PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS

PURSUANT TO 28 U.S.C. § 2254 AND INCORPORATED MEMORANDUM OF LAW

1. COMES NOW Petitioner, DEREK RUSSEL JONES, a person incarcerated in the Commonwealth of Pennsylvania pursuant to a judgment of conviction and sentence thereon, by and on his own behalf, files this Petition and Incorporated Memorandum of Law In Support Thereof. The contents and claims proffered by Petitioner in his filing, pro se, are hereby incorporated by reference and in addition, Petitioner alleges as follows:

• Petitioner is currently incarcerated within the Commonwealth of Pennsylvania Department of Corrections, serving three consecutive sentences pursuant to a judgment and sentence entered in the Court of Common Pleas of Allegheny County, the Hon. Kevin G. Sasinoski, J. presiding (the “trial court”), under Case # CP-02-CR-0000266-2003 and CP-02-CR-0001438-2003. He is currently in custody at the ########## State Correctional Institution, located within the Commonwealth of Pennsylvania and under the jurisdiction of the U.S. District Court for the Western District of Pennsylvania.

• Petitioner has exhausted all of his state appeals.

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• There are no other petitions or appeals pending in any state court or Federal court relating to the judgment under attack herein.

PROCEDURAL HISTORY

• Petitioner was charged with one (1) count of criminal homicide, in violation of 18 Pa.C.S.A. § 2501, one (1) count of persons not to possess, use, manufacture, control, sell or transfer firearms, in violation of 18 Pa.C.S.A. § 6105, one (1) count of carrying a firearm without a license, in violation of 18 Pa.C.S.A. § 6106, and three (3) counts of aggravated assault, in violation of 18 Pa.C.S.A. § 2702. Petitioner was represented by Robert Foreman, Esq. during the proceedings of the criminal matter. On October 22, 2003, on advice of Robert Foreman, Petitioner pled nolo contendere to one count of criminal homicide. Following the plea, a degree-of-guilt hearing was conducted and guilt was graded as third-degree murder. Petitioner was remanded pending sentencing. On December 10, 2003, Petitioner was sentenced to serve a consecutive sentence of (1) twenty to forty years for third degree murder, (2) ten to twenty years for 1^st degree aggravated assault, and (3) twelve to twenty-four months for person not to possess a firearm and possession of a firearm without a license.

• Petitioner filed timely appeal, challenging the evidence an charges against him alike. On October 24, 2006, the Superior Court gave its determination of the appeal in affirmation of the sentence by the Trial Court. (Dckt. No. 80 WDA 2003).

• A timely Petition for Allowance of Appeal to the Supreme Court of Pennsylvania was filed. The Petition was denied December April 8, 2007 (Dckt. No. 61 WAL 2006).

• On May 12, 2008, Petitioner filed a petition pursuant to the Commonwealth’s Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq. On June 5, 2011, the same was dismissed. Petitioner filed a pro se Notice of Appeal on July 12, 2011. The Appeal was never withdrawn or discontinued, and Petitioner filed another PCRA petition on August 14, 2014.

• Petitioner, through Attorney Coffey, picked up and proceeded with the unheard appeal. The trial court filed his opinion on June 10, 2009. The same was denied by the superior court affirming the decision of the trial court. The Petitioner continues to remain in custody.

STATEMENT OF FACTS

1. The facts of the underlying case are summarized as follows and are from the trial court’s recitation of facts as presented in its conclusions in denying Petitioner’s arguments challenging the sufficiency of evidence from his conviction:

On December 15, 2002, three (3) men, including Petitioner, entered Big Dawg’s bar in the Beechview section of Pittsburg and proceeded to play pool, at approximately 11:00 pm moments later, an argument was heard by Timothy Fritz, a patron of Big Dawg’s that night.

One of the persons identified as being involved in the heated argument was the Petitioner. However, the argument was broken up and the arguing parties separated. The Petitioner exited the building and later returned when a second argument began. During this second argument, a gun was discharged by an unknown person.

