Lomax v. Gilmore

COREY LOMAX, Petitioner, v. ROBERT GILMORE, et al., Respondents.

Civil Action No. 2:18-cv-594

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

October 30, 2020

Magistrate Judge Patricia L. Dodge

MEMORANDUM

Pending before the Court¹ is the Petition for a Writ of Habeas Corpus (ECF No. 1) filed by state prisoner Corey Lomax ("Petitioner") pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court will deny the Petition and deny a certificate of appealability.

I. Introduction

Petitioner challenges the judgment of sentence imposed upon him on March 24, 2009 by the Court of Common Pleas of Washington County on his convictions of robbery, criminal conspiracy to commit robbery, theft by unlawful taking, and aggravated assault. The charges stemmed from an incident that occurred the evening of March 15, 2008 between Petitioner, his co-defendant, Detrius Wade, and the victim, Anthony Franell.

Petitioner raises the following claims for habeas relief:

Claim I Trial counsel was ineffective for:

A. failing to investigate and present the testimony of Petitioner's alibi witness, Courtney Wright;

B. advising Petitioner not to testify at trial;C. failing to object to the jury instruction given on:

1. aggravated assault; and

2. prior inconsistent statements;

Claim II Trial counsel was ineffective for failing to move for the severance of Petitioner's trial from that of Wade;

Claim III The prosecution violated the rule of Brady v. Maryland, 373 U.S. 83 (1963) because it suppressed evidence that it had entered into negotiations with Franell to give him a more lenient sentence in his own criminal case in exchange for his testimony against Petitioner and Wade, and it knowingly presented, or failed to correct, false testimony that it had not;

Claim IV Trial counsel was ineffective for failing to move for a change of venue because the jury pool was tainted by pre-trial sensational and inflammatory publicity;

Claim V The mandatory minimum sentences allegedly imposed upon Petitioner pursuant to 42 PA. CONS. STAT. § 9712 violated the rule of Alleyne v. United States, 570 U.S. 99 (2013) because there was no finding by the jury that he used a firearm during the commission of a crime by evidence beyond a reasonable doubt; and

Claim VI There was insufficient evidence to support the jury's verdicts.

ECF No. 2 at 2-15.²

In their answer (ECF No. 9), Respondents contend that Petitioner procedurally defaulted any claim he did not also raise to the Superior Court of Pennsylvania on direct appeal or in his state-court collateral proceeding under Pennsylvania's Post Conviction Relief Act ("PCRA"). Respondents also contend that none of Petitioner's claims have merit. In his reply (ECF No. 16), Petitioner asserts that under the rule of Martinez v. Ryan, 566 U.S. 1 (2012), the Court should excuse the default of any procedurally defaulted claim and review it de novo.

II. Relevant Background³

Petitioner and Wade's joint jury trial was held in January 2009. The Commonwealth presented the testimony of five witnesses, including but not limited to Franell, Franell's criminal defense attorney, Peter Marcoline, Esq., and, the lead investigator in the case, Detective Mark Marcucci. The trial court summarized the evidence introduced at trial as follows:

In December 2007, Anthony Franell was the victim of a burglary in which a large gold chain and several televisions were stolen from his residence. See, trial Transcript ("T.T."), pg. 7. On March 15, 2008, [Petitioner's] co-defendant in this case, Detrius Wade, placed a telephone call to Mr. Franell and indicated that he had something of Mr. Franell's and asked if Mr. Franell wanted it back.² (See, T.T., pg. 10). Mr. Franell testified that he assumed Co-Defendant Wade meant that he had the chain. (Id.) Mr. Franell then arranged to meet Co-Defendant Wade and proceeded to pick up both Co-Defendant Wade and [Petitioner]. (Id. at 11). Mr. Franell then drove them back to his residence in order to retrieve money to pay the men for the return of his chain. Upon arriving at his home, Mr. Franell then took the chain upstairs and hid the chain in his room underneath his mattress before returning downstairs to where [Petitioner] and Co-Defendant Wade had remained. (Id. at 14). The three men then proceeded to play pool, smoke marijuana and rap in a recording studio that was within the victim's home.

² A myspace video was posted approximately one month after the burglary in which several males were seen displaying the chain and rapping about how they "got yo chain." The Defendants were not depicted in the video, however, it was testified to at trial that one of the men in the video, Marvis Johnson, was the father of the children of [Petitioner's] sister, and that the men in the video were acquainted with the Defendants.

