John Moore v. David DiGuglielmoJohn Moore v. David DiGuglielmo
Case Information
*1 Before: RENDELL, FISHER, and CHAGARES, Circuit Judges.
(Filed: July 19, 2012)
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OPINION
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CHAGARES, Circuit Judge.
John Moore appeals the District Court‘s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Moore avers that his trial counsel in Pennsylvania state court *2 provided ineffective assistance of counsel by failing to investigate properly a potential witness, Lapricia Jessup. We conclude that Moore‘s ineffective assistance of counsel claim is meritless and we will affirm the order of the District Court.
I. We write solely for the parties‘ benefit and, as such, we set forth only the facts essential to our disposition. This habeas petition arose out of an incident on July 7, 1996. On that day, Sam Cedano and two friends were walking down the street in Philadelphia when two men approached them and proceeded to beat and rob them. As Cedano attempted to resist, he was shot in the back and fatally wounded. Another victim was shot in the back and permanently injured. Moore and his co-defendant, James Lamb, were arrested and charged with, among other things, the murder of Cedano. Lamb pled guilty to third-degree murder and testified at Moore‘s trial that Moore shot Cedano. On May 9, 2000, after a bench trial in the Pennsylvania Court of Common Pleas, Moore was convicted of second-degree murder, three counts of robbery, two counts of aggravated assault, possession of an instrument of a crime, and criminal conspiracy.
The post-conviction procedural history is lengthy. The Pennsylvania Superior Court affirmed Moore‘s conviction on direct appeal and the Pennsylvania Supreme Court denied allowance of appeal on November 21, 2001. On June 10, 2002, Moore filed a pro se Pennsylvania Post Conviction Relief Act (―PCRA‖) petition, arguing that his trial counsel, Nino Tinari, was ineffective for various reasons. In July 2002, the Court of Common Pleas appointed Barbara McDermott to represent Moore in his PCRA proceedings.
Attorney McDermott subsequently filed a letter pursuant to Commonwealth v.
Finley,
In response to the Finley letter, the Court of Common Pleas issued a notice of intent to deny Moore‘s PCRA petition. Moore responded, arguing that Attorney McDermott was ineffective for refusing to present his ineffective assistance of counsel claim in a PCRA petition. Over Moore‘s objection, the Court of Common Pleas denied the PCRA petition on December 20, 2002. Moore appealed that denial, maintaining, *4 inter alia, that Attorney McDermott was ineffective for failing to obtain an affidavit from Jessup or subpoenaing her to testify and for refusing to present his ineffective assistance of counsel claim in his PCRA petition. On May 12, 2003, the Court of Common Pleas issued an opinion explaining that it denied Moore‘s petition because Moore did not meet his burden of showing that Attorney Tinari was ineffective for failing to investigate Jessup as a witness. On August 27, 2004, the Superior Court affirmed the denial of Moore‘s PCRA petition. The Superior Court explained that Attorney McDermott was not ineffective because Moore had failed to allege facts that would support a finding that Attorney Tinari was ineffective.
Meanwhile, on May 3, 2004, Moore filed a motion for a new trial based on newly discovered evidence. He submitted an affidavit from Lamb attesting that he swore falsely at Moore‘s trial that Moore was with him during the robbery. The Court of Common Pleas treated the motion as a second PCRA petition and denied it because Moore‘s first PCRA petition was still on appeal at that time.
On May 17, 2005, Moore filed a third PCRA petition. Along with a number of other exhibits, he submitted a notarized written statement from Jessup, dated September 22, 2005, stating that no lawyer questioned her on Moore‘s behalf at the trial phase, that she attended Moore‘s trial, and that she was willing to testify. Finally, Moore included letters he sent to Attorney Tinari on March 22, April 10, and October 14, 1999, advising him that Jessup could testify. He attached the receipts for certified mail indicating that the letters had reached Attorney Tinari‘s office.
The Court of Common Pleas appointed Attorney Barnaby C. Wittels as counsel for Moore. In February 2006, Attorney Wittels filed an amended, and then second amended third PCRA petition premised solely on Lamb‘s recantation of his trial testimony. The Court of Common Pleas denied the petition because it found that the new evidence was not credible and, therefore, Moore could not avail himself of the after- discovered evidence exception to the PCRA statute of limitations. Once again, the Superior Court affirmed the denial of Moore‘s PCRA petition, agreeing that Lamb‘s affidavit was not credible.
