BAYETE v. WETZEL

Civil Action No. 16-1 Erie.

CHIKUYO ASINIA BAYETE, Petitioner, v. JOHN WETZEL, et al., Respondents.

United States District Court, W.D. Pennsylvania.

Editors Note
Applicable Law: 28 U.S.C. § 2254
Cause: 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (State)
Nature of Suit: 530 Habeas Corpus (General)
Source: PACER


Attorney(s) appearing for the Case

CHIKUYO ASINIA BAYETE, Petitioner, Pro Se.

JOHN WETZELL, Respondent, represented by Mary Lynch Friedline , Office of Attorney General.

ATTORNEY GENERAL OF STATE OF PENNSYLVANIA, Respondent, represented by Mary Lynch Friedline , Office of Attorney General.

MICHAEL OVERMYER, Respondent, represented by Mary Lynch Friedline , Office of Attorney General.


MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SUSAN PARADISE BAXTER, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the petition for a writ of habeas corpus filed by state prisoner Chikuyo Asinia Bayete (the "Petitioner") pursuant to 28 U.S.C. § 2254 be denied and that a certificate of appealability be denied on all claims.

II. REPORT

A. Relevant Background1

In this habeas case, the Petitioner challenges his 2012 convictions in the Court of Common Pleas of Erie County (the "trial court") on counts of robbery and related crimes. The charges against him stemmed from his role in the home invasion and robbery that occurred around 2:00 a.m. on November 21, 2011, at the apartment of Jordan Tracy ("Jordan"), who was a drug dealer in the Erie area.

The Petitioner was represented at his trial by Erie Hackwelder, Esq., and Stephen E. Sebald, Esq. To support its case, the Commonwealth presented evidence to prove to the jury that the Petitioner and his brother, Shanti Bayete ("Shanti"), forced their way into Jordan's apartment, assaulted the occupants (Jordan, his brother Jarod Tracy ("Jarod"), and their friend Korrine Carson ("Korrine")), and then stole Jordan's safe, which contained approximately $3,000.2 The Petitioner and Shanti were dressed in dark clothing, had hosiery covering their faces, and had clear plastic gloves on their hands. As the robbery was occurring, Jarod ran outside to a neighbor's apartment. (Day One Trial Tr. at 78). After the robbery, as Petitioner and Shanti were fleeing the scene on foot and were on or near the street outside Jordan's apartment, Shanti was shot in the head and died instantly.3 By this time, Jordan and Korrine where outside too and were standing on a balcony that overlooked the street.

After Shanti was shot, the Petitioner kneeled over Shanti's body and pulled off his own mask. That is when Jordan saw the Petitioner's face. (Id. at 51-52). Jordan testified at the Petitioner's trial that he immediately recognized the Petitioner because he knew him. (Id.) Jordan explained that he (Jordan) was an "associate" of the Petitioner and Shanti's younger brother, Jeramiah Tracy ("Jeramiah"). (Id. at 71). According to Jordan, Jeramiah had been to his apartment and he knew that Jordan kept a safe there. (Id. at 56, 69-71). Jordan testified that when the Petitioner pulled his mask off, Jordan yelled "I know who you are," and then the Petitioner ran away. (Id. at 51-52).

Officer James Cousins was the first officer to arrive at the scene and he encountered Jordan and Korrine by Shanti's body. They told Officer Cousins what Shanti just did and said that they could identify the other robber. (Id. at 84-87). Around this same time, Officer Nick Stadler, who was nearby and had also received a call to proceed to the area, observed the Petitioner running from the direction of the scene of the crime. (Id. at 87, 98-102). He stopped the Petitioner and questioned him. The Petitioner, who was wearing a dark coat and had blood on his boots, told the officer that there had been a shooting and that his brother was dead. The officer took the Petitioner back to the scene of the crime in a patrol car. (Id. at 101-02).

