Sistrunk v. Mcginly

• Decision Date: 02 November 2017
• Docket Number: CIVIL ACTION NO. 3:16-CV-00815
• Parties: LAMARR SISTRUNK, Petitioner, v. McGINLY, SUPT. SCI-COAL TOWNSHIP, Respondent.
• Court: U.S. District Court — Middle District of Pennsylvania

LAMARR SISTRUNK, Petitioner, v. McGINLY, SUPT. SCI-COAL TOWNSHIP, Respondent.

CIVIL ACTION NO. 3:16-CV-00815

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

November 2, 2017

(MUNLEY, J.)

(MEHALCHICK, M.J.)

REPORT AND RECOMMENDATION

On May 9, 2016, the Court received and docketed a petition for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2254, originally signed and dated by the Petitioner, Lamar Sistrunk (hereinafter "Sistrunk"), on May 3, 2016. (Doc. 1). At the time of filing this petition, Sistrunk was incarcerated at SCI-Coal Township, located in Northumberland County, Pennsylvania. (Doc. 1, at 1). Sistrunk was paroled from custody during the pendency of this action and currently resides in Pennsylvania. (Doc. 18). For the following reasons, this Court respectfully recommends that the petition for habeas corpus be DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

In his petition, Sistrunk challenges his June 25, 2012 sentence in the Court of Common Pleas of York County to five to ten (5-10) years in prison after he was convicted on April 13, 2012 on charges including delivery of cocaine and possession of cocaine with intent to deliver. (Doc. 1, at 1); Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.).¹ Attorney Janan Tallo represented Sistrunk during pre-trial proceedings, and acted as stand-by counsel during Sistrunk's trial and sentencing,² while attorney Joshua Neiderhiser was appointed to represent Sistrunk on direct appeal. (Doc. 1, at 17); Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.); Commonwealth v. Sistrunk, Docket No. 1281 MDA 2012 (Pa. Super. Ct.). After post-sentence motions, attorney Neiderhiser filed a Notice of Appeal on July 9, 2012³ and was subsequently directed to file a Rule 1925(b) concise statement of matters complained of on appeal. (Doc. 14-3, at 129, 136). The statement raised the following two issues:

(1) Did the trial court commit reversible legal error when it denied Sistrunk the opportunity to cross-examine the police officer regarding Khaidjah Jameson's charges and involvement in the case?

(2) Did the trial court commit reversible legal error when it denied Sistrunk's numerous pre-trial motions?

(Doc. 14-3, at 134).

On April 16, 2013, the Pennsylvania Superior Court found that Sistrunk's first claim was without merit, and that his second claim was waived due to a vague Rule 1925(b) statement. (Doc. 14-4, at 52-65). Accordingly, the Court found that Sistrunk was not entitled to relief and affirmed his sentence. (Doc. 1, at 2, 22-25); Commonwealth v. Sistrunk, Docket No. 1281 MDA 2012 (Pa. Super. Ct.). Sistrunk did not seek allocatur in the Pennsylvania Supreme Court on direct appeal. (Doc. 1, at 2).

Upon the conclusion of direct review, Sistrunk filed a pro se petition for collateral relief under the Pennsylvania Post-Conviction Relief Act ("PCRA") in the York County Court of Common Pleas (the "PCRA Court") on December 9, 2013. (Doc. 1, at 3); Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.). The PCRA Court appointed attorney Scott McCabe as Sistrunk's PCRA counsel and gave him leave to file an amended PCRA petition on Sistrunk's behalf. (Doc. 1, at 17; Doc. 14-4, at 149-151); Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.). On April 7, 2014, McCabe filed a counseled amended PCRA petition and requested to hold an evidentiary hearing on the matter. (Doc. 14-4, at 175-179); Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.). On November 25, 2014 the PCRA Court notified Sistrunk of its intent to dismiss his petition without an evidentiary hearing (the "Notice") pursuant to Pennsylvania Rule of Criminal Procedure 907, as the issues raised therein were without merit. (Doc. 14-4, at 188). Despite being counseled, Sistrunk filed a pro se response to the Notice on December 16, 2014, (Doc. 14-5, at 9-90) and the PCRA Court subsequently denied Sistrunk's petition on December 30, 2014, reasoning that: (1) there were no genuine issues of material fact; (2)Sistrunk was not entitled to post-conviction relief as a matter of law; and (3) no purpose would be served by further proceedings. (Doc. 14-5, at 91); Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.)). Through counsel, Sistrunk sought to appeal the denial of his PCRA petition to the Superior Court of Pennsylvania on January 13, 2015.⁴ (Doc. 14-5, at 93-98); Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.). Upon the Superior Court's directive, McCabe filed Sistrunk's 1925(b) Statement of Matters Complained of on February 6, 2015. (Doc. 14-5 at 114-117); Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.). Despite being represented by McCabe, Sistrunk continued to file a number of documents pro se. Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.); Commonwealth v. Sistrunk, Docket No. 116 MDA 2015 (Pa. Super. Ct.).

