Smith v. Superintendent Clark

• Docket Number: Civil Action 2: 18-cv-1661
• Decision Date: 21 July 2022
• Parties: GREGORY SMITH, Petitioner, v. SUPERINTENDENT CLARK, DISTRICT ATTORNEY OF ALLEGHENY COUNTY, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

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GREGORY SMITH, Petitioner, v. SUPERINTENDENT CLARK, DISTRICT ATTORNEY OF ALLEGHENY COUNTY, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

Civil Action No. 2: 18-cv-1661

United States District Court, W.D. Pennsylvania

July 21, 2022

Robert J. Colville, United States District Judge

REPORT AND RECOMMENDATION^[1]

Cynthia Reed Eddy, Chief United States Magistrate Judge

I. RECOMMENDATION

Petitioner Gregory Smith (“Smith”), is a state prisoner in the custody of the Pennsylvania Department of Corrections and currently confined at the State Correctional Institution at Albion, in Albion, Pennsylvania. He has filed the instant Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging the judgment of sentence imposed on him in the Court of Common Pleas of Allegheny County, Pennsylvania, on January 15, 2014, in criminal case CP-02-CR-0015978-2012. (ECF No. 8). For the reasons below, it is recommended that the Petition be denied and a certificate of appealability as to each claim be denied.

II. REPORT

A. Jurisdiction

This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. It permits a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). It is Smith's burden to prove that he is entitled to the writ. 28 U.S.C. § 2254(a); see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims. For example, the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (which is discussed below). But, ultimately, Smith cannot receive federal habeas relief unless he establishes that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.

B. Relevant and Procedural Background^[2]

In January 2013, Smith was charged by Criminal Information with one count of criminal homicide for the shooting death of Jacquae Pascal in the Hill District section of Pittsburgh, Pennsylvania, on July 6, 2012. On September 30, 2013, Smith appeared before the Honorable Anthony M. Mariani and proceeded to a jury trial. He was represented by Attorney Carrie L. Allman, Assistant Public Defender. The Commonwealth was represented by Attorney Christopher Avetta, Assistant District Attorney. On October 3, 2013, with the jury deadlocked, Judge Mariani declared a mistrial.

Smith was retried before a jury on January 13, 2014. At the conclusion of the two-day trial, the jury found Smith guilty of First-Degree Murder. Smith was sentenced that same day to a mandatory term of life imprisonment without parole. Attorney Allman continued to represent Smith during his second trial and on direct appeal.

The Pennsylvania Superior Court, in affirming the judgment of sentence, recounted the factual background and evidence that led to Smith's arrest and conviction as follows:

The evidence adduced at trial was based heavily on the testimony of James Upshaw. Mr. Upshaw testified that . . . he was a friend of the victim, Jacquae Pascal. Mr. Upshaw testified that, on July 6, 2012, he had made plans to meet Mr. Pascal at the Team Mozzi barbershop in the Hill District area of the City of Pittsburgh to get haircuts together. Mr Upshaw explained that July 6th was Mr. Pascal's birthday and they were going to hang out for a period of time on that day. Mr. Upshaw testified that [he] brought his four year-old son along to get a haircut. Mr. Upshaw, his son and Mr. Pascal met at the barbershop to get haircuts. When Mr. Upshaw arrived at the barbershop, there were others in the barbershop waiting to get a haircut. Most of the customers were discussing basketball. [Smith] was in the barber's chair. Mr. Upshaw testified that he had known [Smith] for a number of years.

Mr. Upshaw testified that [Smith] got his haircut and left the barbershop. Mr. Upshaw was under the impression that [Smith] left to go to his girlfriend's house. [Smith] shortly returned and remained outside the barbershop. While Mr. Upshaw and his son were waiting their turn for a haircut, Mr. Upshaw's son advised Mr. Upshaw that he was thir[s]ty and asked if he could get some water due to the hot temperatures inside the barbershop. Mr. Upshaw agreed to purchase a bottle of water for his son. Mr. Pascal indicated he would go with Mr. Upshaw and his son to get something to drink. The three of them left the barbershop and crossed the street on their way to “Juan's”, a local convenience store. As they crossed the street, Mr. Upshaw saw [Smith] come up behind the victim and shoot him multiple times with a chrome revolver. Mr. Upshaw testified he screamed at [Smith] and asked him “why would you do this, what is wrong with you?”