On June 10, 2005, while his third PCRA petition was still pending, Moore filed the habeas petition that is the subject of this appeal. The District Court stayed the petition until Moore‘s third PCRA petition was fully adjudicated. On September 26, 2008, the District Court lifted the stay and appointed Attorney Wittels as counsel. Attorney Wittels filed a supplemental habeas corpus petition on March 4, 2008, seeking an evidentiary hearing and raising claims for, inter alia, ineffective assistance of trial and PCRA counsel based on the failure to present Jessup‘s alleged testimony.
On October 20, 2008, a Magistrate Judge recommended that the District Court deny the petition without an evidentiary hearing because the ineffective assistance of trial counsel claim was procedurally defaulted and that, even if it was not, Moore could not prevail because he had not satisfied the elements of a claim for ineffective assistance of trial counsel. With respect to Attorney McDermott‘s effectiveness, the Magistrate Judge noted that there is no constitutional right to counsel in a post-conviction proceeding and, hence, there can be no claim for constitutionally ineffective assistance of PCRA counsel. *6 The Magistrate Judge went on to conclude that Moore failed to demonstrate prejudice as required for his ineffective assistance of counsel claims because factual findings by the Court of Common Pleas — that Jessup was not willing to testify, did not speak with defense counsel, and if called would have given highly prejudicial testimony — were entitled to a presumption of correctness that he had not rebutted. The Magistrate Judge opined that Moore‘s other grounds for relief were also meritless.
The District Court adopted the Magistrate Judge‘s Report and Recommendation on March 27, 2009 over Moore‘s objection. Moore filed a motion for reconsideration and a notice of appeal shortly thereafter. This Court stayed the appeal until the District Court adjudicated the motion for reconsideration. In response to the motion for reconsideration, the District Court corrected an error in the Report and Recommendation with respect to exhaustion — clarifying that Moore had presented his ineffective assistance of trial counsel claim to the PCRA court, but not the Superior Court. Then, on September 24, 2010, this Court issued a certificate of appealability with respect to Moore‘s claim that his trial counsel rendered ineffective assistance by failing to interview Jessup or to call her as a witness at trial. Thus, that is the sole issue before us in this appeal.
II.
The District Court had jurisdiction over this habeas petition pursuant to 28 U.S.C.
§ 2254 and we have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
Because the District Court ruled on the habeas petition without holding an evidentiary
hearing, our review is de novo. Blystone v. Horn,
A.
The District Court held that Moore‘s ineffective assistance of trial counsel claim
was inexcusably procedurally defaulted. On appeal, however, Moore waived the
procedural default issue by failing to discuss it in his opening brief, or even his reply
brief. Skretvedt v. E.I. DuPont DeNemours,
This Court may not grant a petition for a writ of habeas corpus unless the
petitioner ―has exhausted the remedies available in the courts of the State.‖ 28 U.S.C.
§ 2254(b)(1)(A). ―In order for a claim to be exhausted, it must be ‗fairly presented‘ to
the state courts ‗by invoking one complete round of the State‘s established appellate
review process.‘‖ Carpenter v. Vaughn,
The question of exhaustion in this case is thorny, but we ultimately conclude that the Pennsylvania Superior Court adjudicated Moore‘s ineffective assistance of trial counsel claim on the merits such that we can review its holding. Technically, Moore failed to exhaust his ineffective assistance of trial counsel claim by failing to request new counsel and raise it on direct appeal. He (and his counsel) compounded that error by failing to plead that claim in his first or his third PCRA petitions. Moore did, however, discuss Jessup‘s purported testimony at length in his response to the notice by the Court of Common Pleas of its intention to deny his first PCRA petition. In response to Moore‘s contentions, both the Court of Common Pleas and the Superior Court analyzed and ruled on Moore‘s ineffective assistance of trial counsel claim when they adjudicated his first PCRA petition. The Court of Common Pleas held that Moore failed to meet the requirements under Pennsylvania law for an ineffective assistance of trial counsel claim. In its opinion on August 27, 2004, the Superior Court agreed, holding that Moore had failed to establish the first prong of his ineffective assistance of PCRA counsel claim because he did not ―allege facts which would support a finding that trial counsel was *9 ineffective for failing to call Jessup as a witness.‖ Appendix (―App.‖) 570. Specifically, he did not allege that Attorney Tinari knew or should have known about Jessup as a potential witness. Nor did he allege that Jessup was prepared to cooperate with the defense or that she would have testified on Moore‘s behalf. Due to the absence of those allegations, the Superior Court affirmed the denial of his PCRA petition by the Court of Common Pleas. Notably, the Superior Court held that Moore had properly layered his ineffectiveness claim and preserved the issue for its review. On May 24, 2005, the Pennsylvania Supreme Court denied Moore‘s petition for allowance of appeal.