Officers Cousins and Stadler testified at the Petitioner's trial that after the Petitioner was returned to the scene of the crime, Jordan, Korrine, and Jarod identified him as being Shanti's accomplice. (Id. at 90, 101-02). Thereafter, the Petitioner gave a statement to the police in which he admitted that it was he who had been kneeling over Shanti's dead body right after the robbery had taken place. (Day 2 Trial Tr. at 9-10, 13). He said that he did not participate in the robbery and that he arrived at the scene only after the crimes had occurred. His version of events was that he was walking towards Jordan's apartment because he knew that Shanti had gone there to buy marijuana and he wanted to see why it was taking Shanti so long. As he approached Jordan's apartment building, the Petitioner said, he came upon Shanti's dead body in the street and that is when Jordan saw him kneeling over it. (Id. at 5-10).

The police searched the route that the Petitioner ran when he fled the scene of the crime and along it they found a clear plastic glove on the ground. (Day 1 Trial Tr. at 115). It was tested for DNA, but it did not contain a sufficient sample to obtain a result. (Id. at 120-21).

The Petitioner testified in his own defense, and his testimony was consistent with the statement that he had given to the police after he was taken into custody. (Day 2 Trial Tr. at 13). He also presented the testimony of a friend of his named Eric Freeman ("Freeman"). Freeman testified that he was incarcerated with Jordan at some point after the crimes at issue in the case occurred. On one occasion, Freeman said, he overheard Jordan speaking to his mother on the telephone. Freeman testified that Jordan said to her "don't worry about him, he will stick to his story, make sure his brother sticks to his." (Day 1 Trial Tr. at 130).

On September 12, 2012, the jury convicted the Petitioner of robbery, criminal conspiracy, burglary, theft by unlawful taking, possessing instruments of crime, former convict not to possess a firearm, and three counts of simple assault. The trial court sentenced him to a lengthy aggregate term of imprisonment and on November 26, 2012. The Superior Court of Pennsylvania affirmed his judgment of sentence in a decision it issued on February 7, 2014. (ECF No. 5-5, Commonwealth v. Bayete, No. 1169 WDA 2013, slip op. (Pa.Super.Ct. Feb. 7, 2014) ("Bayete I")).4

In April 2014, the Petitioner filed with the trial court a motion for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. He raised the same four claims of ineffective assistance of trial counsel that he now raises in this federal habeas proceeding.5 Those claims are that his trial counsel (he specifically referenced Attorney Hackwelder) provided him with ineffective assistance in violation of his Sixth Amendment rights for failing to:

Claim 1(a): move for the suppression of the out-of-court identifications that Jordan, Korrine, and Jarod gave to the police when the Petitioner was brought back to the scene of the crime; Claim 1(b): comply with the technical notice requirements of Pennsylvania Rule of Criminal Procedure 567, thereby precluding the defense from being able to present the testimony of alibi witness Loni Sherod ("Sherod"); Claim 2(a): object to the admission of photographs of Shanti's body at the crime scene; and, Claim 2(b): object to the admission of the evidence that the Petitioner had previously been convicted of a felony drug offense.

The trial court denied the Petitioner's PCRA motion. He then filed an appeal with the Superior Court. On September 16, 2015, the Superior Court issued a decision in which it affirmed the denial of PCRA relief. (ECF No. 5-6, Commonwealth v. Bayete, No. 1150 WDA 2014, slip op. (Pa.Super.Ct. Sept. 16, 2015) ("Bayete II")). It denied on the merits each of the claims at issue in this case.

Thereafter, the Petitioner filed with this Court his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). The Respondents filed their answer (ECF No. 5) and the relevant state court records, and the Petitioner filed a reply (ECF No. 13).

B. Discussion

1. Standard of Review

This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254. Under this statute, "[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Petitioner carries the burden of proving that he is entitled to the writ. See, e.g., Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which, among other things, amended 28 U.S.C. § 2254. AEDPA imposes "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." Pinholster, 131 S.Ct. at 1398 (internal quotation marks and citations omitted).

