Locke v. Dillman

• Decision Date: 09 January 2013
• Docket Number: Civil Action No. 11–05833.
• Citation: 915 F.Supp.2d 670
• Parties: Ronald LOCKE, Petitioner, v. Jeffrey N. DILLMAN, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

915 F.Supp.2d 670

Ronald LOCKE, Petitioner,

v.Jeffrey N. DILLMAN, et al., Respondents.

Civil Action No. 11–05833.

United States District Court, E.D. Pennsylvania.

Jan. 9, 2013.

Ronald Locke, Frackville, PA, pro se.

Joshua Scott Goldwert, Philadelphia District Attorney's Office, Philadelphia, PA, for Respondents.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Ronald Locke (“Petitioner”) is a prisoner at the State Correctional Institution in Frackville, Pennsylvania. Petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Habeas Petition”) challenging his custody. Magistrate Judge Sandra Moore Wells recommended denial of the Habeas Petition and Petitioner raised two objections. For the reasons that follow, the Court adopts Magistrate Judge Wells's Report and Recommendation.

I. BACKGROUND

Petitioner is currently serving a prison term of 18–36 years based on convictions for third-degree murder, criminal conspiracy, and related firearms offenses. The convictions stem from an incident on December 8, 1999, in which he and a confederate chased down a man named Arian McCullough, who had just purchased marijuana from drug dealers doing business on the block where Petitioner was standing. Report and Recommendation (“R & R”), ECF No. 10, 680; Gov't's Response to Pet. For Writ of Habeas Corp. 1, ECF No. 6. Petitioner shot McCullough in the back, fatally wounding him. R & R, 680. Petitioner was convicted in the Philadelphia Court of Common Pleas on November 17, 2003. Habeas Petition, ECF No. 1, 1. He timely appealed his judgment of sentence to the Pennsylvania Superior Court on March 30, 2005, where the judgment was affirmed. R & R, 680. The Pennsylvania Supreme Court denied Petitioner's request for allowance of appeal on September 29, 2005. Id.

On December 12, 2006, Petitioner, pro se, collaterally attacked his convictions under the Pennsylvania Post Conviction Relief Act (“PCRA”). Id. Court-appointed counsel filed an amended petition, alleging that trial counsel was ineffective for: (1) failing to file and litigate a motion to dismiss the charges against him for lack of a speedy/prompt trial; and (2) stipulating to the testimony of the Commonwealth's only eyewitness. Id. at 681, n. 3. On July 15, 2009, the PCRA court issued a notice of its intent to dismiss the petition, without an evidentiary hearing, and on August 21, 2009, the court dismissed the petition. Id. at 680. The Pennsylvania Superior Court affirmed. Commonwealth v. Locke, 23 A.3d 1084 (Pa.Super.Ct.2011)(table). On August 24, 2011, the Pennsylvania Supreme Court denied his appeal. Commonwealth v. Locke, 611 Pa. 674, 27 A.3d 1015 (Pa.2011) (table).

On September 8, 2011, Petitioner filed the instant petition, pro se, asserting several claims for federal habeas relief under 28 U.S.C. § 2254. Pet. for Writ of Habeas Corp. 1–19 (hereinafter “Habeas Pet.”), ECF No. 1. Petitioner raises claims of ineffective assistance of counsel at the trial level, the direct appeal level, and the state collateral appeal level. The Commonwealth responds that Petitioner's claims should be dismissed as untimely,¹ or in the alternative, that his procedurally defaulted and meritless claims should be dismissed or denied. Gov't's Resp., 8–22. Upon referral, Judge Wells issued a report and recommendation to deny the Habeas Petition on the merits. R & R, 682. Petitioner objected. Pet'r's Objections, ECF No. 12. The matter is now ripe for disposition.

II. LEGAL STANDARD

The Court may refer an application for a writ of habeas corpus to a U.S. Magistrate Judge for a report and recommendation. Section 2254 R. 10 (“A magistrate judge may perform the duties of a district judge under these rules, as authorized under 28 U.S.C. § 636.”); see also28 U.S.C. § 636(b)(1)(B) (2006 & Supp. IV 2011). A prisoner may object to the magistrate judge's report and recommendations within fourteen days after being served with a copy thereof. See28 U.S.C. § 636(b)(1); E.D. Pa. R. 72.1(IV)(b). The Court must then “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court does not review general objections. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir.2011) (“We have provided that § 636(b)(1) requires district courts to review such objections de novo unless the objection is not timely or not specific.” (internal quotation marks removed)). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. Therefore, the Court will conduct a de novo review of those portions of the Report and Recommendation to which Petitioner objects.

