Pratt v. Marsh, 2:19-cv-00416

• Decision Date: 28 May 2021
• Docket Number: No. 2:19-cv-00416,2:19-cv-00416
• Parties: JALIL PRATT, Petitioner, v. DR. ROBERT MARSH, SUPERINTENDENT, SCI BENNER TOWNSHIP, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

JALIL PRATT, Petitioner, v. DR. ROBERT MARSH, SUPERINTENDENT, SCI BENNER TOWNSHIP,THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA,and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

No. 2:19-cv-00416

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

May 28, 2021

OPINION

Report and Recommendation, ECF No. 27 - APPROVED and ADOPTED

Habeas Corpus Petition, ECF No. 2 - DENIED and DISMISSED

Joseph F. Leeson, Jr. United States District Judge

I. INTRODUCTION

In this habeas corpus proceeding, which has been commenced pursuant to 28 U.S.C. § 2254, pro se Petitioner Jalail Pratt challenges the constitutionality of his 2009 conviction in state court of second-degree murder, conspiracy, and robbery. Upon referral from this Court, Magistrate Judge Lynne A. Sitarski has issued a Report and Recommendation ("R&R") finding that Pratt's multiple claims for habeas relief are without merit and recommending that his habeas petition be denied and dismissed. Pratt has filed timely objections to the R&R.

After a review of Pratt's habeas petition, the R&R, and the objections thereto, and for the reasons set forth below, this Court overrules the objections, approves and adopts the R&R in its entirety, and denies and dismisses the habeas petition without holding an evidentiary hearing or issuing a certificate of appealability.

II. RELEVANT BACKGROUND¹

A. Pratt's charges, conviction, and state court challenges

The facts underlying Pratt's conviction were summarized by the Pennsylvania Superior Court in its denial of his appeal for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), which was itself a summary of the Superior Court's denial of Pratt's direct appeal. The Superior Court recounted the following:

On December 23, 2006 at approximately 11:00 p.m., co-Defendant Maurice Smith told his girlfriend, Melissa Thompson, via cell phone to call George's Pizza in Philadelphia, PA and place an order for delivery. Melissa Thompson told George's Pizza to deliver the food to a specific address in Philadelphia, PA and then called Smith back via Pratt's cell phone to tell him that she had done so. Pratt and Smith then waited for the delivery man to arrive.

At 11:44 p.m., William Heron ("Heron") heard a knock on his door where Melissa Thompson requested the delivery be made. Heron looked out the window to see a pizza delivery man, later identified as Michael Orlando, standing outside the door. Heron answered the door to tell Michael Orlando, hereinafter referred to as Orlando, he must have the wrong address because he didn't order pizza. Heron then saw two black males approach from behind Orlando. Pratt pointed a gun at Orlando while Smith demanded that Orlando 'move it, move it.' Heron immediately shut the door and dialed 911 for emergency police services. While on the phone with the police, Heron heard banging and crying at the front door, but was too afraid to open the door. The police arrived at his door within minutes, discovered Orlando shot in the abdomen, and all suspects had fled the scene. Orlando was taken to Frankford Hospital, Torresdale division, where he was pronounced dead at 12:30 a.m. on December 24, 2006 due to a single gunshot wound to the abdomen.

Pratt, Smith, and Melissa Thompson ("Thompson") were subsequently arrested and charged with numerous crimes related to the events set forth above.

Commonwealth v. Pratt, No. 2291 EDA 2016, 2017 WL 5593775, at *1 (Pa. Super. Ct. Nov. 21, 2017) (quoting Commonwealth v. Pratt, No. 672 EDA 2010, at 1-2 (Pa. Super. Ct., Dec. 2, 2010),² appeal denied, 19 A.3d 1050 (Pa. 2011)).

Despite Pratt's efforts to have their trials severed, he and Smith were tried as co-defendants. Pratt, No. 672 EDA 2010, at 2.³ In his opening remarks to the jury, Smith's counsel stated that Smith intended to take the stand and testify that he and Pratt decided to rob a pizza delivery man, that Smith enlisted the help of his former girlfriend to set up a fake delivery, that Smith sat in the car while Pratt robbed the delivery man, that Pratt had a gun with him when he robbed the victim, and that it was Pratt alone who shot the victim. Id. at 4. After opening statements, Pratt's counsel renewed his motion for severance, arguing the defendants' defenses were grossly antagonistic. Id. at 5. The trial court denied the motion, and the Commonwealth proceeded with its case. Id.

