Phomma v. Delbalso, CIVIL ACTION NO. 17-499
| Decision Date | 15 February 2018 |
| Docket Number | CIVIL ACTION NO. 17-499 |
| Parties | KHAMPHOY PHOMMA, Petitioner, v. THERESA DELBALSO, et al., Respondent. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Before the Court is the pro se Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and a Request for an Immediate Stay and Abeyance of the Proceedings (Doc. No. 12) filed by Khamphoy Phomma ("Petitioner"), a prisoner incarcerated at the State Correctional Institution located in Frackville, Pennsylvania. (Doc. No. 10 at 1.) On August 14, 2017, United States Magistrate Judge Thomas J. Rueter issued a Report and Recommendation ("R&R"), recommending that the Petition be denied and that a certificate of appealability not be issued. (Doc. No. 10.) On September 11, 2017, Petitioner filed the Request for an Immediate Stay and Abeyance of the Proceedings. (Doc. No. 12.) For reasons stated below, the Court will approve and adopt the R&R (Doc. No. 10) and deny Petitioner's Request for an Immediate Stay and Abeyance of the Proceedings (Doc No. 12).1
On June 7, 2007, Petitioner was convicted in state court of third-degree murder and possessing an instrument of crime. Commonwealth v. Phomma, Civ. A. No. 1713 EDA 2014, 2015 WL 7078617, at *3 (Pa. Super. Ct. June 10, 2015). On August 9, 2007, the trial court sentenced Petitioner to twenty to forty years' imprisonment. Id. On December 9, 2010, the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Phomma, 23 A.3d 574 (Table), Civ. A. No. 122 EDA 2010, slip op. at 5-6 (Pa. Super. Ct. Dec. 9, 2010). Petitioner filed a Petition for allowance of appeal in the Supreme Court of Pennsylvania, which was denied on March 29, 2011. Commonwealth v. Phomma, 19 A.3d 1050 (Pa. 2011).
On December 19, 2011, Petitioner filed a pro se Petition pursuant to Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. The PCRA court appointed counsel for Petitioner who filed an amended Petition alleging that prior counsel was ineffective for failing to preserve a challenge to the weight of evidence. On May 19, 2014, the PCRA court denied the amended Petition without holding a hearing. Petitioner subsequently filed an appeal raising one issue: "Did the PCRA Court err when it dismissed [Phomma's] Amended PCRA Petition without a Hearing even though [Phomma] properly pled and would have been able to prove that he was entitled to relief?" Phomma, 2015 WL 7078617, at *3 (quotation omitted). On June 10, 2015, the Superior Court of Pennsylvania affirmed the decision of the PCRA court. Id. Petitioner filed a Petition for allowance of appeal to the Supreme Court of Pennsylvania, which the court denied on February 1, 2016. Commonwealth v. Phomma, 131 A.3d 491 (Table), No. 429 EAL 2015 (Pa. Feb. 1, 2016).
On February 2, 2017, Petitioner filed the instant pro se Petition for Writ of Habeas Corpus (Doc. No. 1), raising the following three issues:
(Doc. No. 1.)
On August 14, 2017, Magistrate Judge Rueter issued an R&R recommending that Petitioner's claims be denied. (Doc. No. 10 at 21.) On September 11, 2017, Petitioner filed the Request for an Immediate Stay and Abeyance of the Proceedings. (Doc. No. 12.) In his Request, Petitioner provided two reasons for his Request for an Immediate Stay and Abeyance of the Proceedings. First, Petitioner stated that he needed additional time to develop a meaningful response to the R&R. (Id. at 1-2.) Petitioner cited his lack of legal expertise and limited access to the Institutional Law Library as justifications for this request. (Id. at 1.) Second, Petitioner stated that he needed an Immediate Stay and Abeyance of the Proceedings to allow him to pursue unexhausted claims in state court. (Id. at 2.) For the following reasons, the Court will approve and adopt the R&R (Doc. No. 10) and will deny Petitioner's Request for an Immediate Stay and Abeyance of the Proceedings (Doc. No. 12).
