Petitioner
Dennis Lee Walls (“Walls") files the instant
petition for writ of habeas corpus pursuant to 28 U.S.C
§ 2254, challenging a 2015 conviction and sentence
imposed in the Court of Common Pleas of Adams County in
criminal case CP-01 -CR-0000288-2015. (Doc. 1).
For the
reasons set forth below, the petition for writ of habeas
corpus, which is governed by the Antiterrorism and Effective
Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214
April 24,1996 (“AEDPA”), will be denied.
II.
State Court Factual and Procedural
Background
The
relevant facts and procedural history are extracted from the
Superior Court of Pennsylvania's December 28, 2018
decision affirming the denial of Walls' petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, and are as follows:
In December of 2015, Appellant was tried before a jury for
various offenses, including rape. The testimony of the victim
in this case, J.D., can be summarized as follows. J.D.
testified that she was in a relationship with Appellant for
approximately two years, but they had broken up on March 2,
2015. N.T. Trial, 12/8/15, at 36,37. Nevertheless, Appellant
was still living with J.D. on March 7th of that year.
Id. at 37. That day, J.D. went to work and when she
got home, she lay in bed with Appellant, who was watching a
movie. Id. at 38, 39. J.D. testified that Appellant
began rubbing her stomach and she told him to stop.
Id. at 39. At that point, Appellant got up and
walked out of the room, and J.D. went to sleep. Id.
J.D. claimed that she awoke a short time later and saw
Appellant “sitting ... oddly” on the bed like he
was “lost.” Id. at 40. J.D. asked
Appellant what he was doing, and Appellant “got angry.
He leaned down and came up with a gun[,]” which he
“put... to the side of [J.D.'s] head."
Id. Appellant cocked the gun and repeatedly said,
“didn't I tell you not to fuck with me[?]”
Id. at 42. J.D. testified that she was terrified for
her life. Id. Appellant then “told [J.D.] that
[she] had a choice to be with him or to be dead[,j” at
which point she “started to cry, but [she] told him
that [she] would be with him.” Id. at 43.
Appellant then “put the gun in his own mouth and said
that he was going to kill himself.” Id. J.D.
tried to calm Appellant down, but she “started crying
bad.” Id. at 44. Appellant put the gun on his
lap and tried to comfort J.D. Id. J.D. claimed that
Appellant eventually put the gun on the floor, hugged her,
and told her that “his boys” - whom J.D. believed
meant members of a gang to which Appellant belonged -
“knew who [J.D.] was, where [she] lived, who [her] son
was, where [her] parents lived, and that if [she] told
someone, that they'd come after [her], that they were
going to be calling and checking in on him and if he
didn't answer his phone, then they would know [J.D.]
called the cops and they'd come after [her].”
Id. at 45.
J.D. testified that Appellant then moved the gun underneath
the nightstand about three to four feet away from her and
told her “that he wanted to have sex.”
Id. at 48. J.D. told Appellant that she did not want
to have sex, but he continued his advances by “trying
to take her pants off.” Id. at 49. J.D. then
“told [Appellant] to just get it over with.”
Id. J.D. testified that she relented because she
“was scared,” based on Appellant's having put
a gun to her head, and she was “not going to fight
him.” Id. at 50. Appellant and J.D. had
intercourse, during which J.D. “had [her] hands over
[her] eyes crying.” Id. at 51. J.D. claimed
that she did not consent to the sexual encounter with
Appellant. Id. at 52. After intercourse, J.D.
testified that Appellant received “two phone
calls” that “[h]e said ... were from his
boys.” Id. at 54. Appellant told J.D. that he
was “going to meet one of them to give the gun
back” at a Sheetz gas station. Id. at 54, 55.
Appellant “got the gun and put it in a plastic
bag,” after which he took J.D.'s phone “so
[she] wouldn't try anything stupid like calling the
police.” Id. at 55.
The next day at work, J.D. told a coworker, Brittany Eline,
about the incident, and the coworker called the police.
Id. at 61. Littlestown Police Officer Gary Gearhart
responded to the report. Id. J.D. gave Officer
Gearhart consent to search a truck that was owned by both
J.D. and Appellant, and in the truck, the officer
“found the gun in the plastic bag under the
driver's seat....” Id. at 64,85. J.D.
testified that it was the same gun that Appellant had pointed
at her head. Id. Upon further inspection of the gun,
Officer Gearhart determined that it “was more of a toy
gun” that would “shoot little white BBs
out.” Id. at 86. However, the officer
testified that the gun looked like a real handgun.
Id.