Because the Superior Court denied the claims at issue in this case on the merits, this Court's review of each claim is very limited. Importantly, it is not for this Court to decide whether the Superior Court's decision was right or wrong. Rather, under AEDPA's standard of review, which is codified at § 2254(d), the Court can grant the Petitioner relief on a claim only if he demonstrates that the Superior Court's adjudication of it "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[.]" 28 U.S.C. § 2254(d)(1) (emphasis added).6

The "clearly established Federal law," 28 U.S.C. § 2254(d)(1), in which to analyze each of the Petitioner's claims is governed by Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance under Strickland, the Petitioner has the burden of establishing that his trial "counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 688. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Importantly, the Supreme Court emphasized that "counsel should be `strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment[.]'" Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690). See also Harrington v. Richter, 562 U.S. 86, 104 (2011) ("A court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance.") (quoting Strickland, 466 U.S. at 689).

The Supreme Court also instructed:

"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.

Richter, 562 U.S. at 105.

Strickland also requires that the Petitioner demonstrate that he was prejudiced by his trial counsel's alleged deficient performance.7 This places the burden on him to establish "that there is a reasonable probability that, but for counsel's unprofessional errors," the result of his trial "would have been different." Strickland, 466 U.S. at 694. As the United States Court of Appeals for the Third Circuit explained:

[The Petitioner] "need not show that counsel's deficient performance `more likely than not altered the outcome of the case' — rather, he must show only `a probability sufficient to undermine confidence in the outcome.'" Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 693-94). On the other hand, it is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." [Richter], 131 S.Ct. at 787 (citing Strickland, 466 U.S. at 693). Counsel's errors must be "so serious as to deprive the defendant of a fair trial." Id. at 787-88 (citing Strickland, 466 U.S. at 687). The likelihood of a different result must be substantial, not just conceivable. Id.

Brown v. Wenerowicz, 663 F.3d 619, 630 (3d Cir. 2011).

2. The Superior Court's Adjudication Was Not "Contrary To" Strickland

"The test for § 2254(d)(1)'s `contrary to' clause is whether the state court decision `applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme] Court but reaches a different result.'" Rountree v. Balicki, 640 F.3d 530, 537 (3d Cir. 2011) (quoting Brown v. Payton, 544 U.S. 133, 141 (2005), which cited Williams v. Taylor, 529 U.S. 362, 405 (2000) and Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam)). The Superior Court applied the Strickland standard when it evaluated the Petitioner's claims. (ECF No. 5-6, Bayete II, No. 1150 WDA 2014, slip op. at 6-7).8 Accordingly, its adjudication of each of the Petitioner's claims withstands review under the "contrary to" clause of § 2254(d)(1). Williams, 529 U.S. at 406 ("a run-of-the mill state-court decision applying the correct legal rule from [Supreme Court] cases [does] not fit comfortably within § 2254(d)(1)'s `contrary to' clause.")

3. The Superior Court's Adjudication Was Not "An Unreasonable Application of" Strickland

The next, and only remaining, inquiry for this Court is whether the Petitioner has established that the Superior Court's adjudication of any of his claims was an "unreasonable application of" Strickland. The Supreme Court explained that this burden is very difficult to meet, noting that "[i]t bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Richter, 562 U.S. at 102.

Importantly, the Supreme Court instructed that § 2254(d)(1)'s "unreasonable application" clause:

preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Id. at 102-03 (emphasis added). The Supreme Court also instructed:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential," [Strickland, 466 U.S.] at 689; Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), and when the two apply in tandem, review is "doubly" so, [Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)]. The Strickland standard is a general one, so the range of reasonable applications is substantial. [Id.] Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Id. at 105 (parallel citations omitted) (emphasis added).

a. Claim 1(a)

In his first claim, the Petitioner contends that his trial counsel was ineffective for failing to move for the suppression of evidence of the out-of-court identifications that Jordan, Korrine, and Jarod gave to the police when the Petitioner was brought back to the scene of the crime. The Superior Court first addressed the Petitioner's argument that their out-of-court identifications were tainted by the unduly suggestive identification process. It held:

