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18D0463P.Pdf IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PHILLIP MCCOY, Petitioner, CIVIL ACTION v. NO. 17-2162 SUPERINTENDENT SMITH, et al., Respondents. PAPPERT, J. July 5, 2018 MEMORANDUM Phillip McCoy filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and a “Motion for Stay & Abeyance to Reserve for Amendment.” (ECF Nos. 1, 8, 17.) Magistrate Judge Heffley subsequently issued a Report and Recommendation recommending the Petition and Motion be denied. (R&R, ECF No. 26.) After the Court granted McCoy’s request for an extension of time to file objections, he filed a 65-page memorandum with numerous objections rehashing, for the most part, the same arguments that he presented in his Petition. (Objections, ECF Nos. 31, 31-1.) Upon consideration of the record, Magistrate Judge Heffley’s R&R, and McCoy’s objections thereto, the Court adopts the R&R and denies McCoy’s Petition and Motion. I A Angel Carrion was working as a manager at Platinum Club in Philadelphia on February 3, 2008. (Trial Tr., Sept. 23, 2009, Vol. 1, 36:12–15.) At approximately 1:40 a.m., while Carrion was with a friend at the bar, a woman told Carrion that someone 1 hit her while she was in the restroom. Carrion told a bouncer to escort the purported assailant and her group of female friends out of the club. (Id. 36–37.) The assailant’s male friends—including McCoy—remained in the club. (Id. 38–39.) McCoy demanded that Carrion reimburse him for the $10 McCoy paid as a cover charge to enter the club. (Id.) A dispute ensued between the two and McCoy was escorted out of the club. (Id. 39–42.) About fifteen minutes later, Carrion’s friend wanted to leave for the night so Carrion walked her to the first floor exit which was located at the intersection of Torresdale Avenue and Paul Street. (Id. 43–44.) As Carrion unlocked the glass door to let his friend leave, Carrion saw McCoy and his friends walking southbound on Torresdale Avenue. Once McCoy saw Carrion standing in the doorway, McCoy turned away from his friends and walked towards Carrion. McCoy, screaming at Carrion, threatened to “light this [ ] bar up.” While McCoy continued to shout obscenities and threats, Carrion remained inside, locked the glass door, turned his back on McCoy and began to walk away. As soon as Carrion turned away, he heard two or three “pops” and was shot twice in the back. (Id. 45–51.) Although Carrion did not see McCoy pull the trigger, he was “positive” that McCoy was the man yelling at and threatening him seconds before he was shot. (Id. 51.) At McCoy’s trial in the Philadelphia Court of Common Pleas, Police Officer Erica Coss, who was off-duty and at the Platinum Club on the night of the incident, testified that she had known McCoy for several years through her cousin, whom he was dating. (Trial Tr., Sept. 22, 2009, Vol. 1, 46–48.) Coss witnessed Carrion and McCoy’s argument that night and described McCoy as angry, upset, and argumentative. (Id. 2 55–58.) She further testified that once she left the club, she saw McCoy on Torresdale Avenue. (Id. 62.) Coss explained that McCoy’s friends were telling him to leave but McCoy continued to yell obscenities at someone inside the club. (Id.) She then heard gunshots and took cover because she didn’t know where the shots were coming from. (Id. 63–66.) B On September 25, 2009, the jury convicted McCoy of attempted murder (18 Pa. Const. Stat. § 2502), aggravated assault (id. § 2702), carrying a firearm without a license (id. § 6106), and possessing an instrument of crime (id. § 907). Commonwealth v. McCoy, CP-51-CR-008542-2008, at *1 (Pa. Ct. Com. Pl. Phila. Cnty. Apr. 11, 2011). On November 13, 2009, the court sentenced McCoy to fifteen to thirty years’ imprisonment for attempted murder, three and a half to seven years’ imprisonment for carrying a firearm without a license, and two and a half to five years’ imprisonment for possessing an instrument of crime, all to run concurrently.1 Id. McCoy filed a direct appeal contending that the evidence was insufficient to support his conviction and the Superior Court of Pennsylvania affirmed the verdicts on May 23, 2012. Commonwealth v. McCoy, CP-51-CR-0008542-2008, at *1 (Pa. Ct. Com. Pl. Phila. Cnty. Apr. 29, 2016). McCoy did not seek review from the Pennsylvania Supreme Court. He then filed a petition under Pennsylvania’s Post Conviction Relief Act (“PCRA”) on October 22, 2012. Id. at *2. Counsel was appointed to represent McCoy, but after investigating McCoy’s claims, filed a no merit brief and a petition to withdraw pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988). 1 The court did not impose a sentence on the aggravated assault conviction because it merged with the attempted murder conviction. 3 The PCRA court allowed McCoy’s counsel to withdraw and on June 30, 2015 denied McCoy’s petition. Id. McCoy appealed to the Superior Court and raised four issues: 1) whether trial counsel was ineffective for failing to contact potential alibi witnesses; 2) whether trial counsel was ineffective for failing to object to prejudicial remarks in the prosecutor’s closing argument; 3) whether trial counsel was ineffective for failing to file certain post trial and post sentence motions; and 4) whether PCRA counsel was ineffective. Commonwealth v. McCoy, No. 2115 EDA 2015 (Pa. Super. Ct. Feb. 28, 2017). The Superior Court denied McCoy’s appeal on February 28, 2017. Id. McCoy filed his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on May 5, 2017 and amended the Petition on October 25, 2017 (Am. Pet., ECF No. 17). McCoy asserts twelve arguments which he claims entitle him to habeas relief. These arguments include, among others, challenges to the bill of information, the constitutionality of his sentence and several ineffective assistance of counsel claims. II A McCoy asserts ten objections to Magistrate Judge Heffley’s R&R, many of which contain sub-arguments. “[F]or the portion of the R&R to which no objection [is] made, the Court reviews the R&R for clear error.”2 Harris v. Mahally, No. 14-2879, 2016 WL 4440337, at *4 (E.D. Pa. Aug. 22, 2016). The Court reviews de novo the specific 2 When reviewing those portions of the report to which no objection is made, the Court should, as a matter of good practice, “satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory committee notes; see also Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). For the portions of the R&R to which McCoy has not objected, no clear error appears on the face of the record and the Court accordingly accepts Judge Heffley’s recommendation. 4 portions of the R&R to which a party objects. See 28 U.S.C. § 636(b)(1); see also Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). B The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits federal courts’ power to grant writs of habeas corpus. Under the Act, a federal court may not grant a writ “with respect to any claim that was adjudicated on the merits in State court proceedings [unless the state court’s decision] was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d); see also Berghuis v. Thompkins, 560 U.S. 370, 380 (2010). A state court ruling is “contrary to” clearly established Federal law if the court applies a rule that contradicts Supreme Court precedent or if the court confronts a set of facts that are materially indistinguishable from a Supreme Court decision but arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406–07 (2000). A state court ruling “is considered an ‘unreasonable application’ if the state court unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal principle to a new context, or unreasonably refuses to extend the principle to a new context where it should apply.” McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009). 5 C Before a federal court can grant a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. Lambert v. United States, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. § 2254(b)(1)(A)). To satisfy the exhaustion requirement, the petitioner must “fairly present” his claims to the state court; if he does not, the claims become procedurally defaulted and he may not raise them in federal court. Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005). Federal courts are also prohibited from reviewing a petitioner’s habeas claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and is adequate to support the judgment.
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