We conclude that the Superior Court adjudicated Moore‘s ineffective assistance of trial counsel claim on the merits on August 27, 2004 when it affirmed the denial by the Court of Common Pleas of Moore‘s PCRA petition. Although Moore did not directly raise his ineffective assistance of trial counsel claim in his first PCRA petition, both the Court of Common Pleas and the Superior Court addressed his claim and assessed whether he had pled sufficient facts to prevail on such a claim. While the Superior Court did not rule on Moore‘s ineffective assistance of trial counsel claim directly in the usual manner, its decision was based on the substance of that claim.
The Superior Court‘s disposition of Moore‘s claim is analogous to the state court‘s
adjudication in Albrecht v. Horn,
In these circumstances, where the state courts recognized that Moore was making
a constitutional argument, overlooked the failure to exhaust, and addressed the merits of
his claim, it would be hollow to hold that Moore‘s claim is nevertheless procedurally
defaulted. See, e.g., Hull v. Kyler,
court decides a constitutional question, even though it does not have to, it necessarily holds that the policies underpinning its procedural rule are unworthy of vindication under *11 the particular circumstances of the case before it.‖). As a result, we conclude that we may address the merits of Moore‘s habeas petition. [1]
B.
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (―AEDPA‖), which substantially changed federal habeas corpus law. In particular, AEDPA created § 2254(d), which provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). ―This is a difficult to meet and highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given the
benefit of the doubt[.]‖ Cullen v. Pinholster,
In order for § 2254(d) deference to apply, the state court must have adjudicated
petitioner‘s claim on the merits. A state court decision is an ―adjudication on the merits‖
for the purposes of applying the deferential standard of § 2254(d) where it is ―a decision
finally resolving the parties‘ claims, with res judicata effect, that is based on the
substance of the claim advanced, rather than on a procedural, or other, ground.‖
Simmons v. Beard,
In this case, the District Court applied the deferential AEDPA standard set forth in § 2254(d). We review de novo the District Court‘s legal conclusion as to whether AEDPA deference applies to this petition. Id. In considering whether § 2254(d) applies,
*13 we review the ―last reasoned decision‖ of the state courts on the petitioner‘s claims. Id. at 231–32. As we explained above, the Superior Court‘s August 27, 2004 assessment of the merits of Moore‘s ineffective assistance of trial counsel claim was a final decision on the merits that has preclusive effect. As such, it was an adjudication on the merits for the purposes of applying the deferential standard in § 2254(d). [3] We turn, therefore, to consideration of whether Moore is entitled to relief under § 2254(d) and hold that he is not.
First, the Superior Court‘s adjudication of Moore‘s ineffective assistance of trial
counsel claim did not result in a decision that ―was contrary to, or involved an
unreasonable application of, clearly established Federal law[.]‖ 28 U.S.C. § 2254(d)(1).
Under federal law, to succeed on an ineffective assistance of counsel claim, a petitioner
must show that (1) counsel‘s performance was deficient, i.e., ―counsel‘s representation
fell below an objective standard of reasonableness,‖ and (2) the deficiency prejudiced
petitioner, i.e., ―there is a reasonable probability that, but for counsel‘s unprofessional
*14
errors, the result of the proceeding would have been different.‖ Strickland v.
Washington,
The Superior Court found that Moore had not pled facts that would satisfy the Pennsylvania standard for a claim of ineffective assistance of counsel based on failure to call a witness, which requires a showing
(1) that the witness existed; (2) that the witness was available; (3) that counsel was informed of the existence of the witness or should have known of the witness‘s existence; (4) that the witness was prepared to cooperate and would have testified on appellant‘s behalf; and (5) that the absence of the testimony prejudiced appellant.
