Robertson v. Pa Attorney Gen.

JAMEY C. ROBERTSON, Petitioner v. PA ATTORNEY GENERAL, Respondent

No. 4:CV-10-0833

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

October 3, 2014

(Judge Nealon)

MEMORANDUM

Petitioner, Jamey Robertson, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He attacks a conviction imposed by the Court of Common Pleas for Lebanon County, Pennsylvania. (Doc. 1). For the reasons that follow, the petition will be denied.

I. Background

A portion of the factual and procedural background of this case has been extracted from the Pennsylvania Superior Court's September 16, 2009, Memorandum Opinion affirming the denial of Robertson's petition under Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541, et seq. ("PCRA"). See (Doc. 43-26 at 2-7, Memorandum Opinion).

On October 29, 1999, Appellant was charged with criminal attempt to commit homicide, aggravated assault, robbery, possession of an instrument of crime, and recklessly endangering another person as a result of a brutal attack of Giovanni Amato at the latter's pizza shopon October 17, 1999. The pertinent facts have been summarized as follows:

The Commonwealth presented testimony of Amato describing the attack upon his person. Mr. Amato testified that on the night of October 17, 1999, he was working at his pizza shop. At approximately 8:30 p.m., he was standing at the front counter of the shop near the register when, without warning, he was stabbed in the face from behind. As he attempted to turn around, Mr. Amato was stabbed for the second time in the stomach. After the second knife stab, the assailant demanded money. Mr. Amato tried to open the register, but had difficulty doing so. The assailant then attempted to slash Amato again. Because Mr. Amato drew back from the slashing knife, he sustained only a superficial cut on his neck. Mr. Amato then was able to open the register and the assailant grabbed several twenty-dollar bills from inside the register and fled. Mr. Amato could not provide a detailed description of the person who attacked and robbed him. All that Mr. Amato could provide was that the assailant was male, around six feet tall, dark skinned, and wore a mask and dark jacket.

Lebanon City Police Detectives Daniel Wright and Christopher Rutter also testified on behalf of the Commonwealth. Detective Wright testified that on October 20, 1999, he was notified that anonymous phone calls relating to the case were received at Amato's pizza shop and the police station. The calls were traced to a payphone at Linda's Corner Store. Upon visiting that location, Detective Wright found Shanita Allen and Lori Zechman on the phone with police. Zechman mentioned Appellant's name in connection with the robbery and that he lived in a local apartment, known as 1001 Spruce Park. Detective Wright later ran a driver's license check and verified that Appellant lived at 1001 Spruce Park and was

approximately six feet, one inches in height. Id. at 110. Detective Rutter testified that on October 29, a search warrant was obtained for 1001 Spruce Park. Id. at 124. During the search, several jackets were taken into custody, including a New York Giants football jacket. Id.

Police Officer Bord, on behalf of the Commonwealth, testified that preliminary tests on the Giants jacket indicated that it was stained with blood. The Commonwealth also called Pamela Call, a forensic scientist with the Pennsylvania State Police's DNA Laboratory. Call testified that blood samples from the victim, Amato, matched the DNA from blood stains on the Giants jacket.

Finally, the Commonwealth presented testimony from Michael Allen at trial. Allen testified that on the night in question, Appellant had been at Allen's home, approximately two blocks from Amato's pizza shop, along with Allen's two brothers and another friend. The group was drinking alcohol and smoking marijuana in the basement. At some point, Allen's brothers and the friend left the residence for various reasons, and only Allen and Appellant remained. Appellant said, "Look, I will be back." Allen was not sure of the exact time Appellant left, but believed it was around 7:00 or 8:00 p.m. Allen testified that Appellant was gone for possibly as long as an hour. Appellant returned with money rolled up in a jacket. When questioned about where the money came from, Appellant repeatedly said, "Don't worry about it."

Allen testified that it was odd for Appellant to have that much money. Allen also identified the jacket that he had seen Appellant carrying the night of the robbery as the same Giants jacket that had been found at Appellant's home with bloodstains on it. About two days later, after Allen was questioned by the police, he went to speak with

Appellant outside of 1001 Spruce Park. Appellant again told Allen not to worry about it, but he also told Allen not to say anything about that night. Allen told Appellant that the police were looking for him and to get out of town. That was the last time Allen saw Appellant.

Commonwealth v. Robertson, 874 A.2d 1200, 1205-06 (Pa. Super. 2005) (citations omitted). Appellant became a fugitive and was not apprehended by law enforcement until several years later. After being apprehended, on August 6, 2003, a jury found Appellant guilty of all counts. On September 17, 2003, the trial court imposed an aggregate sentence of thirty to sixty years imprisonment.

The trial court denied Appellant's timely-filed post-sentence motions on February 18, 2004. Appellant then filed a timely appeal. On April 26, 2005, this Court affirmed Appellant's judgment of sentence via a published opinion. Robertson, supra. Appellant did not file a petition for allowance of appeal with our Supreme Court.