On habeas review, the Court must determine whether the state court's adjudication of the claims raised was (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented. See28 U.S.C. § 2254(d) (2006).

III. DISCUSSION

Magistrate Judge Wells recommends that Petitioner's habeas claims be denied without an evidentiary hearing, and that there is no probable cause to issue a certificate of appealability.

A. Ineffective Assistance of Counsel: Right to a Unanimous Jury Verdict

In Ground One, Petitioner asserts that his trial counsel was ineffective for failing to properly advise him of his right to a unanimous jury verdict. Habeas Pet. 8. He further asserts that his direct appellate and PCRA counsel were ineffective for failing to raise his trial counsel's ineffectiveness. Id. at 9. Respondents argue that Petitioners claims in Ground One are procedurally defaulted. Gov't's Resp. 16. The claims were never presented to any state appellate court for review, and are thus unexhausted. Id. Furthermore, Petitioner is now time-barred from pursuing state postconviction remedies. Id.

1. Procedurally Defaulted Claims

Generally, a procedurally defaulted claim must be dismissed without review on the merits. See28 U.S.C. § 2254(b)(1)(A). However, where a Petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or show that the court's failure to consider the claim would result in a “fundamental miscarriage of justice,” a procedurally defaulted claim may succeed. Coleman v. Thompson, 501 U.S. 722, 748, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “Cause” exists when Petitioner shows “some objective factor external to the defense impeded efforts to comply with the State's procedural rule.” Slutzker v. Johnson, 393 F.3d 373, 381 (3d Cir.2004). In Coleman, the Supreme Court held that ineffective assistance of counsel on collateral review does not constitute cause to excuse a procedural default. 501 U.S. at 753–54, 111 S.Ct. 2546.

Since the time of Petitioner and Respondent's initial filings, the Supreme Court, in Martinez v. Ryan, recognized a narrow exception to its holding in Coleman.²––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). That is, “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. at 1315. Based on the failure of Petitioner's state post-conviction counsel to raise the ineffective assistance of his trial counsel on Ground One, Petitioner could establish cause to excuse his procedural default. For this reason, Magistrate Judge Wells appropriately conducted a de novo review of the merits of claims raised in Ground One.

2. Legal Standard: Ineffective Assistance of Counsel

The Sixth Amendment right to counsel is the right to effective assistance of counsel. E.g., Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To warrant reversal of a conviction, a prisoner must show (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See id. at 687, 104 S.Ct. 2052;Holland v. Horn, 519 F.3d 107, 120 (3d Cir.2008). The principles governing ineffective assistance claims under the Sixth Amendment apply in collateral proceedings attacking a prisoner's sentence. See Strickland, 466 U.S. at 697–98, 104 S.Ct. 2052.

To prove deficient performance, a prisoner must show that his “counsel's representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. The Court will consider whether counsel's performance was reasonable under all the circumstances. Id. Furthermore, the Court's “scrutiny of counsel's performance must be highly deferential.” See id. at 689, 104 S.Ct. 2052. That is, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. In raising an ineffective assistance claim, the petitioner must first identify the acts or omissions alleged not to be the result of “reasonable professional judgment.” Id. at 689, 104 S.Ct. 2052. Next, the court must determine whether those acts or omissions fall outside of the “wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052.

“[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” United States v. Gray, 878 F.2d 702, 710 (3d Cir.1989). A petitioner rebuts this presumption by showing either that his counsel's “conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound.” Thomas v. Varner, 428 F.3d 491, 499–500 (3d Cir.2005). When the record does not disclose counsel's actual strategy the presumption is rebutted by a “showing that no sound strategy ... could have supported the conduct.” Id. at 500.

To prove prejudice, a convicted defendant must affirmatively prove that the alleged attorney errors “actually had an adverse effect on the defense.” Id. at 693. “The defendant must show that there is a reasonable...