After exciting the studio [Petitioner] pulled a .380 handgun on Mr. Franell. (Id. at 16). Co-Defendant Wade then proceeded to pull out another firearm as well. (Id.) [Petitioner] ordered Mr. Franell to place his hands in the air and to "get the f***on your knees." (Id.) Co-Defendant Wade then asked Mr. Franell where the chain was and proceeded to go upstairs to look for the chain. (Id. at 17). [Petitioner] continued to hold his weapon on Mr. Franell while his co-defendant searched for the chain. While Mr. Franell was alone with [Petitioner], Mr. Franell began to rise to his feet and stand up. (Id. at 18). When Mr. Franell stood up, [Petitioner] fired his weapon at Mr. Franell. [Petitioner] fired his weapon four times, striking thevictim once in his upper right chest.⁵ [Petitioner] and his Co-Defendant Wade then exited the home and took the victim's 1997 Cadillac Coupe Deville.

⁵ Mr. Franell was wearing a heavy winter coat at the time and at trial it was revealed that the coat had several bullet holes in it from the shooting. The bullet, although striking the victim in the upper chest, ricocheted within his body and was lodged in his groin.

The victim, Mr. Franell[,] proceeded to call 911. When officers responded to the scene and questioned Mr. Franell about what happened, Mr. Franell responded that "two dirty n******," had shot him, but did not tell the officer the name of any individuals. (Id. at 26). Mr. Franell was then transported to the hospital and treated for his gunshot wound. On March 18, 2008, Mr. Franell again spoke to the police. (Id. at 28). Mr. Franell at first related to the police that two men wearing masks had been involved. (Id. at 30). Within a week [on March 25, 2008], however, Mr. Franell related to the police that he knew who the men were, but wanted some time to move out of his residence before charges were filed. (Id. at 31). At that time, Mr. Franell indicated to the police that [Petitioner] and Detrius Wade had robbed him and that [Petitioner] had been the one who fired his weapon at him.

Commonwealth v. Lomax, No. 1045-2008, slip op. at 1-3 (C.P. Washington Co. Aug, 27, 2009) ("Lomax I") (additional footnotes omitted), SCR No. 40.

On direct examination, Franell recounted what happened on March 15, 2008. He admitted that he did not identify Petitioner and Wade when the police responded to his 911 call, or when he was first interviewed by Det. Marcucci on March 18, 2008. Trial Tr. at 26, 29-30. Franell said that he initially was afraid to identify Petitioner and Wade, but that upon the advice of Attorney Marcoline, he reported to Det. Marcucci on March 25, 2008 what really happened. Id. at 31-32.

During his cross-examination, Franell was asked in more detail about his prior inconsistent statements, including one that he gave to the attending physician at the hospital. Id. at 67. Franell denied giving that prior inconsistent statement, id., but the defendants later introduced his medical report from the hospital the night of the shooting. Id. at 174-76, 190-91. In it, the attending physician recorded that Franell "initially stated that he was shot by an unknown assailant during a drive-by shooting [and] eventually changed his story to state that he was being held up on his knees with his hands in the air with a gun apparently pointed down on his right chest." Id. at 191.

The police searched Franell's home after the shooting and criminal charges were filed against him in the Court of Common Pleas for Washington County for items found there.⁴ Franell testified that no one had promised him any benefit in his own criminal case in exchange for his testimony against Petitioner and Wade. Id. at 33.

Marcoline's testimony corroborated Franell's. He stated that Franell met with him on March 17, 2008 and indicated that did not want to identify his assailants because he was afraid. Id. at 103-05. He advised Franell to contact the police and cooperate with their investigation. Id. at 106. Marcoline further testified that the Commonwealth had not made any promises of leniency in exchange for Franell's testimony. Id. at 107. He also said that there had been no discussion about a plea offer between himself and the assistant district attorney prosecuting Franell's case. Id. at 112-14. On cross-examination, Marcoline acknowledged the incentive an individual in Franell's situation had to cooperate with the Commonwealth in the hope that it would benefit him in his own case. Id. at 118-22, 125-28. He also acknowledged that on two prior occasions he had moved to postpone Franell's plea hearing or trial. On the first occasion, in November 2008, Marcoline requested a postponement "because the Commonwealth was requesting [Franell] testify at another trial[.]" Id. at 112. On the second occasion, in December 2008, Marcoline wrote "no offer yet" on the form requesting the postponement. Id. at 115. Det. Marcucci testified that investigators found two brass .380 shell casing casings and a .380 slug near the location in the house where Franell stated Petitioner had shot him. Id. at 131. He further testified that Franell indicated to him that he was afraid to identify Petitioner and Wade as his...