Johnston v. Mahally, CIVIL ACTION NO. 15-04800
| Decision Date | 21 December 2018 |
| Docket Number | CIVIL ACTION NO. 15-04800 |
| Citation | 348 F.Supp.3d 417 |
| Parties | Tyrone JOHNSTON, Petitioner, v. Lawrence MAHALLY, District Attorney of County of Philadelphia, and Attorney General of the State of Pennsylvania Respondents. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Tyrone Johnston, Dallas, PA, pro se.
Max Cooper Kaufman, Ryan Dunlavey, Philadelphia District Atty's Office, Philadelphia, PA, for Respondents.
In a consolidated bench trial, Petitioner Tyrone Johnston ("Petitioner") was convicted of the first-degree murders of Jamel Conner and Stephanie Labance.2 Petitioner was sentenced to life imprisonment for each murder conviction. In relation to his conviction for the murder of Ms. Labance, Petitioner filed a pro se petition (the "Petition") for a writ of habeas corpus under 28 U.S.C. § 2254 seeking relief on multiple grounds.
The case was referred to Magistrate Judge Lynne Sitarski for a report and recommendation ("R & R"). Magistrate Judge Sitarski recommended that the Petition be denied on all nine grounds raised. Petitioner conceded the R & R on all but two grounds, objecting to the recommendations to deny relief for his claims that he suffered from: 1) a violation of the Sixth Amendment's Confrontation Clause in relation to the admission of autopsy reports and testimony of a medical examiner who did not conduct the autopsies (Ground Two); and 2) ineffective assistance of counsel in relation to trial counsel's failure to seek relief for lack of a speedy trial (Ground Four).
For the reasons set forth below, the Court approves the R & R as to Grounds One, Three, Five, Six, Seven, Eight, and Nine denies the Petition on those grounds. Following de novo review of Grounds Two and Four, the Court denies the Petition on those grounds. Finding no merit to any of the grounds raised, the Court denies issuing a writ of habeas corpus and denies issuing a certificate of appealability.
B. Ground Two -- Violation of the Confrontation Clause...426
C. Ground Four -- Ineffective Assistance of Counsel for Failure to Raise a Speedy Trial Claim...427
A. Procedural Requirements...429
B. Referral to a Magistrate Judge for Report and Recommendation...431
A. Clearly established Federal law...433
B. Determination of the facts...435
A. The R & R and Petitioner's Objections...436
B. Petitioner's claim is unexhausted and procedurally defaulted...437
C. The merits of the Sixth Amendment-based claim...438
A. Procedural History
This case proceeded through the state courts in a complicated manner that is not relevant to the Petition.3 Accordingly, a recitation of only the pertinent aspects of the case will suffice at this juncture.4
Petitioner was tried in the Philadelphia Court of Common Pleas ("Trial Court") and convicted of the first-degree murders of Stephanie Labance (Indictment No. CP-51-CR-1300475-2006) and Jamel Conner (Indictment No. CP-51-CR-0004489-2007), and other crimes related to the two murders. See ECF No. 1, Ex. A at 1 n.1 (Post-Conviction Relief Act Court Opinion, April 28, 2014).
Following the protracted post-trial state court proceedings, Petitioner filed a § 2254 petition raising eight grounds for relief in connection with his conviction for the first-degree murder of Stephanie Labance. See ECF No. 1 at 10-20; see also ECF No. 32 at 4-5. The Commonwealth of Pennsylvania filed a response in opposition to the Petition, ECF No. 23, and Petitioner filed a reply, ECF No. 28, in which he raised an additional ground that was not in the Petition. See ECF No. 32 at 5-6.
The R & R addressed all nine grounds brought by the Petitioner during the § 2254 proceedings, and all nine were recommended for denial. See id. at 39. Petitioner objected on only two grounds, and "concede[d] to the remaining [seven grounds] as presented [in the R & R]."5
ECF No. 39 ¶ 20. The objections relate to Ground Two (violation of the Confrontation Clause) and Ground Four (ineffective assistance of counsel for failure to raise a speedy trial claim). See id. ¶¶ 21-40; ¶¶ 41-75. The following sections discuss the substance of Petitioner's claims on these two grounds and the relevant post-conviction filings.