Petitioner admitted to detective Dennis Logan that he heard discharge. Petitioner also admitted he reacted to the discharge and pulled out his firearm and discharged a single gunshot in the general direction of the victims. The Petitioner then exited the venue. The Petitioner did not confirm his discharge having connected with any of the victims.

STANDARD OF REVIEW

1. To prevail under a motion for habeas corpus challenging the decision of the state,

a petitioner seeking federal review of his conviction must demonstrate that the state court’s adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established U.S. Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. 28 U.S.C. § 2254(d) (2); Williams v. Taylor, 529 U.S. 362,

375-76 (2000).

1. The “contrary to” clause of section 2254(d)(1) is violated if the state court reaches

a result opposite to the one reached by the U.S. Supreme Court on the same question of law or

arrives at a result opposite to the one reached by the U.S. Supreme Court on a “materially

indistinguishable” set of facts. Williams, 529 U.S. at 405-06. An “unreasonable application” of

Supreme Court law occurs if the state court identifies the correct rule of law but applies that

principle to the facts of the petitioner’s case in an unreasonable way.  Id. at 413.

1. “Evaluating whether a rule application was unreasonable requires considering the

rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

1. It is axiomatic that both the United States Constitution and the Pennsylvania constitutions guarantee each defendant in a criminal prosecution the right to the effective assistance of counsel. U.S. Const. Amend. VI, §1; Art. I, §9, Pa. Constit. The fundamental right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive due process of law in an adversarial system of justice. United States v. Cronic, 466 U.S. 648, 658 (1984); Commonwealth v. Pierce, 515 Pa. 153, 165, 527 A.2d 973, 979 (Pa. 1987)(“The right to assistance of competent counsel at trial … is a critical element of the panoply of rights encompassed in the concept of a fair trial.”)

1. The United States Supreme Court has held that “[t]he benchmark of judging any

claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial [court] cannot be relied on having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). Under the Strickland standard, ineffective assistance of counsel is made out when the defendant shows that (1) trial counsel’s performance was deficient, i.e., that he or she made errors so egregious that they failed to function as the “counsel guaranteed the defendant by the Sixth Amendment,” and (2) the deficient performance prejudiced the defendant enough to deprive him of due process of law. Id. at 687. Specifically, the Court stressed that “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

1. In the criminal defense setting, counsel must be free to fully advocate on his client’s behalf, free from fear of reprisal by the court for advocating what the law allows. Indeed, the United States Supreme Court has indicated that defense counsel is only limited by ethical considerations and the rules of criminal procedure: “[e]thical considerations and rules of court

prevent counsel from making dilatory motions, adducing inadmissible or perjured evidence, or advancing frivolous or improper arguments . . .” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988).

1. A convicted defendant making a claim of ineffective assistance must identify the particular acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. In turn, a court deciding a claim of ineffective assistance of counsel must then judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. Strickland at 690.

The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.

Id. (emphasis added).

• The Pennsylvania Supreme Court has adopted a hybrid standard based upon the clear intention of Strickland. To prevail, a Petitioner must satisfy two components. First, there

must be a determination that the underlying claim is one of “arguable merit” and then counsel’s performance is evaluated for its reasonableness related to the claim. Second, there must be a showing of prejudice as a result of the ineffectiveness. Commonwealth v. Douglas, 537 Pa. 588, 597, 645 A.2d 226, 230 (Pa. 1994), citing Commonwealth v. Pierce, 515 Pa. at 159.

GROUNDS OF UNCONSTITUTIONALITY OF PETITIONER’S

CONVICTION AND SENTENCE

1. THE EVIDENCE AT TRIAL WAS LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR FIRST DEGREE MURDER WHERE THE COMMONWEALTH PRESENTED INSUFFICIENT EVIDENCE TO SHOW THAT PETITONER INTENTIONALLY, WILLFULLY, AND WITH PREMEDITATION KILLED THE VICTIM

• The Due Process Clause of the United States Constitution prohibits the criminal conviction of any person except upon sufficient proof of guilt of every element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970).