[The Petitioner] argues that because police transported him to the crime scene, in a patrol car, immediately after the crime, in handcuffs and covered with blood, the out-of-court identification of him as the robber by Jordan, Jarod, and Korrine was unduly suggestive. He claims that his counsel's failure to move for suppression of this pre-trial identification was ineffective assistance of counsel that entitles him to a new trial. We disagree. Where the challenge is to a failure to move for suppression of evidence, the defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable. Commonwealth v. Melson, 556 A.2d 836, 839 (Pa.Super. 1989), appeal denied, 575 A.2d 111 (Pa. 1990) (quoting Kitrell v. Dakota, 540 A.2d 301, 306, (Pa.Super. 1988), appeal denied, 565 A.2d 1167 (Pa.1988)). In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable. The purpose of a "one on one" identification is to enhance reliability by reducing the time elapsed after the commission of the crime. Suggestiveness in the identification process is but one factor to be considered in determining the admissibility of such evidence and will not warrant exclusion absent other factors. As this Court has explained, the following factors are to be considered in determining the propriety of admitting identification evidence: the opportunity of the witness to view the perpetrator at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the perpetrator, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. The corrupting effect of the suggestive identification, if any, must be weighed against these factors. Absent some special element of unfairness, a prompt "one on one" identification is not so suggestive as to give rise to an irreparable likelihood of misidentification. Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa.Super. 2014), appeal denied, 101 A.3d 102 (Pa. 2014). Instantly, Jordan, Jarod, and Korrine positively identified [the Petitioner] as the person who had robbed Jordan's apartment when police brought him to them in a marked patrol car, immediately after the shooting. Jarod and Korrine both testified that they had never seen [the Petitioner's] face, but they both noticed he was wearing dark clothing. Jordan testified that he saw [the Petitioner's] face when he was bending over his brother's dead body in the street around 2:00 a.m., under a streetlight, when he lifted his mask. He specifically recognized him as the older brother of Jordan's friend, Jeremiah. A suppression court may have found that, under the totality of the circumstances, the identification by Jarod and Korrine was not reliable and granted a motion to suppress their out-of-court identification of [the Petitioner]. However, due to Jordan's certainty of [the Petitioner's] identity as someone he specifically recognized, it is unlikely the court would have found Jordan's identification of [the Petitioner] so suggestive as to give rise to an irreparable likelihood of misidentification.

(ECF No. 5-6, Bayete II, No. 1150 WDA 2014, slip op. at 7-9).

The Superior Court further held that the Petitioner did not demonstrate that he was prejudiced by counsel's alleged ineffectiveness. It discussed the strength of the other evidence that established the Petitioner's guilt, including Jordan's in-court identification and the Petitioner's own admission that it was he who was at the scene of the crime kneeling over Shanti's body. It explained:

"When an out-of-court identification is alleged to be tainted, an in-court identification may still stand if, considering the totality of the circumstances, the identification had an origin sufficiently distinguishable to be purged of the primary taint." Commonwealth v. Kendricks, 30 A.3d 499, 506 (Pa.Super. 2011), appeal denied, 46 A.3d 716 (Pa. 2012) (internal quotations and citation omitted). The Commonwealth must prove this independent basis for identification through clear and convincing evidence. See Commonwealth v. Davis, 17 A.3d 390, 394 (Pa.Super. 2011), appeal denied, 29 A.3d 371 (Pa. 2011). "An independent basis is established when `the in-court identification resulted from the criminal act and not the suggestive [identification procedure].'" Id. The factors a court should consider in determining whether there was an independent basis for the identification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness during the confrontation; and (5) the length of time between the crime and the confrontation. Kendricks, 30 A.3d at 506. With regard to the first factor, Jordan had an opportunity to view [the Petitioner] while he robbed the apartment, wearing dark clothing and a mask. Jordan then saw [the Petitioner's] face while [the Petitioner] was bent over his dead brother's body and lifted his mask. Jordan immediately recognized [the Petitioner] as someone he had seen before in the neighborhood, specifically, the brother of Jordan's friend, Jerimiah. Regarding the second factor, due to the intensity of the robbery, it is likely Jordan was paying close attention, even though he had been smoking marijuana and had been knocked down and tased. Regarding the accuracy of the description, Jordan testified that the two people who robbed his apartment were wearing: "Black jacket[s] and pantyhose over their face[s]. Just all black." N.T., 9/12/12, at 43. After the shot was fired, Jordan saw [the Petitioner] dragging his brother in the street and testified: "[the Petitioner] lifted up his mask and I was like, oh, I know who you are." Id. at 51. Jordan testified that he recognized [the Petitioner] as his friend's brother because he had seen him around before in the neighborhood. Regarding the fourth and fifth factors, Jordan expressed certainty that [the Petitioner] was the person who robbed him, and he identified him immediately after the crime. An analysis of these factors make it unlikely that a court would have granted a motion to suppress Jordan's out-of-court identification of [the Petitioner]. However, even if the court had granted a motion to suppress the out-of-court identification, Jordan's in-court identification was admissible because it resulted from the criminal act and not the suggestive identification procedure. See Davis, supra. This in-court identification, along with the corroborative stories of the other witnesses and [the Petitioner's] admission that he was at the crime scene, dragging his brother in the street, implicated [the Petitioner] as one of the two robbers. Even if the court had granted a motion to suppress the out-of-court identification, there is not a reasonable probability that the result of the trial would have been more favorable to [the Petitioner].

