Williams v. Gourley

• Docket Number: CIVIL 5:22-cv-01024-JMG
• Decision Date: 29 August 2023
• Parties: KEITH WILLIAMS Petitioner, v. MICHAEL GOURLEY, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

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KEITH WILLIAMS Petitioner,
v.
MICHAEL GOURLEY, et al., Respondents.

CIVIL No. 5:22-cv-01024-JMG

United States District Court, E.D. Pennsylvania

August 29, 2023

MEMORANDUM OPINION

JOHN M. GALLAGHER, United States District Court Judge

I. OVERVIEW

Petitioner Keith Williams (“Petitioner”) filed the instant pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction in the Philadelphia County Court of Common Pleas for aggravated assault and possession of a firearm though prohibited on two grounds: That he was sentenced for the wrong offense; and that his direct appeal counsel was ineffective for failing to challenge the discretionary aspects of his sentence. Magistrate Judge Lynne A. Sitarski issued a Report and Recommendation (“R&R”) recommending that the habeas corpus claims be denied and dismissed. Petitioner has filed objections to the R&R. For the reasons set forth below, the R&R is adopted, and the objections are overruled. Petitioner's habeas petition is denied.

II. BACKGROUND

Petitioner, Keith Williams, proceeding pro se, filed the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 on January 16, 2022 (“Petition”). [ECF No. 1]. This case was referred to United States Magistrate Judge Lynne A. Sitarski on April 4, 2022 for a report and

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recommendation. [ECF No. 4]. Respondents, Michael Gourley^[1], The District Attorney of the County of Philadelphia, and the Attorney General of the State of Pennsylvania, filed a Response in Opposition to Petitioner's Writ of Habeas Corpus on December 14, 2022. [ECF No. 19]. Petitioner filed a Rebuttal-Reply to the Response to the Petition on January 24, 2023. [ECF No. 20]. On April 12, 2023, Judge Sitarski issued a Report and Recommendation (“R&R”) recommending the Petition be denied without the issuance of a certificate of appealability. [ECF No. 25]. Thereafter, Petitioner filed Objections to the Report and Recommendation on May 1, 2023 (“Objections”). [ECF No. 26].

The R&R summarizes the background of this case. See R&R at pgs. 1-6 of 19, [ECF No. 25]. Petitioner does not object to this summary, and, after review, it is adopted and incorporated herein.

In brief, on June 23, 2014, Dwayne Pierce was shot in the left knee and right leg in Philadelphia. Id. at pg. 2 of 19. Pierce was taken to a hospital, where he was interviewed by police. Id. at pg. 3 of 19. Pierce identified Petitioner as the man who shot him from a photo array. Id. After a search by the U.S. Marshall's Fugitive Task Force, Petitioner was apprehended on July 14, 2014, in Glassboro, New Jersey. Id.

Petitioner waived his right to jury trial. Id. at pg. 4 of 19. At his non-jury trial, Pierce, witnesses and several police officers offered testimony. Id. As the R&R notes, Petitioner stipulated that he was prohibited from possessing a firearm and presented no testimony in his defense. Id. The trial court acquitted Petitioner of attempted murder and convicted him of aggravated assault, possessing a firearm though prohibited, and other offenses. Id. The trial court calculated a

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sentencing guideline range of 90-108 months. Id. While the trial court found several mitigating factors were present, such as the Petitioner's age, a learning disability, and Petitioner's Post-Traumatic Stress Disorder (“PTSD”), the trial court ultimately found that these were outweighed by aggravating factors, “particularly the fact that [Petitioner] fired his gun while children were in harm's way.” Id.

Consequently, the trial court sentenced Petitioner to consecutive terms of 10-20 years' imprisonment for aggravated assault and 5-10 years' imprisonment for persons not to possess firearms, as well as five years' consecutive probation, with conditions, for possessing an instrument of crime. Id. The trial court also ordered Petitioner to serve his aggregate sentence concurrently with a term of 6-23 months' imprisonment for a separate offense of forgery. Id.

Petitioner filed a post-sentence motion for reconsideration of sentence, which the trial court denied. Id. at 4-5. On direct appeal, appellate counsel raised objections to police officers' testimony during trial but did not challenge the discretionary aspects of Petitioner's sentence. Id. at 5. The Pennsylvania Superior Court denied Petitioner's appeal on February 27, 2018. Id. The Pennsylvania Supreme Court declined Petitioner's petition for allowance of appeal on September 4, 2018. Id. Petitioner then timely filed a petition under the Pennsylvania Post Conviction Relief Act (“PCRA”), arguing his appellate counsel was ineffective in failing to challenge the discretionary aspects of the judge's sentence. Id.

