Lee v. Eckard, 2:15-cv-00783

• Decision Date: 09 March 2018
• Docket Number: No. 2:15-cv-00783,2:15-cv-00783
• Parties: ESSITE LEE, Petitioner, v. ECKARD, THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY, and THE PENNSYLVANIA ATTORNEY GENERAL, Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

ESSITE LEE, Petitioner, v. ECKARD, THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY,and THE PENNSYLVANIA ATTORNEY GENERAL, Respondents.

No. 2:15-cv-00783

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

March 9, 2018

OPINION

Report and Recommendation, ECF No. 33 - Adopted

Joseph F. Leeson, Jr. United States District Judge

I. INTRODUCTION

Petitioner Essite Lee filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in the Philadelphia County Court of Common Pleas of two counts of first-degree murder and one count of possession of an instrument of crime. With permission, Lee subsequently filed a Memorandum of Law in support of his petition. After full briefing, Magistrate Judge Jacob P. Hart issued a Report and Recommendation ("R&R") recommending that the habeas corpus claims be denied. Petitioner has filed objections to the R&R. After de novo review, this Court adopts the R&R and denies habeas relief.

II. STANDARDS OF REVIEW

A. R&R with objections

When objections to a report and recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). "District Courts, however, are not required to make any separate findings or conclusions when reviewing a Magistrate Judge's recommendation de novo under 28 U.S.C. § 636(b)." Hill v. Barnacle, 655 F. App'x. 142, 147 (3d Cir. 2016). The "court may accept, reject, or modify, in whole or in part, the findings and recommendations" contained in the report. 28 U.S.C. § 636(b)(1)(C).

B. Habeas corpus petitions under 28 U.S.C. § 2254

Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process" before seeking federal habeas review. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). An unexhausted or procedurally defaulted claim cannot provide the basis for federal habeas relief. See Coleman v. Thompson, 501 U.S. 722, 732-33 (1991) (explaining that a "habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion [because] there are no state remedies any longer 'available' to him").

The AEDPA "imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt." Felkner v. Jackson, 562 U.S. 594, 598 (2011) (internal quotations omitted). See also 28 U.S.C. § 2254(d);¹ Hunterson v. Disabato, 308 F.3d 236, 245 (3d Cir. 2002) ("[I]f permissible inferences could be drawn either way, the state court decision must stand, as its determination of the facts would not beunreasonable."). Additionally, "a federal habeas court must afford a state court's factual findings a presumption of correctness and that [] presumption applies to the factual determinations of state trial and appellate courts." Fahy v. Horn, 516 F.3d 169, 181 (3d Cir. 2008). The habeas petitioner has the "burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

The heightened level of deference in § 2254(d) is not applicable to a state court's determination as to whether a petitioner waived his right to review because there has not been an "adjudication on the merits." Fahy, 516 F.3d at 180. But, "the § 2254(e)(1) presumption of correctness applies regardless of whether there has been an 'adjudication on the merits' for purposes of § 2254(d)." Nara v. Frank, 488 F.3d 187, 200-01 (3d Cir. 2007). Also, "in referencing 'adjudication on the merits,' AEDPA draws no . . . distinction for alternative rulings. Rather, it suggests that where a state court has considered the merits of the claim, and its consideration provides an alternative and sufficient basis for the decision, such consideration warrants deference." Rolan v. Coleman, 680 F.3d 311, 321 (3d Cir. 2012).

C. Claims of ineffective assistance of counsel

When considering ineffective assistance of counsel claims under § 2254, the question before a federal court is not whether the state court's determination was correct, but whether the determination was unreasonable. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). "And, because the Strickland² standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Id. (describing "the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard").