(Id. at 10-12 (some bracketed text added)).

The Petitioner has not established that the above-quoted decision by the Superior Court "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Therefore, this Court cannot conclude that the Superior Court's adjudication of Claim 1(a) was an "unreasonable application of" Strickland.

b. Claim 1(b)

In Claim 1(b), the Petitioner contends that his trial counsel was ineffective for failing to comply with the notice requirements of Rule 567 of the Pennsylvania Rules of Criminal Procedure, which precluded Sherod from testifying for the defense. The Petitioner alleges that Sherod could have provided testimony to corroborate his own trial testimony that the reason that he was at the scene of the crime was that he went to check on why it was taking Shanti so long to return from buying marijuana at Jordan's apartment. In denying this claim, the Superior Court concluded, inter alia, that the Petitioner failed to establish how counsel's challenged conduct prejudiced him. It held:

[The Petitioner] admits to being at the crime scene, minutes after the crime, holding his bleeding brother in his arms in the street. Jordan testified that he saw [the Petitioner] rob his apartment and then lift his mask while standing over the body. The police testified that they saw [the Petitioner] immediately after the crime, covered in blood and wearing dark clothing. [The Petitioner] testified that he was coincidentally there at that time to check on his brother, who had departed to purchase marijuana from Jordan. If he had testified, Loni Sherod may or may not have corroborated [the Petitioner's] story. However, he would not have presented any new information that would have placed [the Petitioner] anywhere other than at the crime scene immediately after the crime. Thus, [the Petitioner] has failed to prove by a preponderance of the evidence that the outcome of the trial would have been different if Mr. Sherod had testified.

(ECF No. 5-6, Bayete II, No. 1150 WDA 2014, slip op. at 14).

The Superior Court appropriately looked to the strength of the evidence of the Petitioner's guilt to determine if he was prejudiced by the absence of Sherod's testimony. Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999) ("It is firmly established that a court must consider the strength of the evidence in deciding whether the Strickland prejudice prong has been satisfied."). When the Petitioner lifted his mask and revealed his face just after he and Shanti had exited Jordan's apartment, Jordan was able to immediately identify the Petitioner as one of the two individuals who had just broke into his apartment and stole his safe. Moreover, the police found a discarded plastic glove along the route that the Petitioner took when he fled the scene. Considering this and other evidence that supported a finding of the Petitioner's guilt, he has not demonstrated that the Superior Court's adjudication of Claim 1(b) "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Therefore, this Court cannot conclude that the Superior Court's adjudication of Claim 1(b) was an "unreasonable application of" Strickland.9

c. Claim 2(a)

