graduating The victim, Tobiah Johnson, had taken [Gunter's] gun several days earlier. [Gunter] obtained another gun, and, as alleged by the Commonwealth, with the help of Ryan Andrews and Michael Barron, confronted the victim outside of the victim's apartment. The Commonwealth further alleged that Mr. Barron was waiting outside of the victim's apartment and that when the victim came out, Mr. Barron punched him in his head, knocking him to the ground. [Gunter] and Mr. Andrews got out of their vehicle and assaulted the victim. When the victim tried to get up, [Gunter] shot him in his back, killing him.

Id. (unpublished memorandum at 1-2) (citing Trial Court Opinion, 8/8/16, at 1-2).

On January 19, 2018, Gunter filed a petition for relief pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. The PCRA court appointed counsel, who filed a supplemental PCRA petition. The PCRA court subsequently dismissed the petition. Gunter appealed the dismissal; the Pennsylvania Superior Court affirmed it on August 13, 2019. Commonwealth v. Gunter, 221 A.3d 269 (Pa. Super. 2019) (unpublished memorandum). The Pennsylvania Supreme Court denied Gunter's petition for allowance of appeal on May 6, 2020. Commonwealth v. Gunter, 232 A.3d 567 (Pa. 2020).

Gunter initiated this litigation on August 31, 2020, by filing a pro se petition for writ of habeas corpus. ECF No. 1. Respondents, through the Erie County District Attorney's Office, filed a response thereto. ECF No. 7. On June 11, 2021, Gunter's newly obtained counsel petitioned to file an amended petition for writ of habeas corpus, “to include all meritorious claims for the Petitioner after attorney analysis.” ECF No. 13. The Court granted such leave, ECF No. 14, and Gunter filed the instant amended petition on September 14, 2021. ECF No. 16. Respondents filed a response on October 1, 2021. ECF No. 17. Gunter filed a traverse on December 28, 2021. ECF No. 23. The petition is ripe for disposition.

II. Analysis

A. Ground One: Ineffective assistance of trial counsel regarding self-defense


In Ground One, Gunter asserts that his trial counsel gave him erroneous advice prior to entering his guilty plea and that had he been “correctly informed of the law of self-defense, he would not have taken the guilty plea.” ECF No. 16 at 4-5. Gunter raised this claim in his pro se PCRA petition, ECF No. 23-1 at 4; however, his counsel did not include it in the supplemental PCRA petition, ECF No. 23-2. Because it was not included in the supplemental petition, the PCRA court found the claim to be waived. ECF No. 23-3 at 10. Gunter did not pursue this ineffectiveness claim in his PCRA appeal. Thus, the claim has not been exhausted.

The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. This “exhaustion” requirement is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). See also O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A petitioner shall not be deemed to have exhausted state remedies if he has the right to raise his claims by any available state procedure. 28 U.S.C. § 2254(c).

In order to exhaust a claim, a petitioner must “fairly present” it to each level of the state courts. Lines v. Larkins, 208 F.3d 153, 159 (3dCir. 2000) (citing 28 U.S.C. § 2254(b)); O'Sullivan, 526 U.S. at 848. In Pennsylvania, this requirement means that a petitioner in a non-capital case must have presented every federal constitutional claim raised in his habeas petition to the Court of Common Pleas and then the Superior Court either on direct or collateral appeal. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).

“When a claim is not exhausted because it has not been ‘fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion


requirement is satisfied because there is ‘an absence of available State corrective process.'” McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (quoting 28 U.S.C. § 2254(b)). In such cases, however, applicants are considered to have procedurally defaulted their claims, Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012) (“Procedural default occurs when a claim has not been fairly presented to the state courts ... and there are no additional state remedies available to pursue ... or, when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule ....), and federal courts may not consider procedurally defaulted claims unless “the prisoner can demonstrate 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. To show cause, a petitioner must demonstrate “some objective factor external to the defense” that prevented compliance with the state's procedural requirements. Id. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime, McCleskey v. Zant, 499 U.S. 467, 494 (1991), by presenting new evidence of innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995).

To the extent that Gunter is now time-barred from raising this claim in state court, the exhaustion requirement is excused; however, the claim is procedurally defaulted. See, e.g, Lines, 208 F.3d at 162-66. In an effort to overcome the procedural default, Gunter asserts that the default was caused by PCRA counsel's ineffectiveness in failing to raise this claim in the supplemental PCRA petition. ECF No. 23 at 1-2.

Generally, because there is no federal constitutional right to counsel in a. PCRA proceeding, a petitioner cannot rely on PCRA counsel's ineffectiveness to establish the “cause” necessary to overcome the procedural default of a federal habeas claim., Davila v. Davis, 137 S.Ct. 2058, 2062 (2017).


In Martinez v. Ryan, 566 U.S. 1 (2012), however, the Supreme Court announced a narrow, but significant, exception to this rule. In relevant part, it held that in states like Pennsylvania, where the law requires that claims of ineffective assistance of trial counsel be raised for the first time in a collateral proceeding, a petitioner may overcome the default of a claim of trial counsel's ineffectiveness if the petitioner demonstrates: (1) the defaulted claim of trial counsel's ineffectiveness is “substantial” and (2) PCRA counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668 (1984) for failing to raise that claim in the initial review collateral proceeding. Martinez, 566 U.S. at 17.

In order to demonstrate that the defaulted claim of trial counsel's ineffectiveness is substantial, a petitioner must demonstrate that the claim has “some merit.” Id. at 14.' He has not done so. First, Gunter provides no support whatsoever for his claim. He does not set forth the nature of the allegedly erroneous advice, nor does he set forth the purported basis for a self-defense claim. Further, although the PCRA court found this claim to be waived, it nonetheless thoroughly and persuasively addressed the merits of the claim as follows:

In order for Petitioner to obtain post conviction relief on grounds that his counsel rendered ineffective assistance, he is required to prove:
the underlying claim is of arguable merit, counsel's performance lacked a reasonable basis, and counsel's ineffectiveness caused him prejudice. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Prejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (1999). This standard is the same in the PCRA context as when ineffectiveness claims are raised on direct review. Id. Failure. to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Basemore, 560 Pa. 258,

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