McCary v. Clark

1

MICHAEL LA SHAWN MCCARY, Petitioner, v. SUPERINTENDENT MICHAEL R. CLARK; JOSH SHAPIRO, Pennsylvania Attorney General', and DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.

Civil Action No. 21-340

United States District Court, W.D. Pennsylvania

August 29, 2024

MEMORANDUM OPINION

RE: ECF NO. 5

MAUREEN P. KELLY, UNITED-STATES MAGISTRATE JUDGE

For the reasons that follow, the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), ECF No. 5, will be denied. A certificate of appealability also will be denied.^[1]

Michael La Shawn McCary (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Benner Township (“SCI-Benner”) in Bellefonte, Pennsylvania.

Petitioner initiated this action by submitting a pro se federal habeas petition, ECF No. 1, which was received by this Court on March 12, 2021. On April 6, 2021, the Petition was formally filed after Petitioner corrected certain formal deficiencies in the original submission. ECF No. 5. On the same date, Petitioner sought leave to file an amended habeas petition. ECF No. 7. The request was granted. ECF No. 8. Petitioner sought an extension of time to do so, which also was granted. ECF Nos. 11 and 12. However, Petitioner never submitted an amended petition, opting instead to file a Memorandum of Law in support of his initial Petition. ECF No. 14. Accordingly, the initial Petition remains the operative pleading in this case. ECF No. 5.

Respondents ultimately answered the Petition on October 12, 2021. ECF No 23.

Petitioner did not file a Traverse, despite being explicitly informed that he was entitled to do so. ECF No. 24; see also LCvR 2254.E.2. The Petition is ripe for adjudication.

In the Petition, Petitioner attacks his 2009 conviction of Murder of the First Degree, in violation of 18 Pa. C.S.A. § 2502(a), in the Court of Common Pleas of Allegheny County, Pennsylvania. Docket, Com, v. McCary, No. CP-02-CR-3770-2008 (C.C.P. Allegheny Cnty.) (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR-0003770-2008&dnh=8zBGoWu%2Fzh3VMmsCMIVddQ%3D%3D (last visited Aug. 29,2024)). His conviction came after a two-day bench trial before Judge David Cashman.

On April 20, 2009, Petitioner was sentenced to a mandatory term of life imprisonment without parole. ECF No. 23-1 at 32. See also Sentencing Hr'g Tr. dated Apr. 20, 2009, at 3.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following is a recitation of relevant factual history underlying Petitioner's conviction from the Pennsylvania Superior Court's opinion on direct appeal.

In the early morning hours of May 27,2005, McCary emerged from an alley and approached Kenneth Waller ("Waller") and David Wadley ("Wadley") as the two men walked on Penn Avenue in Pittsburgh, Pennsylvania. As McCary approached the two men, Waller said to Wadley, "Here goes the shit now." N.T., 1/15-21/09, at 20. An argument ensued between Waller and McCary. At Wadley's urging, Waller and Wadley walked away, but McCary followed the men, continuing his argument with Waller. In its Opinion, the trial court described what next transpired:

McCary approached Waller, and the two essentially began a shadow boxing type movement. Wadley testified that Waller was backpedaling in an effort to avoid getting hit. Waller, in fact, came out of one of his shoes in an effort to avoid contact with McCary.

At this point, Wadley observed a shiny object in McCary's hand. Wadley described McCary's arm swinging down, and Wadley heard two pops. As Wadley approached Waller, McCary began heading in the other direction. Waller told Wadley he was hurt, and Wadley observed that Waller was bleeding. Wadley attempted to help Waller walk away from the area and observed at this point that Waller was "bleeding bad." Wadley tried to help Waller walk to a hospital. At some point, Waller was unable to walk any further. Waller went to the ground at 132 South Graham, where police and emergency medical personnel later found him.... The police later showed Wadley a photographic array, where he identified McCary's photograph.

Trial Court Opinion, 4/4/11, at 4-5. Waller remained in the hospital from May 27, 2005 to July 6, 2005. After being transferred to Kane Hospital, Waller remained unconscious and non-responsive. Waller died from his injuries on December 22, 2005. An autopsy disclosed that Waller had sustained a stab wound to his neck, just below his right ear. Waller died as a result of anoxic brain injury, secondary to cardiac arrest, resulting from the stab wound to his neck.

Super. Ct. Direct App. Op., ECF No. 23-1 at 172-73.

The Superior Court also recited some additional facts relevant to the present matter in its opinion affirming the denial of post-conviction relief under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. § 9541 et seq.