In his next claim, Claim 2(a), the Petitioner contends that this trial counsel was ineffective for failing "to object to the admission of irrelevant, inflammatory and unduly prejudicial photographs" of Shanti's body. In denying this claim, the Superior Court determined that the Petitioner did not establish that he was prejudiced by counsel's alleged ineffectiveness in this regard. (ECF No. 5-6, Bayete II, No. 1150 WDA 2014, slip op. at 15). After all, the Superior Court explained, the Petitioner was not on trial for the murder of his Shanti, there was no implication that the Petitioner was responsible for his death, and the defense in fact implied that one of the prosecution's witnesses (Jarod or Jordan) may be have shot and killed Shanti. As was the case with the Petitioner's two previous claims, there is no basis for this Court to conclude that the Superior Court's decision to deny Claim 2(a) "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement,]" Richter, 562 U.S. at 103, and, therefore, its adjudication was not an "unreasonable application of" Strickland.

d. Claim 2(b)

In his final claim, Claim 2(b), the Petitioner contends that he received ineffective assistance because his counsel failed object to the admission of evidence that he had been previously convicted of a felony drug offense. That information was introduced via a stipulation because one of the charges against him was former convict not to own a firearm, in violation of 18 Pa.C.S. § 6105 (the Petitioner had a prior felony conviction that disqualified him from carrying a firearm). (Day One Trial Tr. at 122). At the end of the first day of the Petitioner's trial, the trial court advised and instructed the jury:

Stipulations are agreements between the parties that certain evidence may be placed before you without having a witness come in and testify to that evidence. You may accept that evidence just as if a witness had testified to it and it now becomes part of the overall evidence in the case for your consideration. Let me also say as to the stipulation to the fact that the defendant has a prior conviction which precludes him from owning a firearm, that prior conviction is not in any way, shape, or form any evidence of the defendant's guilt in this case. The sole purpose for the admission of that prior conviction is to show that the defendant is not allowed, under Pennsylvania law, to own a firearm because of it, and that is part of the charge that. . . has been lodged against him at Count Number 11 and I will instruct you specifically on the elements of that charge at a later time.

(Id. at 124-25).

In explaining why it determined that Claim 2(b) had no merit, the Superior Court first quoted from a decision by the Pennsylvania Supreme Court, which held:

We recognize that, pursuant to Pa.R.E. 403, relevant evidence may be excluded "if its probative value is outweighed by a danger of ... unfair prejudice." In a Comment to Rule 403, unfair prejudice is defined as "a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially." We are unable to conclude that, in a § 6105 persons not to possess firearms case, a defendant suffers unfair prejudice merely by the admission into evidence of his or her certified conviction of a specific, identified, predicate offense, which has been offered by the Commonwealth to prove the prior conviction element of § 6105. Any possibility of unfair prejudice is greatly mitigated by the use of proper cautionary instructions to the jury, directing them to consider the defendant's prior offense only as evidence to establish the prior conviction element of the § 6105 charge, not as evidence of the defendant's bad character or propensity to commit crime.

(ECF No. 5-6, Bayete II, No. 1150 WDA 2014, slip op. at 15 (quoting Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa. 2014)). The Superior Court next observed that the "[t]he law presumes that the jury will follow the instructions of the court[,]" and concluded that the Petitioner did not demonstrate that he was prejudiced by counsel's complained-of conduct. (Id. at 16 (citations omitted)).

The Superior Court's decision that the evidence of the Petitioner's prior conviction was admissible under the Pennsylvania Rules of Evidence is a state law determination that is not subject to review by this Court. See, e.g., Priester v. Vaughn, 382 F.3d 394, 401 (3d Cir. 2004) (federal habeas court cannot "reexamine state court determinations on state-law questions."). And as with all of the Petitioner's other claims, because the Petitioner has not established that the Superior Court's decision that there was no violation of his rights under the Sixth Amendment "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement[,]" Richter, 562 U.S. at 103, this Court cannot conclude that its decision to deny Claim 2(b) was an "unreasonable application of" Strickland.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be denied and that a certificate of appealability be denied.

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties may seek review of this Report and Recommendation by the district court by filing objections within 14 days after service. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).