After the Commonwealth presented its case, Smith changed his mind and informed counsel he no longer wished to testify. Id. at 3, 6, 8. Pratt's counsel moved for a mistrial, which the trial court denied on the grounds that the jury was instructed multiple times that statements made by counsel are not evidence, and there was no indication that the jury would credit as evidence the opening statement of Smith's counsel as to what Smith would testify to, this being the basis of the motion. Id.

Pratt put forth an alibi defense, calling two witnesses to testify that Pratt was in their house at the time the murder was supposed to have occurred. Id. at 3. In addition, Thompson testified that she did not meet Pratt until the day after the robbery. Pratt, 2017 WL 5593775, at *1. In making his closing arguments, Pratt's trial counsel argued that Thompson's testimony, in conjunction with other testimony, raised a reasonable doubt as to whether Pratt was involved in the killing. Id.

On June 29, 2009, Pratt was convicted of second-degree murder, conspiracy, and burglary. Id. On September 17, 2009, he was sentenced to life imprisonment without parole on the murder conviction, and a concurrent sentence of ten to twenty years' imprisonment for the remaining convictions. Id.

Pratt appealed his conviction, raising four grounds for relief. Specifically, Pratt claimed (1) that the trial court erred in denying his motion to sever his trial from Smith's, (2) that the trial court erred in denying his motion for a mistrial, (3) that the trial court erred in sustaining an objection by the Commonwealth to his counsel's questioning of a witness, (4) that the trial court erred in denying his motion to suppress evidence found in his mother's car, and (5) that three instances of prosecutorial misconduct deprived him of his due process rights. See generally id.

The Superior Court affirmed Pratt's judgment of sentence. See generally id. As to his first ground for relief, the Superior Court found the trial court erred in denying Pratt's motion for severance, as his and Smith's defenses were sufficiently antagonistic; however it concluded that the error was harmless as Smith did not end up testifying or presenting any testimony in support of his defense. See id. at 5-7. As to his second ground for relief, the Superior Court found no error in denial of the mistrial motion for essentially the same reasons stated by the trial court: the court's instructions to the jury that statements by counsel do not constitute evidence, and thepresumption that juries follow instructions of the court, were sufficient grounds to support denial of the motion. See id. at 9-12. As to his third ground for relief, the Superior Court concluded that the subject matter of any testimony Pratt's counsel wished to elicit from a detective witness regarding Thompson's participation in a similar robbery without Pratt's participation, was covered by Thompson in her testimony in response to Pratt's counsel's cross-examination, and thus would have been cumulative. See id. at 12-14. The Superior Court next found that Pratt had failed to raise his fourth ground for relief - his challenge to the trial court's denial of his motion to suppress - in his Pennsylvania Rule of Appellate Procedure 1925(b) statement, and that this argument was waived. See id. at 15. Finally, the Superior Court found that Pratt's arguments in support of his fifth ground for relief were either not preserved for appellate review and therefore waived, or were waived through a failure to develop supporting argument in briefing. See id. at 16-17. The Pennsylvania Supreme Court subsequently denied Pratt's petition for allowance of appeal. See Commonwealth v. Pratt, 19 A.3d 1050 (Pa. 2011).

Pratt next petitioned for PCRA relief. In its November 21, 2017 decision on Pratt's appeal of the PCRA court's denial of his PCRA petition, the Superior Court recounted the facts relevant to Pratt's petition and its resolution. In this regard, the Superior Court stated as follows:

Appellant, acting pro se, timely filed his first PCRA petition. The court appointed counsel, who filed an amended PCRA petition. Attached to the petition was trial counsel's signed affidavit averring that he forgot to investigate and present character witnesses. The PCRA court held an evidentiary hearing at which Appellant called witnesses who testified that had they been called at trial, they would have testified to Appellant's reputation in the community as being a non-violent person. The Commonwealth cross-examined them with Appellant's prior criminal record.

At the hearing, Appellant's trial counsel testified as follows:

At the time of his signature [on the affidavit, Appellant's trial counsel] believed the averments were accurate. (N.T. 06/15/2016 at 36). However, upon further recollection, [trial counsel] testified thestatements were not accurate because he was aware of [Appellant's] prior record and more importantly, he recalled speaking with the prosecutor about potential cross examination and impeachment of the character witnesses. (N.T. 06/15/2016 at 36-39).

PCRA Ct. Op., 11/4/16, at 6 (footnote omitted). Trial counsel also testified that he did not request a corrupt and polluted source instruction for Thompson because, in his view, her testimony exculpated Appellant and he did not want to undermine her testimony before the jury. N.T. PCRA Hr'g, 6/15/16, at 40-41. Following the hearing, the trial court denied Appellant's petition and Appellant timely appealed.

Appellant raises the following issues:

Whether trial counsel was ineffective for failing

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