Neely v. Garmen, CIVIL ACTION NO. 3:16-CV-1565

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
Writing for the CourtChief Judge Conner
Docket NumberCIVIL ACTION NO. 3:16-CV-1565
Decision Date14 June 2019




June 14, 2019

(Chief Judge Conner)


Petitioner Kevin James Neely ("Neely") filed the instant application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2010 conviction and sentence in the Court of Common Pleas of Dauphin County, Pennsylvania. (Doc. 1). We will deny Neely's petition.

I. Factual Background

The Superior Court of Pennsylvania summarized the factual background of this case as follows:

In the early morning hours of December 18, 2009, the victim [Brian Coleman] was working as a "bouncer" at a Harrisburg area nightclub. [Coleman] observed an altercation between [Neely] and another person and attempted to remove them from the club. After initial success in separating [Neely] and the man with whom he had been fighting, [Coleman] was obliged to go outside the club and break them up again because [Neely] was "killing that little guy." In the interim, four of [Neely]'s associates had arrived by car and joined [Neely] in "pounding" the other person. When [Coleman] attempted to restrain [Neely, Neely] and his cohorts all assaulted [Coleman]. [Neely] pistol whipped [Coleman] then followed him to where [Coleman] had withdrawn and shot him in the stomach at point blank range.

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Commonwealth v. Neely, No. 1044 MDA 2011, 55 A.3d 130 (Pa. Super. Ct. July 10, 2012) (table) (quoting Commonwealth v. Neely, No. CP-22-CR-1329-2010, 2011 WL 10135779 (Pa. Ct. Com. Pl. Dauphin Cty. Oct. 13, 2011)).

II. Procedural History1

Neely was charged by information with attempted murder causing serious bodily injury, aggravated assault, persons not to possess a firearm, carrying a firearm without a license, and recklessly endangering another person. Id. at 1; (Doc. 23 at 24). Following a three-day jury trial, Neely was convicted on all counts except reckless endangerment, which the Commonwealth had withdrawn before submitting the case to the jury. Neely, No. 1044 MDA 2011 at 2. On December 17, 2010, Neely was sentenced to an aggregate term of 25 to 50 years' imprisonment, consisting of 240 to 480 months for attempted murder; 108 to 216 months for aggravated assault, to run concurrent with the attempted murder sentence; 60 to 120 months for persons not to possess a firearm, to run consecutive to the attempted murder sentence; 42 to 84 months for carrying a firearm without a license, to run concurrent with the sentence for persons not to possess; and 12 to 24 months for recklessly endangering another person, to run concurrent with the sentence for carrying a firearm without a license. Id.

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Neely appealed his convictions and sentence, alleging five trial court errors. Id. at 3. Neely challenged the sufficiency and weight of the evidence on all counts except reckless endangerment. Id. He also asserted that the trial court had erred by imposing a sentence on the aggravated assault conviction, arguing that aggravated assault merges at sentencing with attempted murder. Id. Neely likewise questioned the imposition of a sentence for reckless endangerment, a charge that had been withdrawn by the Commonwealth. Id. Lastly, Neely argued that the aggregate sentence imposed was "manifestly excessive and unreasonable." Id.

The Superior Court of Pennsylvania affirmed the trial court on all issues except Neely's challenge to the reckless endangerment sentence, which both the trial court and the Commonwealth conceded was improper. Id. at 10-11. The court vacated the reckless endangerment sentence but found no need for remand. Id. at 11 & n.6. The panel explained that because the sentence for reckless endangerment was run concurrently with Neely's sentence for carrying a firearm without a license, vacating the reckless endangerment sentence would "not upset the trial court's overall sentencing scheme." Id. at 11 n.6.

Neely timely filed a pro se petition for collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq., Pennsylvania's corollary to federal habeas corpus relief. (See Doc. 15-1 at 2-23). Neely alleged a violation of Brady v. Maryland, 373 U.S. 83 (1963), by the Commonwealth for failing to disclose exculpatory evidence, ineffective assistance of counsel during trial, and ineffective assistance of counsel at sentencing. (Doc. 15-1 at 3). PCRA counsel was

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appointed but subsequently filed a petition to withdraw, asserting that none of Neely's post-convictions claims had merit. (See id. at 26-28). Due to clerical error, this "no-merit" letter was not attached to the motion to withdraw but was filed separately the following month. (See id. at 35-42).

