Garner v. Dist. Attorney, Civil Action No. 2: 16-cv-0223

KRISTOPHER EUGENE GARNER, Petitioner, v. DISTRICT ATTORNEY OF ALLEGHENY COUNTYand SUPERINTENDENT OF SCI FRACKVILLE, Respondents.

Civil Action No. 2: 16-cv-0223

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

June 3, 2020

United States District Judge Nora Barry Fischer

Chief United States Magistrate Judge Cynthia Reed Eddy

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

Before the Court is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") filed pro se by Petitioner, Kristopher Eugene Garner. Garner is a Pennsylvania prisoner currently housed at SCI-Frackville, serving an aggregate term of imprisonment of 17-1/2 years to 35 years for his convictions of third-degree murder and criminal conspiracy. For the reasons below, it is recommended that the Petition be denied and a certificate of appealability also be denied.

II. REPORT

A. Relevant Procedural and Factual Background

This case arises from the fatal stabbing of Michael Hixson on September 12, 2003. The Superior Court summarized the facts that led to Garner's arrest and conviction as follows:

The incident in question occurred on September 12, 2003, in the late evening hours in the downtown area of the city of Pittsburgh. The Pittsburgh police were notified of a man bleeding in front of the Saks department store. Upon their arrival, they discovered the victim with multiple stab wounds. The victim ultimately died from the injuries. On the night in question [Garner] and a co- defendant (Leonard Anthony), and [Marvin Harpool] (accomplice) had an encounter with the victim. [Harpool] (accomplice) testified against the other two at trial. In this encounter, their motive was to obtain money from the victim, initially through the sale of drugs and eventually robbery. During the encounter, a physical altercation took place in which the victim was kicked and punched, and the co-defendant [Anthony] ultimately stabbed the victim with a knife several times. Money was taken from the victim and the three fled. The case remained unsolved for many years, until [Harpool] (accomplice), in exchange for a lesser prosecution, aided police in identifying [Garner] and co-defendant [Anthony]. Because this murder occurred in an area [where] there were other people present, there was an eyewitness who testified at trial that she had confronted the stabber. Because he had a mask on his face, she could not independently identify the co-defendant [Anthony], as she could only identify him by his eyes. With the aid of [Harpool] (accomplice) who was acting in concert with [Garner] and co-defendant [Anthony], when the eye-witness viewed [Anthony's] eyes, she positively identified him as the person who[m] she encountered that stabbed the victim on the night in question.

Commonwealth v. Garner, No. 731 WDA 2010, slip op., at 1-2 (Pa. Super. Ct. Oct. 25, 2011) (quoting 1925(a) Opinion, July 13, 2020, pp. 3-4) (ECF No. 15-5 at 1-2).

In 2007, Garner was arrested for the murder of Michael Hixson. Following three jury trials that each resulted in a mistrial, a fourth jury trial began on August 24, 2009, before Senior Judge John K. Reilly in the Court of Common Pleas of Allegheny County, Pennsylvania. On August 27, 2009, the jury returned a verdict finding Garner guilty of third degree murder and criminal conspiracy to commit robbery. On November 20, 2009, Judge Reilly sentenced Garner to fifteen to thirty years imprisonment for third degree murder, and a consecutive two and a half to five years imprisonment for conspiracy.

On November 30, 2009, Garner, through counsel, filed a timely post-sentence motion and on March 23, 2010, filed a "Supplement to Post Sentence-Motion." The trial court did not rule on either the motion or the supplemental motion and on April 6, 2020, both were denied byoperation of law under Pennsylvania Rule of Criminal Procedure 720(B)(3)(b).¹ On direct appeal, Garner, through counsel, raised three claims:

(i) Whether the evidence was sufficient to sustain guilty verdicts on counts of third degree murder and criminal conspiracy to commit murder?

(ii) Is the Appellant entitled to a new trial, or at least an evidentiary hearing, when after-discovered evidence is obtained confirming that Garner was not involved in the homicide?²

(iii) Does a due process violation occur when law enforcement fails to inform the defense about an independent eyewitness to the homicide until trial, at which time the eyewitness has died?