On August 30, 2019, the PCRA Court issued an order denying relief. Id. Petitioner filed a notice of appeal, and on February 8, 2021, the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal. Commonwealth v. Williams, 240 A.3d 147 (Pa. 2021) (table opinion). On January 16, 2022, Petitioner filed this Petition asserting two grounds for relief.^[2]

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The R&R outlined Petitioner's grounds for relief as follows:

1. Petitioner was sentenced for aggravated assault with attempt to cause serious bodily injury whereas he was charged only with aggravated assault. See R&R at pg. 6 of 19 [ECF No. 25]

2. Petitioner's counsel on direct appeal was ineffective for not challenging the discretionary aspects of his sentence. Id.

In the R&R, the Magistrate Judge determined the first claim was procedurally defaulted. Upon review, the Magistrate Judge found the second claim did not warrant relief and recommended the claim be dismissed. Id. at pg. 18 of 19. Petitioner filed Objections to the R&R's determinations as to both claims, and argues that any default should be excused based on the ineffectiveness of counsel. See generally Objections [ECF. No. 26].

III. LEGAL STANDARD

a. Review of Report and Recommendation

When objections to a Report and Recommendation are filed under 28 U.S.C. § 636(b)(1)(C), the district court must conduct a de novo review of the portions of the report and recommendation to which the petitioner objects. 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). “District Courts, however, are not required to make any separate findings or conclusions when reviewing a Magistrate Judge's recommendation de novo under 28 U.S.C. § 636(b).” Hill v. Barnacle, 655 Fed.Appx. 142, 147 (3d Cir. 2016). In the absence

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of a specific objection, the district court is not statutorily required to review the report, under de novo or any other standard. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 152 (1985).

However, as a matter of preferred practice, district courts should “afford some level of review to dispositive legal issues raised by the report” even if they are not objected to. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.1987), writ denied 484 U.S. 837 (1987). Accordingly, this Court reviews Judge Sitarski's R&R in its entirety for plain error or manifest injustice. Harper v. Sullivan, No. 89-4272, 1991 U.S. Dist. LEXIS 2168, at *2 n.3 (E.D. Pa. Feb. 22, 1991); see also Oldrati v. Apfel, 33 F.Supp.2d 397, 399 (E.D. Pa. 1998). A district court “may accept, reject, or modify, in whole or in part, the findings and recommendations” contained in the report and recommendation. 28 U.S.C. § 636(b)(1)(C). The recommendation from the magistrate judge does not carry presumptive weight, and the authority to make a final determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 27196 S.Ct. 549 (1976).

A district court need not consider, however, “issues raised for the first time in objections to a magistrate judge's report and recommendation,” as parties are not permitted “to raise arguments or issues that were not presented to the magistrate.” Townsend v. Gilmore, No. 151475, 2017 U.S. Dist. LEXIS 37685 at *4 (E.D. Pa. Mar. 15, 2017) (quoting United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998)). Accordingly, “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). An issue/objection is deemed waived if the petitioner failed to raise it before the magistrate judge, or makes merely “a passing reference” to the issue. Simmons v. Philadelphia, 947 F.2d 1042, 1066 (3d Cir. 1991). See also See Laborers' Int'l Union of N.A. v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994); In re Nat'l Collegiate Student Loan Trs. 2003-1, 2004-1, 2004-2, 2005-1, 2005-2, 2005-3, 971 F.3d 433 (3d Cir. 2020) (“Arguments

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not presented to a magistrate judge and raised for the first time in objections to the magistrate's recommendations are deemed waived... A passing reference to an issue does not suffice to preserve it.”).

b. Review of a Petition for Habeas Corpus Under 28 U.S.C. § 2254

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the [s]tate's established appellate review process” before seeking federal habeas review. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Where a petitioner has failed to properly present their claims in the state court and no longer has an available state remedy, they have procedurally defaulted those claims. See id. at 847-48. An unexhausted or procedurally defaulted claim cannot provide the basis for federal habeas relief unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 732-33, 750 (1991) (explaining that a “habeas...