The PCRA court granted PCRA counsel's motion to withdraw and dismissed Neely's petition without a hearing. Commonwealth v. Neely, No. 1631 MDA 2014, 2015 WL 6750378, at *1 (Pa. Super. Ct. July 20, 2015) (nonprecedential). Neely appealed the dismissal, primarily raising issues involving PCRA counsel's withdrawal, the late-filed "no merit" letter, and related procedural errors. Id. The Superior Court rejected all of Neely's claims. Id. at *1, 4. Neely filed a petition for allowance of appeal, which the Supreme Court of Pennsylvania denied. See Commonwealth v. Neely, 140 A.3d 12 (Pa. 2016) (table).

Neely timely filed the instant Section 2254 petition, raising five claims of ineffective assistance of trial counsel. Neely acknowledges that these claims have not been presented to any state court for review. (See Doc. 16 ¶¶ 6-7). Nevertheless, he seeks to assert the unexhausted claims under the narrow exception to procedural default announced by the United States Supreme Court in Martinez v. Ryan, 566 U.S. 1 (2012). (See Doc. 1 at 11-28 ¶¶ 33-37, 53-56, 70-73, 81-84, 92-95; Doc. 16 ¶¶ 6-7). Neely's Section 2254 petition is fully briefed and ripe for disposition.

III. Standards of Review

A. Federal Habeas Corpus Review Under 28 U.S.C. § 2254

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §§ 2241-2254, mandates that petitioners demonstrate that they have

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"exhausted the remedies available in the courts of the State" before seeking federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). An exhausted claim is one that has been "fairly presented" to the state courts "by invoking one complete round of the State's established appellate review process," and which has been adjudicated on the merits. Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)); see also Johnson v. Williams, 568 U.S. 289, 302 (2013).

If a state prisoner has not fairly presented a claim to the state courts "but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play." Carpenter, 296 F.3d at 146 (citations omitted). Generally, if a prisoner has procedurally defaulted on a claim by failing to raise it in state-court proceedings, a federal habeas court will not review the merits of the claim, even one that implicates constitutional concerns. Martinez, 566 U.S. at 9 (citing Coleman v. Thompson, 501 U.S. 722, 747-48 (1991); Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)). A few limited exceptions to this rule exist.

One exception is that "[a] prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law." Id. at 10 (citing Coleman, 501 U.S. at 750). "Cause for a procedural default exists where something external to the petitioner, something that cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the State's procedural rule." Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original) (citations and internal quotation marks omitted). To establish prejudice, a petitioner must show not merely that there were errors that created a possibility of prejudice, but

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that they "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). If cause and prejudice are established, the federal court reviews the claim de novo "because the state court did not consider the claim on the merits." Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017), cert. denied sub nom. Gilmore v. Bey, 138 S. Ct. 740 (2018) (mem.) (citation omitted).

Another rare exception that will excuse a procedural default is if the petitioner can show that "failure to consider the claim will result in a fundamental 'miscarriage of justice.'" Carpenter, 296 F.3d at 146 (quoting Coleman, 501 U.S. at 750). To satisfy the "fundamental miscarriage of justice" exception, a petitioner typically will have to show actual innocence. Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007) (citation omitted).

B. Ineffective Assistance of Counsel

A collateral attack based on ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, a defendant must demonstrate that (1) counsel's representation fell below an objective level of reasonableness based on prevailing professional norms, and (2) the deficient representation was prejudicial. See id. at 687-88. The defendant bears the burden of proving both prongs. See id. at 687. Bald assertions and conclusory allegations are insufficient to entitle a defendant to federal habeas relief based on ineffective assistance of counsel. See Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010).

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To determine whether counsel has satisfied the objective standard of reasonableness under the first prong, courts must be highly deferential toward counsel's conduct. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's...

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