Id. at 3. On October 25, 2011, the Superior Court affirmed the judgment of sentence in part³ and remanded the case for an evidentiary hearing on the after-discovered testimony. The matter wasremanded and an evidentiary hearing was held on March 5, 2012 on the recantation testimony of witness Marvin Harpool.⁴ Judge Todd found that "Witness Martin Harpool testified credibly that his recantation testimony was made under duress" and that Harpool "did not knowingly and voluntarily recant his testimony concerning the Defendant Kristopher Garner." Order of Court, March 9, 2012 (ECF No. 15-5 at 24).

On March 18, 2013, Garner filed a pro se letter seeking a reduction of his sentence. Judge Todd, by Order of April 3, 2013, treated the letter as a request for relief under the Post-Conviction Relief Act ("PCRA") and appointed Charles Pass, Esquire, to represent Garner. Counsel filed an Amended Petition in which he raised two claims:

(i) Petitioner is entitled to time credit for time served for the time period October 17, 2007 through and including November 19, 2009; and

(ii) Attorney Seman, trial counsel, was ineffective for failing to adequately advise petitioner with respect to an alleged plea offer of 10, 12, or 15 year of incarceration in exchange for a plea of guilty.

On March 26, 2014, the court granted Garner's request for credit for time served and an evidentiary hearing was scheduled on the ineffectiveness claim. Following the evidentiary hearing, the court denied the PCRA petition finding as follows:

There is no evidence that counsel was ineffective in failing to consult with Petitioner about accepting or rejecting a plea offer. The evidence establishes that no plea offer was made nor was counsel ineffective regarding consulting Petitioner about any possible plea negotiations.

Order, Aug. 20, 2014 (ECF No. 15-7 at 4).

On August 26, 2015, the Superior Court of Pennsylvania affirmed the order denying the PCRA Petition, ECF No. 25-8 at 33-40, and December 30, 2015, the Pennsylvania Supreme Court denied the petition for allowance of appeal. (ECF No. 16-1 at 30).

On September 15, 2016, acting pro se, Garner filed a second PCRA petition claiming he had obtained a statement from Rahman Hafiz, and the contents of the statement constituted newly discovered facts. On January 17, 2017, the PCRA court dismissed the second PCRA petition as untimely finding that "Hafiz was known to the Petitioner at the time of trial" and thus the statement did not constitute newly discovered facts. (ECF No. 15-9 at 11; ECF No. 16-1 at 48 - 50). On May 4, 2018, the Superior Court of Pennsylvania affirmed the order denying the PCRA Petition. (ECF No. 15-9 at 56-59).

On May 3, 2016, between the litigation of his first and second PCRA petitions, Garner filed the instant habeas corpus petition under 28 U.S.C. § 2254. (ECF No. 5). In his petition, Garner raises four claims:

(1) Ineffectiveness of counsel / sentence reduction.

(2) After discovered evidence of witness at trial, who recanted testimony entitling me to a new trial and/or evidentiary hearing.

(3) Sufficiency of evidence for conviction.

(4) Was due process violated when law enforcement failed to inform the defense about an independent witness to the homicide.

Petition (ECF No. 5). At the request of Garner, the instant federal case was stayed pending the exhaustion of state court remedies. After Garner's second PCRA petition was dismissed as untimely, this case was reopened, and Respondents filed an Answer asserting that Garner is not entitled to federal relief because his claims are procedurally defaulted and without merit (ECF No. 15). The Court has reviewed the filings of the parties, as well as the state court record,including the transcripts from trial, sentencing hearing, and PCRA hearing. The matter is fully briefed and ripe for resolution.

B. The Standard for Habeas Relief under 28 U.S.C. § 2254

This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, enacted on April 24, 1996 ("AEDPA"), "which imposes significant procedural and substantive limitations on the scope" of the Court's review.⁵ Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017), cert. denied, No. 17-7437, -- U.S.---, 138 S. Ct. 1170 (Feb. 26, 2018).

1. Exhaustion of State Remedies

Among these procedural prerequisites is a requirement that the petitioner "has exhausted the remedies available in the courts of the State" before seeking relief in federal court. 28 U.S.C. § 2254(b); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. § 2254(b)(1)(A)). "The exhaustion requirement is satisfied only if the petitioner can show that he fairly presented the federal claim at each level of the established state-court system for review." Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). When a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).

Although mandatory, the exhaustion requirement "turns on an inquiry into what procedures are 'available' under state law." O'Sullivan, 526 U.S. at 847. Under Pennsylvanialaw, a federal claim becomes exhausted once it is presented to the Pennsylvania Superior Court, either as a direct appeal from a state criminal conviction or as an appeal...