Pertinent to this appeal, McCary had twice been committed to Western Psychiatric Institute and Clinic (“WPIC”), both of which occurred within one month of the incident at issue.3 Trial counsel requested the records three days before trial began on January 15, 2009, but he did not receive the documents until January 20, 2009. One day later, which was the last day of the bench trial, the court found McCary guilty of first-degree murder. The court then sentenced McCary to the mandatory term of life imprisonment without the possibility of parole.

[3] The first was an involuntary commitment that occurred from April 21, 2005 to April 28, 2005. The second was a voluntary commitment from May 23, 2005, to May 26, 2005. See Amended Petition for Relied [,s zc] Pursuant to the Post Conviction Relief Act, 11/9/2015, at Appendix Cl-13 and El-11. The discharge of the later commitment was against medical advice and occurred within 24 hours of the assault.

Com, v. McCary, No. 101 WDA 2019,2020 WL 41924, at * 1 and n.3 (Pa. Super. Ct. Jan. 3,2020) (footnote 3 as in the original).

Petitioner timely filed a notice of direct appeal on May 14, 2009, represented by trial counsel. ECF No. 23-1 at 33-36. During the course of the appeal, Petitioner filed a pro se motion seeking remand and the appointment of new counsel, or leave to proceed pro se on September 9, 2010. Id. at 71. On September 16, 2010, the Superior Court granted the motion, and ordered the Court of Common Pleas to hold a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), in order to determine whether Petitioner's request to proceed pro se -was knowing, intelligent, and voluntary. ECF No. 23-1 at 73.

According to the record, it appears that a Grazier hearing was held on December 16, 2010 before Judge Cashman,^[2] at which the following exchange took place.

THE COURT: Mr. McCary, I have a motion for appointment of a new director [.szc] of counsel and a second motion filed by - - is it your desire to have new counsel appointed for you in connection with your direct appeal?

THE DEFENDANT: Yes, sir. Can I please have new appellate counsel, sir? I don't know enough about the law to represent myself, and, sir, can I please have new - -

THE COURT: I just want to get it clear. You don't want to represent yourself.

THE DEFENDANT: I don't know enough about the law. I'm mentally ill and currently in a mental health unit at the county jail, sir. Can I please have a new appellate counsel?

Grazier Hr'g Tr. dated Dec. 16, 2010, at 2-3. The trial court granted prior trial counsel leave to withdraw, and appointed the Allegheny County public defender to represent Petitioner on direct appeal. ECFNo. 23-1 at 78.

On direct appeal, Petitioner raised the following claim:

WAS THE EVIDENCE INSUFFICIENT TO ESTABLISH THAT MR. MCCARY WAS THE PERPETRATOR OF THE INCIDENT IN QUESTION, AND THAT THE PERPETRATOR OF THE INCIDENT IN QUESTION COMMITTED A WILLFUL, DELIBERATE AND PREMEDITATED KILLING?

Id. at 105. The trial court parsed this stated claim as two distinct sufficiency of the evidence claims - the first that the prosecution had failed to establish that Petitioner was the individual who killed the victim, and the second that the prosecution had failed to establish the specific intent to kill necessary for a finding of first-degree murder. Id. at 92. The trial court opined that the evidence presented at trial was sufficient to convict Petitioner on both bases. Id. at 95-97.

The Superior Court denied Petitioner's direct appeal and affirmed his conviction and sentence on June 4, 2012. Id. at 172. As to Petitioner's identity, it held that Wadley's testimony was sufficient to identify Petitioner as the man who stabbed the victim. Id. at 175-76. As to specific intent, the Superior Court adopted the trial court's reasoning that Wadley's testimony regarding seeing a “silver gleaming object prior to hearing two pops,” followed by evidence of “an enormous loss of blood sustained by [the victim]” demonstrated that Petitioner used a deadly weapon on a vital part of the victim's body, which is sufficient to establish the specific intent to kill under Pennsylvania law. Id. at 177.

Petitioner sought leave to appeal from the Pennsylvania Supreme Court on December 19, 2011. Id., at 179. Allocatur was denied on May 14, 2012. Id., at 180 and 230. The record does not indicate that Petitioner filed a petition for writ of certiorari with the United States Supreme Court. Accordingly, his conviction became final on August 13, 2012 - the deadline for doing so. U.S. Sup. Ct. R. 13.

However on July 13, 2012, Petitioner filed a pro se PCRA petition.^[3] ECF No. 23-1 at 231 and 238. Petitioner filed an amended pro se PCRA petition on November, 27, 2012. Id. at 239, 245 and 260. Counsel was appointed, and the prosecution was ordered to show good cause why a hearing should not be...