Commonwealth v. Fulton,
Nor would the Superior Court‘s decision be an unreasonable application of the
Strickland standard because it did not result ―in an outcome that cannot reasonably be
*15
justified under
Strickland
.‖ Werts v. Vaughn,
In his response to the notice by the Court of Common Pleas of its intention to deny his PCRA petition, Moore alleged that Jessup told Attorney McDermott that Lamb told her that he did not remember who was with him during the robbery. That assertion lacks critical information, such as when that conversation took place and the circumstances surrounding the conversation. This bare-bones statement is insufficient to show a reasonable probability that, had Jessup testified, the result of the proceeding would have been different. Moreover, Lamb was extensively cross-examined about his memory of the events on the day of the murder. On cross-examination, Lamb admitted that he had smoked marijuana before meeting Moore and used other drugs on the day of the murder, *16 including angel dust and codeine. He remembered many other details from that day. For instance, he recalled spending time with a number of friends that afternoon, that he carried a gun that he owned for approximately one week or one week-and-a-half, the streets he and Moore had walked down, that he and Moore had had Chinese food for dinner at a store for which they paid about $5 or $6, that Moore left the store because Lamb said something was wrong with his eyes, who the other people in the Chinese food store were, and how many shots were fired during the robbery and in what sequence. With all of this evidence demonstrating Lamb‘s memory of the day in question, a statement by Lamb at some unknown time to Jessup that he did not remember who was with him does not create a reasonable probability that, had Jessup testified, the result of the proceeding would have been different. Thus, Moore has not convinced us that Attorney Tinari‘s error prejudiced his case and the Superior Court‘s decision did not amount to an unreasonable application of the Strickland standard.
We also conclude that the Superior Court‘s decision was not ―based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.‖ 28 U.S.C. § 2254(d)(2). The state court‘s factual determinations are
presumed to be correct, and the petitioner bears the burden of rebutting that presumption
by clear and convincing evidence. Appel,
The Superior Court‘s finding that Moore did not allege that Attorney Tinari knew or should have known about Jessup as a potential witness is admittedly troublesome. With his answer to the notice by the Court of Common Pleas of its intent to deny the first PCRA petition, Moore submitted a letter that he sent to Attorney Tinari on October 14, *17 1999 stating: ―Im (sic) requesting Lapricia Jessup gets subpoena to testify. She has information that is essential in proving my innocence.‖ App. 970–71. Thus, there was evidence in the state court record at the time the Superior Court ruled on Moore‘s first PCRA petition that Attorney Tinari knew about Jessup as a potential witness and yet failed to interview her. Despite the Superior Court‘s questionable conclusion on this fact, the Superior Court‘s holding was also based on the reasonable determination that Moore had not alleged other, critical facts.
In particular, it was not unreasonable for the Superior Court to find that Moore failed to demonstrate that Jessup would have cooperated with the defense and testified in Moore‘s favor. Jessup‘s reluctance to sign an affidavit or to testify at a hearing for Attorney McDermott indicates that she would have refused to testify. More importantly, Moore did not at that time provide the Court with an affidavit from Jessup stating that she was willing to testify or what she would testify about. [4] Thus, we conclude that the Superior Court‘s holding was supported by a reasonable determination of key facts. *18 For these reasons, we hold that Moore is not entitled to relief under § 2254(d) and we will affirm the District Court‘s denial of Moore‘s petition for a writ of habeas corpus. [5]
IV.
For the foregoing reasons, we will affirm the District Court‘s denial of Moore‘s petition for a writ of habeas corpus.
Notes
[1] See also 28 U.S.C. § 2254(b)(2) (―An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.‖).
[2] In some cases, this Court has indicated that an ―‗unreasonable application‘‖ of
Supreme Court precedent might also be found where ―‗the state court either unreasonably
extends a legal principle from our precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.‘‖
Appel v. Horn,
[3] The Superior Court‘s refusal to grant Moore an evidentiary hearing on his
claims does not mean that its decision was not an adjudication on the merits. See
Pinholster,
[4] Moore later submitted a notarized statement from Jessup stating that she was
willing to testify at Moore‘s trial. Because we hold that § 2254(d) applies, however, we
are bound by the United States Supreme Court‘s holding in Cullen v. Pinholster that
―review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.‖
[5] Although Moore presents some arguments in his brief regarding the other two
claims in his habeas petition, we did not issue a certificate of appealability with respect to
those claims and, therefore, they are not before us on appeal. We also note that, although
it is not at issue on appeal, Moore‘s ineffective assistance of PCRA counsel claim is
unavailing, as there is no constitutional right to counsel in a post-conviction proceeding.
In a recent opinion, Martinez v. Ryan,