FootNotes


1. The Respondents filed hard copies of the transcripts and some relevant state court records. In addition, they also attached relevant state court records as exhibits to their answer (ECF No. 5).
2. One of the intruders was armed with a handgun. The other had a taser gun. Both Jordan and Korrine were tased, and Jared had a gun pointed at his head. (Day One Trial Tr. at 20-22, 43-44, 76).
3. At the time the Petitioner's trial was held, the Commonwealth had not arrested anyone in the shooting death of Shanti. The identity of the shooter was not at issue in the Petitioner's trial, but the Petitioner's defense suggested that either Jordan or Jarod was responsible for shooting Shanti.
4. In his direct appeal, the Petitioner claimed that the Commonwealth introduced insufficient evidence to support his convictions. The Superior Court denied that claim on the merits. (ECF No. 5-5, Bayete I, No. 1169 WDA 2013, slip op. at 3-7).
5. The Petitioner's raised two additional claims in his federal habeas petition (Claims 3 and 4). In his reply to the Respondents' answer, he notified this Court that he withdrew them. (See ECF No. 13, Reply at 3 n.1).
6. Section 2254(d)(1) applies to questions of law and mixed questions of law and fact. Section 2254(d)(2) provides the standard of review for issues of fact, and it permits habeas relief only if the petitioner demonstrated that the state court's adjudication "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)(2). None of the claims before this Court involve solely an issue of fact. Therefore, § 2254(d)(2)'s standard of review does not apply to this case. But if it did, the Petitioner has not overcome it because he has not demonstrated that the Superior Court's adjudication of any of his claims 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."
7. The Supreme Court in Strickland noted that although it discussed the performance component of an effectiveness claim prior to the prejudice component, there is no reason for an analysis of an ineffectiveness claim to proceed in that order. 466 U.S. at 697. Consequently, if it is more efficient to dispose of an ineffectiveness claim on the ground of that the petitioner failed to meet his burden of showing prejudice, this course should be followed. Id.
8. Pennsylvania law for judging ineffectiveness corresponds with the Strickland standard. Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987); Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999). Although Pennsylvania courts typically articulate a three-prong test for gauging ineffective assistance claims and Strickland sets forth its test in two prongs, the legal evaluation is the same, and the differences merely reflect a stylistic choice on the part of state courts.
9. It is noted that the Superior Court stated that the Petitioner failed to prove "that the outcome of the trial would have been different if Mr. Sherod had testified[,]"(ECF No. 5-6, Bayete II, No. 1150 WDA 2014, slip op. at 14), and not whether, as stated in Strickland, there was a "reasonable probability" of a different outcome. At other points in its decision, however, the Superior Court correctly set forth Strickland's prejudice standard (id. at 7) and it expressly indicated that it was applying it to Claim 1(b) (id. at 14). (In Pierce, the case cited by the Superior Court, the Pennsylvania Supreme Court applied Strickland standard)). Therefore, this Court should not conclude that the Superior Court failed to apply the correct standard when it evaluated Claim 1(b). Indeed, the Supreme Court has cautioned federal courts reviewing a state prisoner's habeas petition to not be too quick to assume that the state court applied the wrong law, even if the state court was imprecise in language it used in evaluating a claim, particularly when a frequently applied and well-known standard such Strickland is at issue. Visciotti, 537 U.S. at 23-24 (finding the Court of Appeals for the Ninth Circuit's "readiness to attribute error [to the state court] is inconsistent with the presumption that state courts know and follow the law," and is "also incompatible with § 2254(d)'s `highly deferential standard for evaluating state-court rulings,' which demands that state court decisions be given the benefit of the doubt."). In Visciotti, the Supreme Court admitted that even it has stated imprecisely Strickland's prejudice standard at points in some of its decisions, and noted that the California Supreme Court's shorthand reference to the Strickland standard that was not entirely accurate "can no more be considered a repudiation of the standard than can this Court's own occasional indulgence in the same imprecision." 537 U.S. at 24 (citing Mickens v. Taylor, 535 U.S. 162, 166 (2002); Williams, 529 U.S. at 393). Nevertheless, even if this Court reviewed Claim 1(b) de novo and without deference under § 2254(d), it still fails because the Petitioner has not demonstrated that, had Sherod testified, there is a reasonably probability that the jury's verdicts would have been different.

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