On April 28, 2006, Robertson filed a pro se PCRA petition alleging various claims of ineffectiveness with regard to his trial and appellate counsel. On June 8, 2006, he filed a motion to amend his petition, which was granted by the PCRA court. Following the appointment of PCRA counsel, Appellant was permitted to file a second amended PCRA petition, which raised seventeen claims of ineffective assistance of prior counsel. On October 9, 2007, the PCRA court conducted an evidentiary hearing. At the conclusion of this proceeding, the court issued an order denying certain claims raised by the Appellant, while taking the remaining claims under advisement. Thereafter, Appellant filed an application for supersedeas and a motion to proceed pro se. The PCRA court granted the stay, and scheduled a hearing on the motion. That hearing, however, was cancelled when Appellant was not transported to the courthouse from the state correctional facility. On June 30, 2008, after the parties had filed briefs, the PCRA court issued an order and opinion denying the remaining PCRA claims.

Appellant filed a pro se notice of appeal on July 17, 2008, and PCRA

counsel filed a notice of appeal on Appellant's behalf one day later. On July 28, 2008, the PCRA court requested a Rule 1925(b) statement of errors complained of an appeal, Pa.R.A.P. 1925(b), and, on August 7, 2008, PCRA counsel complied. On August 19, 2008, this Court quashed Appellant's pro se appeal as duplicative of the appeal filed by PCRA counsel. Approximately one month later, Appellant filed another motion to proceed pro se. On November 4, 2008, this Court issued an order directing the PCRA court to conduct a Grazier¹ hearing. The PCRA court conducted the hearing on November 18, 2008, after which the court concluded that Appellant's waiver of counsel met the applicable constitutional standards. Thereafter, PCRA counsel was permitted to withdraw. On December 3, 2008, Appellant filed a supplemental Rule 1925(b) statement, and the PCRA court filed its Rule 1925(a) opinion on December 16, 2008.

Appellant raises the following issues on appeal:

WHETHER THE PCRA COURT'S DISMISSAL OF [APPELLANT'S] PCRA IS SUPPORTED BY THE RECORD OR OTHERWISE FREE OF LEGAL ERROR WHEN APPELLANT'S COUNSEL WERE INEFFECTIVE AT TRIAL, DIRECT APPEAL, (AND DURING THE PCRA STAGES). OF THIS INSTANT CASE.

WHETHER THE INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL STAGE, THE DIRECT APPEAL STAGE AND PCRA STAGE VIOLATED THE [Strickland v. Washington, 466 U.S. 668 (1984)] STANDARD AND THE 6^th & 14^th [AMENDMENTS] TO THE U.S. CONSTITUTION.

WHETHER [THE] PCRA COURT ERRED WHEN IT FAILED TO FIND THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW

[APPELLANT'S] MOTHER, WHICH WOULD HAVE REVEALED THAT SHE COULD TESTIFY THAT APPELLANT LIVED WITH HER IN NEW JERSEY ON THE DATE OF THE OFFENSE AND TRIAL COUNSEL[']S FAILURE TO INTERVIEW CAUSED A VIOLATION OF SEQUESTRATION AND A VIOLATION TO THE HEARSAY RULE.

WHETHER THE PCRA COURT ERRED WHEN IT FAILED TO FIND THAT TRIAL COUNSEL WAS INEFFECTIVE IN THAT THERE WAS A CONFLICT OF INTEREST WHICH HE FAILED TO REVEAL TO APPELLANT, WHICH COUNSEL ONLY [MET] APPELLANT AT THE PRELIMINARY HEARING AND WAS UNPREPARED.

WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE SEARCH WARRANT ON THE BASIS THAT THE COMMONWEALTH DID NOT HAVE PROBABLE CAUSE TO OBTAIN SUCH A WARRANT BECAUSE APPELLANT DID NOT FIT THE DESCRIPTION AND INFORMANT'S [SIC] GAVE INCONSISTENT STATEMENTS.

WHETHER [THE] PCRA COURT ERRED WHEN IT FAILED TO FIND THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT THE TESTIMONY OF CRAIG McCARGO, AND FOR FAILING TO SEEK A WARRANT FOR HIS ARREST AFTER HE FAIL [ED] TO APPEAR AT TRIAL, DESPITE HAVING BEEN DULY SUBPOENAED.

WHETHER APPELLANT['S] PCRA COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE ISSUES REQUESTED BY APPELLANT IN LETTER TO AMEND PCRA DATED SEPTEMBER 27, 2006.

WHETHER APPELLANT[']S PCRA COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT EVIDENCE ON [SIC] THE CONTRARY TO TRIAL COUNSELSS] TESTIMONY THAT MR. McCARGO WAS A COMMONWEALTH WITNESS AND POLICE REPORTS TO THAT MATTER.

Appellant's Brief at 5-6.

See (Doc. 43-26 at 2-7, Memorandum Opinion).

On July 16, 2009, the Commonwealth filed a responsive brief in the Pennsylvania Superior Court. See (Doc....