• Indeed, it is well-settled that habeas relief is mandated if after viewing the evidence adduced at trial, in the light most favorable to the prosecution, it is found that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979). As Justice Stewart held:

• federal court must entertain a claim by a state prisoner that he or she is being held in “custody in violation of the Constitution or laws or treaties of the United States.” Under the Winship decision, it is clear that a state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim. Thus, assuming that state remedies have been exhausted and that no independent and adequate state ground stands as a bar, it follows that such a claim is cognizable in a federal habeas corpus proceeding.

Jackson, 443 U.S. at 321 (internal citations omitted) (emphasis added).

• Accordingly, in a habeas corpus proceeding such as this, a claim that the Petitioner has been convicted in state court upon insufficient evidence rests on the Due Process

guarantee “that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof – defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson, 443 U.S. at 319.

• In following this guidance, federal courts have consistently held that a defendant’s conviction is constitutionally infirm, and must be vacated if attacked on a federal habeas corpus petition where no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Bowen v. Kemp, 832 F.2d 546 (11th Cir. 1987) (insufficient evidence of mens rea to

support petitioner’s conviction for murder); Joseph v. Coyle, 469 F.3d 441 (6th Cir. 2006) (evidence was insufficient to establish that defendant personally inflicted victim’s fatal stab wound to sustain conviction for aggravated murder).

• For the reasons that follow, it was objectively unreasonable for the Pennsylvania state court to deny Petitioner’s post-conviction motion for relief and it was ineffective for

Petitioner’s appellate counsel not to raise the issue on direct appeal. The Commonwealth did not present sufficient evidence to prove premeditation and that the Commonwealth’s evidence did not conclusively rule out Petitioner’s reasonable hypothesis of innocence. The Jackson standard for reviewing the sufficiency of the evidence in a habeas corpus proceeding must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324, n.16 (indicating that federal courts in reviewing habeas petitions that allege insufficiency of the evidence avoid intrusions upon state power to define criminal offenses by referencing “the substantive elements of the criminal offense as defined by state law”).

• In this case, the state law at issue is section 18 Pa.C.S. §2501 and 18 Pa.C.S. §2503, Pennsylvania Code, which provide for criminal homicide and voluntary manslaughter, respectively.

• In this case, the evidence at trial demonstrates Petitioner did not discharge his firearm with intent to kill or cause harm. The evidence at trial demonstrated that the shots fired were in response to the Petitioner hearing the discharge of a gunshot and placing him in fear. Petitioner never intended to use the weapon inflict grievous bodily harm. The Petitioner only shot one shot in the general direction of the victims in reaction to the first shot discharged by an unknown person.

• The evidence at trial also demonstrates there was no connection demonstrating the Petitioner’s discharge of weapon as the sole cause of the victim’s death. Testimony by the investigating officer, detective Dennis Logan, confirms several shell casings at the scene. 

• The Commonwealth’s evidence on the critical element of intent was entirely circumstantial. The most it could prove malicious intention of the Petitioner to discharge the weapon. Testimony by detective Logan confirms the Petitioner did not respond but instead reacted to the first discharge. In reaction, Petitioner fired a single shot and did not discharge any other shots. Instead the Petitioner immediately exited the venue.
• Witness testimonies confirm several gunshots being discharged at the scene. Furthermore, the evidence confirms several gunshots at the scene. The Petitioner fired a single shot and no more. Petitioner had no intent to cause harm and in fact was reacting to a perceived threat. There was no evidence that Petitioner discharge was the direct cause of the victim’s death.

• In every criminal case, the prosecution is required to prove beyond a reasonable doubt each specific element of the charged offense. The trial court, in considering Petitioner’s

motion for judgment of acquittal, rejected this argument finding the Petitioner guilty of third degree murder. Here, the evidence was insufficient to prove intent to kill as defined by Pennsylvania law. The Commonwealth did not prove Petitioner willfully and intentionally and with premeditation killed the victim. As a result, his conviction and sentence are in violation of his Sixth Amendment rights to due process and must be vacated.

