Lee v. Giroux

• Decision Date: 12 August 2015
• Docket Number: CIVIL NO. 3:14-CV-00772
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: MARCALE ANTHONY LEE, Petitioner v. NANCY GIROUX, ET AL., Respondents

MARCALE ANTHONY LEE, Petitioner v. NANCY GIROUX, ET AL., Respondents

CIVIL NO. 3:14-CV-00772

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 12, 2015

(Judge Conaboy)

MEMORANDUM

Petitioner, Marcale Anthony Lee on April 22, 2014, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Lee attacks the judgment of conviction and sentence imposed on August 19, 2009, by the Court of Common Pleas of Dauphin County, Pennsylvania, after a jury returned guilty verdicts on May 14, 2009. Lee was convicted of criminal attempt (homicide), criminal conspiracy (robbery) and firearms not to be carried without a license, and received an aggregate sentence of 12 to 27 years of imprisonment.

Lee alleges that both trial and post-conviction counsel were guilty of ineffective assistance of counsel. With respect to trial counsel Lee claims that counsel failed to (1) pursue a direct appeal of his conviction, (2) call an alibi witness, (3) present evidence from an individual who allegedly witnessed theattempted homicide and robbery, and (4) request an alibi jury instruction. Lee claims that post-conviction counsel who raised trial counsel's alleged infectiveness in a petition under the Pennsylvania Post Conviction Collateral Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9551, was also ineffective in failing to pursue an alleged conflict of interest of trial counsel. Lee claims that after he was sentenced his trial counsel did not zealously and effectively pursue a direct appeal or newly discovered evidence because Lee failed to pay trial counsel additional attorney's fees. Lee claims that post-conviction counsel was aware of this conflict and did not adequately address it when seeking collateral relief under the PCRA. The claim relating to the failure to call the alleged eyewitness is raised in the context of both ineffective assistance of trial counsel as well as newly discovered evidence warranting a new trial. Lee claims that either counsel was aware of the eyewitness and was ineffective for failing to call the witness or that the witness was discovered after Lee was sentenced and the testimony that the alleged eyewitness proffered warrants a new trial.

By Order dated May 21, 2014, in accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), Lee was advised that he could (1) have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by thecourt of appeals, or (2) withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Doc. 5. On June 2, 2014, Lee filed a notice of election form indicating that he wanted to proceed on the petition as filed. Doc. 6. By Order dated June 10, 2014, the Court directed respondents to file an answer to Lee's petition and a brief in support of their answer. Doc. 7. An answer, brief and appendix of exhibits were filed by the Dauphin County District Attorney on July 1, 2014. Doc. 11. The Dauphin County District Attorney contended that Lee's petition was untimely filed with this court. After reviewing the record this court determined that Lee timely filed the petition and the court directed the Dauphin County District Attorney to respond to the merits of the petition. Doc. 15, Memorandum and Order dated January 12, 2014. On February 27, 2015, the Dauphin County District Attorney filed a supplemental response to Lee's petition which included a brief, the state trial court record and multiple exhibits. Doc. 19, Response to Petition for Habeas Corpus. Lee's petition became ripe for disposition on March 16, 2015, when he elected not to file a traverse.

For the reasons that follow, the Court will deny Lee's petition.

Background

After Lee was sentenced to an aggregate term of 12 to 27 years, Lee's attorney filed a motion to modify sentence which wasdenied by the trial court on August 26, 2009, and then Lee on September 25, 2009, filed a direct appeal to the Superior Court raising a claim that the evidence was insufficient to find him guilty beyond a reasonable doubt. The Superior Court of Pennsylvania on January 6, 2011, affirmed Lee's judgment of conviction and sentence. Doc. 19-5, Decision of the Superior Court. Lee did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania. Subsequently, Lee filed a PCRA petition with the trial court in which he claimed he was entitled to a new trial because (1) trial counsel was guilty of ineffective assistance of counsel when he failed to present an alibi witness and failed to request an alibi jury instruction, and (2) newly discovered evidence, i.e., an eyewitness to the crime reported that Lee was not present at the time the crimes were committed. The trial court on March 8, 2013, denied Lee's PCRA petition. On September 26, 2013, the Superior Court affirmed the trial court's decision denying Lee relief under the PCRA. Lee did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania.

