Nelson v. Overmyer

SHAWVEZ NELSON, a/k/a SHAVEZ HOLDEN¹ v. MICHAEL OVERMYER, ET AL.²

CIVIL ACTION NO. 10-4691

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NOVEMBER 19, 2018

MEMORANDUM

SURRICK, J.

Presently before the Court are Petitioner Shawvez Nelson's pro se³ Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (ECF No. 1), the Report and Recommendations of Magistrate Judge Wells recommending denial of the Petition (R&R, ECF No. 15), and Petitioner's pro se Objections (ECF No. 17) and Supplemental Objections (ECF Nos. 18, 21) to the R&R. For the following reasons, Petitioner's objections are overruled, the R&R is approved and adopted as modified herein, and the Petition is dismissed without an evidentiary hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Pennsylvania Superior Court summarized the facts leading to Petitioner's conviction as follows:

[Petitioner] beat Leonard Campbell (the victim) with his bare hands. The victim sustained serious injuries in the beating, including brain injuries, from which he died three months later. [Petitioner] was tried before a jury in December of 1999 and convicted of third degree murder. On May 1, 2000, the trial court sentenced him to twenty to forty years' imprisonment in a state correctional institution.

(Commw. v. Holden, No. 3367 EDA 2002, slip op. 1 (Pa. Super. Ct. Apr. 15, 2004) ("Direct App. Op."), Answ. to Pet. Ex. A, ECF No. 10-1.)⁴

Petitioner pursued a direct appeal and asserted that: (1) the evidence was insufficient to sustain the murder conviction because there was no evidence of malice; (2) the trial court erred in giving an incomplete jury instruction on the justification defense and in failing to instruct the jury on involuntary manslaughter; and (3) the Commonwealth's closing statement constituted prosecutorial misconduct. (Id. at 2.) The Superior Court rejected each of these arguments and affirmed the judgment of sentence. (Id. at 12.) With regard to the issue of malice, the Superior Court recounted the eyewitness testimony and medical evidence presented at trial and concluded:

The Commonwealth presented sufficient evidence to establish that [Petitioner] continued to mercilessly beat [the victim] about the face and head even after the victim had fallen to the ground and was rendered defenseless. Even after bystanders restrained [Petitioner] on two occasions, [Petitioner] broke free each time and resumed beating the victim with his hands and feet. The evidence also established that the victim was smaller in weight and stature than [Petitioner]. Based on the evidence presented by the Commonwealth, the jury could infer that [Petitioner] acted with malice. In all, the evidence was sufficient to support [Petitioner's] conviction of third degree murder.

(Id. at 2-6 (citations omitted).)

Based on the evidence, the Superior Court also found no error in the trial court's refusal to give an involuntary manslaughter charge. The court reasoned:

The evidence, even when viewed in the light most favorable to [Petitioner], does not support an involuntary manslaughter charge. Although [Petitioner] and the victim began fist fighting each other, once the victim was on the ground, motionless and unconscious, [Petitioner] continued to brutally beat him by, inter alia, punching and stomping on his head. Such acts do not tend to establish that the victim's death was an accident caused by [Petitioner's] extreme carelessness. [Petitioner's] argument on this issue is meritless.

(Direct App. Op. 8-10 (citing Commw. v. Soltis, 687 A.2d 1139, 1141 (Pa. Super. Ct. 1996) "To be entitled to an involuntary manslaughter charge, [Petitioner] must point to some evidence that tends to show that he acted recklessly or with gross negligence in causing [the victim's] death.")).) On September 10, 2004, the Pennsylvania Supreme Court denied allocatur. See Commw. v. Holden, 860 A.2d 489 (Pa. 2004) (Table). Petitioner did not seek certiorari to the United States Supreme Court.

On or about June 28, 2005, Petitioner filed a pro se Petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq.⁵ (PCRA Remand Pet., Pet. Mem. Ex. H.) Petitioner's pro se PCRA submissions principally asserted that trial counsel was ineffective for failing to interview, investigate, and call witnesses whose testimony allegedly would have contradicted the Commonwealth's witnesses and supported the defense theory. The court appointed counsel, who filed an Amended PCRA Petition on February 15, 2007. (Answ. to Pet. 2, ECF No. 10.) In the Amended PCRA Petition, counsel asserted an ineffective assistance of trial counsel ("IATC") claim based on counsel's failure to call three witnesses — Rolando "Boo" Hall, Dorian "Nate" Miller, and Edward Wallace — whose affidavits indicated that the victim had pepper sprayed Petitioner's face at the beginning of their confrontation. (PCRA Remand Pet. 2-3.) The Amended PCRA Petition argued that this evidence would have established sufficient provocation to support the lesser offense of voluntary manslaughter. (Id. at 3-4.) The Amended PCRA application was dismissed on August 23, 2007. (Id. at 4.)