B. Ground Two -- Violation of the Confrontation Clause
During the trial, Assistant Medical Examiner Dr. Gary Collins was permitted to testify regarding the cause and manner of death of Ms. Labance, as well as the other victim, Mr. Conner. ECF No. 30-2 at 138:9-186:13 (N.T. Feb. 25, 2009). However, Dr. Collins neither conducted nor was present at either of the autopsies; Dr. Ian Hood conducted Ms. Labance's autopsy, and Dr. Gregory McDonald conducted Mr. Conner's autopsy. Id. at 142:13-143:12. At the time of the trial, Drs. Hood and McDonald were no longer employed by the Philadelphia Medical Examiner's Office. Id. at 143:2-15. To prepare for his testimony, Dr. Collins reviewed the written reports by Drs. Hood and McDonald, as well as the autopsy photographs and toxicology reports. Id. at 143:16-144:4; 173:6-22.
At the beginning of Dr. Collins's testimony, the Commonwealth conducted voir dire as to his qualifications and experience. Id. at 138:22-141:18. The Commonwealth then tendered Dr. Collins as "an expert in the field of forensic pathology."Id. at 141:19-21. Defense counsel opted not to conduct voir dire of Dr. Collins. Id. at 141:22-142:4. The court qualified Dr. Collins as competent to testify by way of expert opinion in the field of forensic pathology. Id. at 142:5-7; Pa. R. Evid. 702.
After Dr. Collins had testified about who had conducted the autopsies and written the reports in the case, he was asked whether he was "able to draw a conclusion [himself] regarding the cause and manner of death of Mr. Jamel Conner, based on the information [he] received from Dr. McDonald's examination." Id. at 144:12-15. Defense counsel objected on the basis that Dr. Collins "didn't view the body, and [was] not competent to testify as to the autopsy results merely from reading someone else's report." Id. at 144:18-21. Dr. Collins then testified that he was able to give competent testimony and had given testimony in similar circumstances, and for both Drs. McDonald and Hood. Id. at 144:24-145:20; 146:6-11.
After a few more questions, defense counsel again objected, and a lengthy sidebar discussion ensued. Id. at 147:18-148:20; 150:5-159:14. Defense counsel explicitly stated that the objection was not to Dr. Collins being allowed to refer to the report, but to the fact that there were additional photographs that had not been provided to the defense in discovery. Id. at 148:2-20. The court and counsel discussed Dr. Collins's ability to testify about the cause of death based on the photographs or contents of the report; whether a defense expert could, in theory, testify from the same materials; whether there were issues actually in dispute concerning the victims being shot, the wound
paths caused by the bullets, and the gunshots as a cause of death; and whether the autopsy reports were business records. Id. at 147:18-148:20; 150:5-159:14. Defense counsel indicated that the cause of death from multiple gunshot wounds
was not disputed. Id. at 153:16-154:8; 155:19-156:8. Further, defense counsel conceded that a defense expert could base his or her testimony on the report and photographs, but there would likely be additional photographs of the inside of the body. Id. at 154:9-155:18. Although there was some discussion of business records, defense counsel did not clearly raise a hearsay objection. The court allowed Dr. Collins to continue his testimony. Id. at 159:7-9.
Following the denial of his post-sentencing motions, Petitioner appealed, raising several challenges including the allegation that his right to confront adverse witnesses had been violated. SCR No. D10; SCR No. D13 at 2, 5, 8-9. On direct appeal, the Superior Court affirmed the Trial Court. SCR No. D15 at 1; 8-10; see also ECF No. 23-1. Like the Trial Court, the Superior Court reasoned that Dr. Collins had not simply read in portions of another medical examiner's report, but gave his own opinions based on the facts in the reports and the photographs. SCR No. D15 at 9. Furthermore, the Superior Court noted that defense counsel took the opportunity to cross-examine Dr. Collins. Id.
In the Petition, Petitioner asserts that his rights under the Constitution were violated because he was prevented from confronting and cross-examining the medical examiner who performed the autopsy and wrote the report. ECF No. 1 at 10.
Petitioner argues that the state courts adjudicated his claim by finding that: 1) "the autopsy reports were non-testimonial and thus did not violate petitioner['s] confrontation rights," and 2) both [Drs. McDonald and Hood] were unavailable to testify." ECF No. 6 at 11. Petitioner further argues that the state courts should have taken existing Supreme Court precedent that was not directly on point and extended it to his case, and that to not do so was unreasonable. Id. at 14-15.
C. Ground Four -- Ineffective Assistance of Counsel for Failure to Raise a Speedy Trial Claim
The criminal complaint for the killing of Ms. Labance was filed on July 14, 2006, and the trial began on February 17, 2009.6 See ECF No. 23-3 at 2. Trial counsel did not file a motion asserting a denial of Petitioner's right to a speedy trial.
Following his conviction, Petitioner asserted an...
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