The court has reviewed the transcript of Lee's jury trial held in state court from May 11 through May 14, 2009, before the Honorable Jeannine Turgeon as well as the transcripts of the hearings held before Judge Turgeon on June 5 and August 23, 2012, with respect to Lee's PCRA petition.

There were two individuals involved in the robbery and attempted homicide who were tried jointly: Lee and Pedro Morrell. The trial resulted in the conviction of Lee and a hung jury with respect to Morrell.¹ Some of the essential background of this case (which is substantiated by this court's review of the state court record) is succinctly set forth in the opinion of Judge Turgeon addressing Lee's PCRA petition as follows:

The charges arose out of the robbery and shooting of Jason Barton on November 25, 2007, by [Lee] and his conspirator Pedro Morrell during an aborted drug deal. . . .

Jason Barton testified that on the evening of Sunday[,] November 25, 2007, [Lee] telephoned Barton to arrange to buy three-quarters of an ounce of crack cocaine.[] Barton was a drug dealer and [Lee], known to Barton as "Killa/Killer" or "Black Nigga," was his client. [] At the time of the shooting, Barton had known petitioner for two to three months and had contacted him by phone and made personal contact with him at least twenty times.[] Phone records corroborated that seven calls were placed between Barton's cell phone and one of the three cell phone numbers used by petitioner on November 25, 2007 (number ending 2462), the last two calls occurring at 9:18 p.m and 9:26 p.m. EST, respectively. []

Barton drove to meet [Lee] in a parking lot of the Hall Manor housing project, receiving directions over the phone from [Lee]. [] [Lee] approached on foot and entered the passenger side of [] Barton's vehicle. [] As Barton drove out of the parking lot, another vehicle, allegedly driven by Morrell, began to follow them. [] Barton asked [Lee] about the other vehicle and [Lee] told him, "that's my man," indicating he would provide money for the drug buy. []

After making several turns, [Lee] directed Barton to stop the vehicle. Barton complied, pulling back into the parking lot where they initially met. [] [Lee] then pulled the keys from the ignition and stuck a gun into Barton'sside. [] Meanwhile, Morrell approached Barton's car on foot and tapped the driver's side window with a gun. [] Morrell tried unsuccessfully to open Barton's locked door so he walked around to the front of the vehicle at which point Barton fled on foot into a nearby field while [Lee] and/or Morrell fired shots at him. [] Barton was struck numerous times and fell. [] As he was lying on the ground, the two perpetrators stood over him with guns pointed and stole his ring, bracelet, watch and money. [] [Lee] instructed Morrell to shoot the "rat" but Morrell's gun jammed so petitioner fired his own gun, striking Barton in the face. [] Barton was somehow able to get up and run toward a nearby neighborhood. [] [Lee] caught up with him and struck him repeatedly on the head with his gun. [] As people gathered, [Lee] fled. [] Barton suffered four bullet wounds, was hospitalized and underwent multiple surgeries including insertion of a metal plate in his face. []

Police were alerted to the shooting by dispatch, around 10:00 p.m. [] Harrisburg Police Detective Richard Iachini testified that Barton was able to communicate that night but did not answer police when asked who had shot him. [] Detective Iachini next spoke with Barton at his girlfriend's home on December 3, 2007, at which time he admitted he had planned a drug deal that night with "Killer" but was robbed instead. [] On December 6, 2007, Detective Iachini met with Barton and his attorney at the police station. After Barton was assured he would not be charged with any drug crimes, he told police he was trying to deliver 3/4 of an ounce of crack cocaine to [Lee]. [] Detective Iachini then looked through Barton's cell phone, which had been collected at the crime scene, and identified three phone numbers Barton used to contact [Lee], one of which he later discovered was registered under the name Marcale Lee (number ending 2462).[] Having found [Lee's] name, Detective Iachini prepared a photo array and Barton positively identified [Lee} as the shooter on January 3, 2008. []

Barton similarly testified that during the December 3, 2007 meeting with Detective Iachini, he identified "Killa" as the person who shot him. He told police at the time he did not know [Lee's] real name. [] Barton was able to identify petitioner from the photo array and later identified [Lee] in court. [] Barton admitted at trial, however, that he told an officer on the night of the shooting that he didn't know who shot him. [] He clarified that he meant to say

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