Under 28 U.S.C. § 636(b)(1)(B) and the local rules of this Court, a district judge is permitted to designate a magistrate judge to make proposed findings and recommendations on petitions for post-conviction relief. See 28 U.S.C. § 363(b)(1)(B); E.D. Pa. Civ. R. 72.1. Any party may file objections in response to the magistrate judge's report and recommendation. Id. at§ 363(b)(1)(C). Whether or not an objection is made, a district judge Id. "[I]t must be assumed that the normal practice of the district judge is to give some reasoned consideration to the magistrate's report before adopting it as the decision of the court." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987); see also 28 U.S.C. § 636(b).
As previously noted, Petitioner raises three issues in his Petition for Writ of Habeas Co. (Doc. No. 1.) First, Petitioner argues that the PCRA court erred when it denied him post-conviction relief without a hearing on his claim of ineffective assistance of counsel for failing to challenge the weight of the evidence. (Id. at 5.) Second, Petitioner claims that trial counsel was ineffective for failing to compel the attendance of eyewitnesses at the trial to provide exculpatory testimony. (Id. at 8.) Third, Petitioner asserts that he should be entitled to access the physical evidence recovered by police for DNA testing. (Id. at 10.)
In his first claim, Petitioner argues that the PCRA court erred when it denied him post-conviction relief without a hearing on his claim of ineffective assistance of trial counsel for failing to challenge the weight of the evidence. (Id. at 5.) He asserts that the weight of the evidence did not support his conviction and that his trial counsel was ineffective for failing to raise this issue on appeal. (Id.)
To determine whether a verdict is against the weight of the evidence, a reviewing court must find that the "jury's verdict is so contrary to the evidence as to shock one's sense ofjustice." Commonwealth v. Vandivner, 962 A.2d 1170, 1177 (Pa. 2009) (citing Commonwealth v. Cousar, 928 A.2d 1025, 1036 (Pa. 2007)). Upon consideration of the state courts' detailed explanations, which were strongly supported by the record, the R&R appropriately concluded that Petitioner's claim that the verdict was against the weight of the evidence has no merit. Petitioner told police that he advised his girlfriend that he stabbed the victim over money and that after doing so he took money before fleeing. (Doc. No. 10 at 14.) In addition, other evidence—including Petitioner's admission that he entered the apartment to commit a robbery, that after the incident he made a phone call to police blaming four black men for the killing, and that he attempted to dispose of his bloody clothes in a sewer—sufficiently supported the fact finder's determination of his guilt. (Id.) Accordingly, the Court adopts the R&R's finding that the trial court's verdict did not shock one's sense of justice simply because Petitioner disagreed with the reasonable inferences drawn by the trial court sitting as the fact finder.
The Court accepts and adopts the R&R's determination that Petitioner's second habeas claim is procedurally defaulted. Petitioner's second claim for habeas corpus relief asserts that his trial counsel was ineffective for failing to compel the attendance of eyewitnesses to provide exculpatory testimony at his trial. (Doc. No. 1 at 8.)
Petitioner's claim is procedurally defaulted because he is, and will remain, unable to satisfy the state court exhaustion requirement for federal habeas corpus review. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847 (1999) (). Under 28 U.S.C. § 2254, a habeas petitioner must exhaust all available state court remedies before a federal court may entertain apetition for habeas relief. Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012). Procedural default occurs when a petitioner cannot obtain state court review of his claims because of noncompliance with state procedural rules. Martinez v. Ryan, 566 U.S. 1, 9 (2012).
Here, Petitioner's claim of ineffective assistance of trial counsel is procedurally defaulted because the claim is unexhausted and expired in state court. (Doc. No. 10 at 16). Petitioner's claim is unexhausted because he did not raise it in state court (Id.), and Petitioner's claim is expired because the time to raise the claim has lapsed, see 42 Pa. C.S.A. § 9545.
Even if Petitioner's claim of ineffective assistance of counsel was not procedurally defaulted, it also fails because it is meritless. The Supreme Court has held that to succeed on a claim of ineffective assistance of counsel, a petitioner must satisfy a two-prong test, showing that: (1) ...
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