II. PETITIONER RECEIVED CONSTITUTIONALLY DEFICIENT ASSISTANCE OF COUNSEL WHERE TRIAL CONSEL FAILED TO PROPERLY COMMUNICATE A PLEA OFFER TO PETITIONER REQUEST SPECIFIC LIMITING INSTRUCTIONS CONCERNING KEY WITNESSES PRESENTED BY THE COMMONWEALTH AND WHERE THERE IS NO REASONABLE BASIS FOR TRIAL COUNSEL’S FAILURE AND WHERE PETITIONER WAS PREJUDICED AS A RESULT

• Under Strickland v. Washington, 466 U.S. 668 (1984), it is well-settled that, in order to establish a claim for ineffective assistance of counsel at trial, a convicted Petitioner must demonstrate that his counsel’s performance (1) “fell below an objective standard of reasonableness,”  at 688, and (2) that counsel’s deficient performance prejudiced the defense. Id. at 693. As explained by the Supreme Court in Strickland, “[t]he benchmarks for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”.
• The ultimate focus of the Strickland inquiry is always on the “fundamental fairness of the proceeding whose result is being challenged.” Id. at 696.
• In evaluating whether counsel’s performance fell below an objective standard of reasonableness, the Court must examine “whether counsel’s assistance was reasonable considering all the circumstances.” Id. at 688. The reasonableness analysis must be viewed against the backdrop of counsel’s most basic duties, which include a duty to consult with the Petitioner on important decisions, to keep the Petitioner informed of important developments in the prosecution and “to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. An obvious means of ensuring such a reliable adversarial testing process is for counsel to investigate the facts and circumstances of the case. If counsel develops trial strategy “after thorough investigation of law and facts relevant to plausible options,” such strategy is “virtually unchallengeable.” Id. at 690-91. On the other hand, “strategic choices made after less than complete investigation” are only reasonable “to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91. In sum, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691.
• Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. Missouri v. Frye, 132 S.Ct. 1399 (2012); Padilla v. Kentucky, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010). During plea negotiations defendants are “entitled to the

effective assistance of competent counsel.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct.

1441, 25 L.Ed.2d 763 (1970).

• To  establish  Strickland  prejudice  a  defendant  must  “show  that  there  is  a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice. Missouri v. Frye, 132 S.Ct. 1399 (noting that Strickland ‘s inquiry, as applied to advice with respect to plea bargains, turns on “whether ‘the result of the proceeding would have been different’ ” (quoting Strickland, supra, at 694, 104 S.Ct. 2052)); see also Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (“The …

‘prejudice,’ requirement … focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process”).

• Here, Petitioner argues trial counsel failed to fully and properly convey terms of the plea from the Commonwealth and that had trial counsel done so accurately and completely, Petitioner would have rejected that offer. Trial counsel persuaded and convinced Petitioner to accept the offer without advising on the consequences with particular emphasis on the charge of murder. Yet considering the evidence before the trial court, no link was established between the Petitioner’s firearm and the slug determined to be the cause of death.

• Petitioner was denied effective assistance of counsel in violation of his Sixth Amendment rights and was prejudiced as a result of proceeding to the plea bargain. Had Petitioner been properly advised of the plea offer, he would not have accepted it. He was denied to right to consider a plea offer and was denied the constitutional right to effective counsel on both the substance of the offer as well as the advantages and disadvantages of taking a plea versus going to trial. Petitioner’s sentence and conviction should be vacated and he should be given the opportunity and benefit of hearing before a jury.

CONCLUSION AND RELIEF REQUESTED

• For the reasons set forth above, this Court should grant the petition herein in its

entirety.

WHEREFORE, Petitioner prays that this Court:

• Issue a Writ of Habeas Corpus ordering that the Petitioner be released from his confinement upon a personal recognizance bond; or in the alternative,

• Issue a Writ of Habeas Corpus ordering that the Petitioner be released from his confinement unless the judgment of conviction and sentence are vacated and he be restored to pre-trial status; and,
• (C) Enjoin Respondents from executing Petitioner’s sentence;

• Grant a hearing on this matter;

• Award Petitioner costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

• Grant any such other and further relief as this Court may deem just, proper and equitable.

Dated:

Respectfully Submitted,

Derek Russel Jones

Pro Se

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