As a result, on February 19, 2015 the Pennsylvania Superior Court ordered that a hearing be held pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988) in order to determine whether Sistrunk intended to knowingly waive his right to counsel. (Doc. 14-5, at 122); Commonwealth v. Sistrunk, Docket No. 116 MDA 2015 (Pa. Super. Ct.). At the Grazier hearing on March 2, 2015, the Court appointed McCabe as standby counsel for the remainder of Sistrunk's PCRA appeal, as it found that Sistrunk had "knowingly, intelligently, and voluntarily decided to represent himself." (Doc. 14-5, at 171, 174). Ultimately, while proceeding pro se, Sistrunk's PCRA appeal was dismissed by the Superior Court on July 22,2015 for failure to file a timely brief. (Doc. 14-6, at 153); Commonwealth v. Sistrunk, Docket No. 116 MDA 2015 (Pa. Super. Ct.). On January 1, 2016, Sistrunk sought allowance of appeal with the Pennsylvania Supreme Court (Doc. 14-7, at 9-140), which was denied on March 30, 2016. (Doc. 14-7, at 230); Commonwealth v. Sistrunk, Docket No. CP-67-CR-5165-2011 (York Cnty. C.C.P.); Commonwealth v. Sistrunk, Docket No. 116 MDA 2015 (Pa. Super. Ct.).

Sistrunk, proceeding pro se, signed and dated the instant federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 3, 2016. (Doc. 1). On July 5, 2016, this Court provided Sistrunk with an election form pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), directing Sistrunk to indicate whether he wished to proceed on the § 2254 petition as filed or withdraw his petition so that he could later file a single all-inclusive petition setting forth all exhausted claims. (Doc. 5). Sistrunk elected to proceed on the petition as filed. (Doc. 6). On January 11, 2017, Respondent filed an answer to Sistrunk's petition, asserting that all of Sistrunk's claims were either procedurally defaulted or without merit. (Doc. 14). Sistrunk filed a reply to Respondents' answer on February 10, 2017. (Doc. 17). Having been fully briefed, this petition is now ripe for disposition.

B. HABEAS CLAIMS PRESENTED

Sistrunk presents the following eight grounds for relief in his federal habeas petition:

(1) Violations of his constitutional rights when the Commonwealth lacked jurisdiction to prosecute, based upon an invalid search warrant and no probable cause;

(2) Denial of his constitutional right to pre-trial counsel during the preliminary proceedings in violation of the Sixth and Fourteenth Amendments;

(3) Violations of his constitutional rights when he was denied the opportunity to cross-examine and confront the Commonwealth's confidential informant at trial;

(4) Violations of his constitutional rights when the Commonwealth failed to provide certain discovery and favorable evidence;(5) Ineffective assistance of pre-trial counsel by failing to: (1) investigate the case; (2) subpoena certain documents from the commonwealth; (3) submit an amended motion to suppress evidence; and (4) provide valid legal advice;

(6) Ineffective assistance of appellate counsel by failing to ensure a complete and accurate record and raise arguments regarding the discovery and confrontation clause violations;

(7) Ineffective assistance of PCRA counsel by failing to raise all of Sistrunk's requested claims and adequately review the record; and

(8) Denial of meaningful appellate review by the Pennsylvania Superior Court for relying on an inaccurate factual record in order to make their determination that was contrary to well-established Federal Law.

(Doc. 1, at 5-13).

II. DISCUSSION

A. EXHAUSTION AND PROCEDURAL DEFAULT STANDARDS

1. Exhaustion of Available State Court Remedies

In the response to Sistrunk's habeas petition, Respondents argue that Sistrunk's first, second, third, fourth, fifth, sixth and seventh grounds for relief are not properly before this Court because the claims were either not fairly presented to the state courts or procedurally defaulted due to an adequate and independent state court rule. (Doc. 14, at 21-29). Generally, a federal district court may not address the merits of a habeas petition unless all of the claims contained in the petition have been exhausted. See 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "The exhaustion requirement is satisfied only if the petitioner can show that he fairly presented the federal claim at each level of the established state-court system for review." Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004); see also O'Sullivan, 526 U.S. at 845 ("[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . by invoking one complete round of the State's established appellate review process.").

The United States Court of Appeals for the Third Circuit notes that "'[f]air presentation' of a claim means that the petitioner 'must present a federal claim's factual...