Immediately after the shooting, Mr. Upshaw saw [Smith] run into [his] girlfriend's residence. At that point, Mr. Uphsaw left the scene with his son and went to his mother's house. He called . . . Mr. Pascal's girlfriend and told her what happened. He did not, however, inform the police what happened at that time. Because [Smith] was not in custody, Mr. Upshaw feared for his safety and kept what he knew to himself. For some time, he did not contact the police about what occurred. He later agreed to provide details of the shooting but only after his family was placed into the witness protection program.

City of Pittsburgh Officer Matthew O'Brien responded to the scene. The shooting occurred near the intersection of Center Avenue and Kirkpatrick at . . . approximately 2:00 p.m. Upon arriving at the scene, he canvassed the area attempting to locate any witnesses to the shooting. Despite the presence of many people at the scene, nobody was willing to discuss the shooting with him. There were no bullet casings found at the scene. The absence of casings was consistent with use of a revolver to commit the shooting.

Homicide detectives were dispatched to the scene. Through the course of their investigation, they were informed that a person known on the street as “Pretty” may have been responsible for the shooting. It was learned that [Smith]'s nickname was “Pretty”. Detectives then sent out word within the police department that they were looking for [Smith].

Later in the evening, on the night of the shooting, Pittsburgh Police Officers pulled over a vehicle in the South Side section of the City of Pittsburgh that was involved in a hit and run. [Smith] was inside the vehicle when the responding officers stopped the vehicle. When the officers identified [Smith], they contacted homicide detectives to advise that they had [Smith] in custody.

Homicide detective Thomas Leheny interviewed [Smith] on the night of the shooting. Detective Leheny informed [Smith] that he did not have to speak with the detectives. Detective Leheny did advise [Smith] that he was not under arrest. [Smith] agreed to speak with Detective Leheny. [Smith] told Detective Leheny that prior to the shooting he was with a girl in the West End of Pittsburgh at the time of the shooting. [Smith], however, could not provide a name or phone number for the girl nor could he provide an address for the girl.

[Smith] then told Detective Leheny that he was driving through the Hill District talking on his cell phone when the murder occurred. Detective Leheny had not advised [Smith] where the murder occurred. [Smith] verbally consented to a gunshot residue test of his clothing. Detectives obtained [Smith]'s t-shirt for processing. Testing confirmed that gunshot residue was present on the front of the t-shirt. After this was done, Detective Leheny continued to speak with [Smith]. At this point, [Smith] put his head down and told Detective Leheny that he “wasn't right in the head” and he was prone to sudden bursts of anger since he was a kid. [Smith] told Detective Leheny that he didn't want to talk anymore and asked if he was free to leave. [Smith] then left the police station.

An arrest warrant was issued for [Smith] on August 30, 2012. [Smith] could not be located. Officer Matthew McCarthy testified that he was on patrol on November 7, 2013 when he conducted a traffic stop of a vehicle driven by Johnny Rutherford for speeding. Once the vehicle was pulled over, the front seat passenger, [Smith]'s brother, quickly exited the vehicle. [Smith], who was the back seat passenger, attempted to get out of the vehicle by climbing over the front passenger seat. Officers quickly secured the vehicle. Upon being asked for identification, [Smith] gave a false name and date of birth. He provided an age that was not possible based on the date of birth he provided. Because of his false answers, he was placed into custody. [Smith] was subsequently identified and arrested for the homicide of Mr. Pascal.

Amber Traylor testified that she was driving in the area. As she was driving on Kirkpatrick Street, she heard loud noises. She observed the shooting in her rearview mirror. She saw three people standing outside the barbershop and she saw another person shooting at a person lying on the street. She was not able to provide detailed descriptions of any of the persons she observed at the scene of the shooting.

The medical examiner testified in this case that the cause of Mr. Pascal's death was multiple gunshot wounds to his trunk and extremities. The manner of death was homicide. Mr. Pascal suffered six total gunshot wounds. Three of the gunshot wounds were to his back. The first wound entered the middle of his back and pierced his pulmonary vein and the heart. Mr. Pascal

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