To establish counsel's ineffectiveness, a petitioner must show: (1) counsel's performance fell below an objective standard of reasonableness; and (2) the performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668 (1984). There is a strong presumption that counsel is effective and the courts, guarding against the temptation to engage in hindsight, must be "highly deferential" to counsel's reasonable strategic decisions. Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). The mere existence of alternative, even more preferable or more effective, strategies does not satisfy the first element of the Strickland test. Id. at 86. To establish prejudice under the second element, the petitioner must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000) (quoting Strickland, 466 U.S. at 694). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689 (explaining that courts should not second-guess counsel's assistance and engage in "hindsight, to reconstruct the circumstances of counsel's challenged conduct"). The court must consider the totality of the evidence and the burden is on the petitioner. Id. at 687, 695.

To establish counsel's ineffectiveness for failure to investigate or call a witness, a petitioner must establish: "(1) that the witness existed; (2) that the witness was available; (3) that counsel was informed of the existence of the witness or should have known of the witness'[s] existence; (4) that the witness was available and prepared to cooperate and would have testified on petitioner's behalf; and (5) that the absence of the testimony prejudiced the petitioner." Macey v. Lawler, No. 08-3297, 2009 U.S. Dist. LEXIS 129196, at *16 (E.D. Pa. Dec. 30, 2009) (citing Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004)). The habeas petitioner "must make a specific, affirmative showing as to what the missing evidence would have been, and prove that this witness's testimony would have produced a different result."Romansky v. Folino, No. 1:CV-09-01472, 2017 U.S. Dist. LEXIS 28405, at *91 (M.D. Pa. Mar. 1, 2017) (citing Commonwealth v. Ervin, 766 A.2d 859, 865 (Pa. Super. 2000) (internal quotations omitted)).

IV. ANALYSIS

This Court has conducted de novo review and overrules Lee's objections largely for the reasons set forth in R&R. Magistrate Judge Hart thoroughly reviewed each of Lee's habeas claims and the state court record, and succinctly analyzed the facts and applicable legal authority. Although this Court has conducted de novo review of all of Lee's claims, it writes separately to address only a few of his objections. See Hill, 655 F. App'x. at 147.

A. Trial counsel was not ineffective for failing to call witnesses.

In discussing trial counsel's alleged ineffectiveness for failing to call Brenda Lee, Lamar Osbourne, Markisha Graham, Warren Harding, Jamillah Butler,³ Walter Perry, and Basheen Harrison as witnesses, the Magistrate Judge accorded deference to the PCRA court's decision. The Magistrate Judge concluded that counsel was not ineffective under Strickland for failing to call these witnesses because Lee made a knowing and informed statement that he did not want these witnesses to testify. See R&R 5-8, ECF No. 33.

Upon de novo review, this Court concludes that the state court did not render an "adjudication on the merits" on all aspects of this claim to warrant complete deference. Rather, the PCRA court, considering the trial court's colloquy with Lee regarding his decision not to have any witnesses testify on his behalf, concluded that Lee "waived" an ineffectiveness claim with respect to trial counsel's failure to call Brenda Lee, Lamar Osbourne, and Markisha Graham as alibi witnesses, as well as counsel's failure to call Basheen Harrison as a fact witness. SeePCRA Court's Rule 1925 Opinion dated August 9, 2012, at 7 (citing Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa. Super. 2000) ("A defendant who voluntarily waives the right to call witnesses during a colloquy cannot later claim ineffective assistance and purport that he was coerced by counsel.")). The PCRA court's determination that the claim respecting these four witnesses was waived is not entitled to deference because it was not an "adjudication on the merits."⁴ See Fahy, 516 F.3d at 180 (holding that § 2254(d) deference is not applicable to a state court's determination as to whether a petitioner waived his right to review).⁵ But, the PCRA court's finding that Lee "knowingly, intelligently and voluntarily advised the court that he did not wish these witnesses to be called," PCRA Opinion at 7, is presumed to be correct. See Swinson v. Pennsylvania, No. 07-3934, 2008 U.S. Dist. LEXIS 117342, at *21-22 (E.D. Pa. Sep. 29, 2008) (holding that even if the state court's findings on the validity of the petitioner's waiver were not entitled to deference under § 2254(d), "the underlying explicit and implicit factual findings upon which the state court based its conclusions must be afforded a presumption of correctness under § 2254(e)(1) since petitioner has...