Additionally, on March 9, 2015, J.D. reported to police that
she was “clearing out possessions in [her] apartment
and in the nightstand drawer in a common used bedroom she had
discovered a small cloth bag that she thought may have
contained drug paraphernalia and some controlled
substance.” Id. at 95. J.D. informed police
that the drawer where she discovered the contraband was
exclusively used by Appellant. Id. at 96. Police
ultimately retrieved the bag from J.D., and later testing of
several “clear capsules” discovered in the bag
revealed that they “contained Fentanyl, a Schedule II
controlled substance...." Id. at 97, 104. Based
on these facts, Appellant was arrested and charged with
various offenses.
On December 8, 2015, Appellant's jury trial was
conducted. At the close thereof, Appellant was convicted of
rape by forcible compulsion, 18 Pa.C.S. § 3121(a)(1);
sexual assault, 18 Pa.C.S. § 3124.1; intimidation of a
witness, 18 Pa.C.S. § 4952(a)(1); terroristic threats,
18 Pa.C.S. § 2706(a)(1); indecent assault, 18 Pa.C.S.
§ 3126(a)(1); and simple assault, 18 Pa.C.S. §
2701(a)(3)[1]Appellant was sentenced on April 18, 2016,
to an aggregate term of 16 to 34 years' incarceration.
Appellant did not file a direct appeal. Instead, on April 13,
2017, he filed a timely, counseled PCRA petition raising
various claims of ineffective assistance of counsel
(IAC).[2] On October 23, 2017, the PCRA court
conducted an
evidentiary hearing. On April 4, 2018, the court issued an
order and opinion denying Appellant's petition. Appellant
filed a timely notice of appeal, however he failed to timely
comply with the PCRA court's subsequent order to file a
Pa.R.A.P. 1925(b) statement. Accordingly, on May 30, 2018,
the PCRA court issued a Rule 1925(a) opinion concluding that
Appellant's issues were waived but noting that its
reasons for denying his petition were fully set forth in its
April 4, 2018 opinion. See Trial Court Opinion, 5/30/18, at
1.
On June 7, 2018, Appellant filed a “nunc pro
tunc" Rule 1925(b) statement. Therein, he claimed
that he never received the order directing him to file a
concise statement. He then reiterated the same IAC claims
raised in his PCRA petition, and which were addressed by the
court in its April 4, 2018 opinion. Given this record, we
decline to remand under Rule 1925(c)(3); instead, we will
address the merits of Appellant's claims. See
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.
Super. 2009) (holding that, “if there has been an
untimely filing, this Court may decide the appeal on the
merits if the trial court had adequate opportunity to prepare
an opinion addressing the issues being raised on
appeal”).
Herein, while Appellant sets forth one IAC issue in his
Statement of the Questions,[3] in his Argument section, he
divides that issue into fourteen subclaims of trial
counsel's ineffectiveness. Initially, “we note that
it has been held that when an appellant raises an
extraordinary number of issues on appeal, as in this case, a
presumption arises that there is no merit to any of
them.” Estate of Lakatosh, 656 A.2d 1378,1380
n.1 (Pa. Super. 1995). “Appellate advocacy is measured
by effectiveness, not loquaciousness." Id.
(Doc. 23-4 at 142, Commonwealth v. Walls, 766 MDA
2018 at 1-6 (Pa. Super. Dec. 28, 2018) (unpublished
memorandum). On December 28, 2018, the Superior Court,
adopting the PCRA court's decision as their own, affirmed
the denial of Walls' PCRA petition. Id. On
January 24, 2019 Walls filed a timely petition for allowance
of appeal (Doc. 23-4 at 99) to the Pennsylvania Supreme
Court, which was denied on July 8, 2019. (Doc. 23-4 at 171,
Commonwealth v. Walls, 44 MAL 2019 (Pa. 2019).
Thereafter,
on July 24,2019, Walls filed the instant timely petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. In
his petition, Walls raises the following four ineffective
assistance of counsel claims for relief: (1) ineffective
assistance of trial counsel for failure to present several
witnesses at his trial regarding an alleged motivation for
the victim to falsify testimony, (2) ineffective assistance
of trial counsel for failure to present several character
witnesses at trial concerning his reputation for non-violence
and concerning the victim's character for truthfulness,
(3) ineffective assistance of trial counsel for failure to
move for dismissal due an insufficiency of the evidence, and
(4) ineffective assistance of trial counsel for failure to
argue to the jury or request an instruction regarding an
adverse inference to be drawn against the victim's
testimony due an alleged delay in reporting the rape. (Doc.
1).