Petitioner appealed the PCRA dismissal, and his counsel filed an appellate brief on Petitioner's behalf. (Pet. for Remand 4.) While the appeal was pending, Petitioner filed pro se submissions in the Superior Court asserting that his PCRA counsel was ineffective and seeking to represent himself in the PCRA appeal. (Commw. v. Holden, No. 2477 EDA 2007, slip op. 2 (Pa. Super. Ct. Sept. 21, 2009) ("PCRA App. Op."), Answ. to Pet. Ex. B, ECF No. 10-1.) Petitioner's pro se submissions claimed that PCRA counsel was ineffective for failing to pursue all the IATC theories that Petitioner wanted related to trial counsel's failure to investigate, interview, and call witnesses whose testimony Petitioner believed would undermine the testimony of prosecution witnesses.⁶ (PCRA App. Op. 5-6.) The Superior Court remanded the case for a Grazier⁷ hearing, at which the lower court determined that Petitioner's waiver of counsel was knowing, voluntary, and intelligent. (Id.) The Superior Court then allowed Petitioner's counsel to withdraw, struck the appellate brief that counsel had filed, and permitted Petitioner to proceed pro se. (Id.)

Thereafter, Petitioner filed a pro se brief challenging the dismissal of his PCRA Petition on the grounds that: (1) the PCRA court erred in denying the Petition where trial counsel was ineffective for failing to investigate, interview, or call helpful witnesses, (id. at 2-3); (2) PCRA counsel was ineffective for failing to attach the affidavits of Len Coppick and John Stanley to contradict the prosecution's evidence, (id. at 4); and (3) PCRA counsel was ineffective for not arguing that trial counsel was ineffective in failing to call the above-referenced witnesses to challenge the prosecution evidence (id. at 5-6).

Addressing these issues, the Superior Court first found Petitioner's pro se IATC claim to be waived because it was not raised in the PCRA court. (Id. at 3.) The court noted that the counseled Amended PCRA Petition asserted an IATC claim "only with regard to [trial counsel's] failure to call witnesses to establish that the victim sprayed [Petitioner] in the face with mace, therefore provoking the violent assault that followed." (Id.) The Amended Petition did not include Petitioner's pro se IATC theory based on the failure to call witnesses to contradict the testimony of prosecution witnesses. Noting that "[i]ssues not raised in the PCRA court . . . cannot be raised for the first time on appeal," the Superior Court found Petitioner's pro se IATC theory to be waived. (Id. (citing Commw. v. Jones, 815 A.2d 598, 607 (Pa. 2002)).)

The Superior Court then addressed the merits of Petitioner's claims of PCRA counsel ineffectiveness.⁸ Regarding the Coppick and Stanley affidavits, the court held that their omission from the Amended PCRA Petition did not prejudice Petitioner because they were cumulative and contained no additional information beyond that contained in the three affidavits that were included with the Amended PCRA Petition. (Id. at 4-5 (citing Commw. v. O'Bidos, 849 A.2d 243, 249 (Pa. Super. Ct. 2004) (setting forth elements necessary to overcome presumption that counsel was effective)).) Having found that Petitioner was not prejudiced by PCRA counsel's alleged error, the court did not address the other elements necessary to establish ineffective assistance of counsel.⁹

Regarding Petitioner's claim that PCRA counsel was ineffective in handling Petitioner's IATC claim, the Superior Court found the underlying claim to be meritless. (Id. at 6.) The court explained:

[Petitioner] bases this claim on the five affidavits discussed above. We have reviewed these affidavits, and none contains testimony that would contradict the evidence [Petitioner] seeks to undermine. Accordingly, we conclude that there is no merit to the underlying claim, and therefore we will not find PCRA counsel ineffective for not pursuing the same.

(Id. (citing Commw. v. Descar, 798 A.2d 758, 759 (Pa. Super. Ct. 2002) (holding that counsel will not be deemed ineffective for failing to pursue an issue without merit)).)¹⁰

The Superior Court affirmed the dismissal of Petitioner's Amended PCRA Petition. (PCRA App. Op. 6.) The Pennsylvania Supreme Court denied allocator, Commw. v. Holden, 607 Pa. 701 (2010), and Petitioner did not seek certiorari to the United States Supreme Court.

Petitioner subsequently filed the instant habeas Petition asserting that:

(1) trial counsel was ineffective for failing to investigate, interview, and call favorable witnesses ("Claim 1"), (Pet. ¶ 12(A));

(2) the trial court erred by failing to instruct the jury on involuntary manslaughter ("Claim 2"), (Id. ¶ 12(B)); (3) the prosecutor committed misconduct during closing argument ("Claim 3"), (Id. ¶ 12(C)); and

(4) the evidence was insufficient to sustain his third degree

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