Clark v. Mason et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUSTIN CLARK,
Petitioner,
v.
BERNADETTE MASON, et al.,
Respondents.
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Civil No. 1:22-CV-01469
Judge Jennifer P. Wilson
ORDER
Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by Justin Clark (“Petitioner”). (Doc. 1.) For the reasons set forth
below, the court will deny the petition for writ of habeas corpus, deny a
certification of appealability, and close the case.
PROCEDURAL H ISTORY
Petitioner is a self-represented litigant who filed a petition for writ of habeas
corpus seeking relief from his state court judgment with this court in September of
2022. (Doc. 1.) Petitioner was convicted of murder, attempted murder, and
carrying a firearm without a license. Commonwealth v. Clark, CP-22-CR-
0002723-2013 (C.P. Dauphin County). The procedural history in the state court
was summarized by the Superior Court of Pennsylvania as follows:
On June 23, 2014, the trial court sentenced [Petitioner] to concurrent
sentences of life in prison without parole (“LWOP”) on the homicide
conviction, 20 to 40 years in prison for attempted murder, and three to
six years in prison for the firearms violation. 	[The Superior Court]
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affirmed [Petitioner]’s judgment of sentence, Commonwealth v. Clark,
No. 2005 MDA 2014 (Pa. Super. filed July 21, 2015), and [the
Pennsylvania] 	Supreme 	Court 	denied 	[Petitioner]’s 	petition 	for
allowance of appeal.1 Commonwealth v. Clark, 132 A.3d 456 (Pa.
2016).
On March 1, 2017, [Petitioner] filed a timely pro se [Post-Conviction
Relief Act (“PCRA”)] petition. Appointed counsel filed a supplemental
petition, 	followed 	by 	a 	motion 	to 	preserve 	a 	challenge 	to 	the
constitutionality of the sentence, in light of the United States Supreme
Court’s January 2016 decision in Montgomery v. Louisiana, 136 S.Ct.
718 (2016), holding that the prohibition against mandatory LWOP
sentences for juvenile offenders, announced in Miller v. Alabama, 132
S.Ct. 2455 (2012), was retroactive on state collateral review.
The PCRA court issued an order preserving the sentencing issue.
Following a hearing on July 17, 2018, the court resentenced [Petitioner]
to a term of 45 years to life in prison for the murder conviction,
concurrent with sentences of 20 to 40 years for attempted murder and
three to six years for the firearms violation.
On July 26, 2018, [Petitioner]’s counsel filed a post-sentence motion
and, subsequently, a notice of appeal from his judgment of sentence.
The 	appeal 	was 	later 	dismissed 	for 	failure 	to 	file 	a 	brief.
Commonwealth v. Clark, No. 1668 MDA 2018 (Pa. Super. filed March
28, 2019).
In 	addition 	to 	filing 	a 	post-sentence 	motion 	on 	July 	26, 	2018,
[Petitioner] filed an amended PCRA petition. By order entered August
13, 2018, the PCRA court dismissed [Petitioner]’s PCRA petition and
[Petitioner] appealed. 	On appeal to [the Superior Court], we vacated
the PCRA court’s August 13, 2018 order, finding that [Petitioner] was
denied his rule-based right to counsel on his timely first PCRA petition.
See Commonwealth v. Clark, No. 1509 MDA 2018 (Pa. Super. filed
September 9, 2019). 	We remanded the case for appointment of new
counsel, with instruction for counsel to file an amended petition or
proceed in accordance with Turner/Finley and seek to withdraw as
counsel. Id.
1 The Supreme Court of Pennsylvania denied the appeal on March 1, 2016.
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Following remand, Wendy L. F. Grella, Esquire, was appointed as
counsel. Attorney Grella subsequently filed a 158-paragraph motion to
withdraw in which she provided the procedural background, addressed
each of the six claims [Petitioner] asserted in his PCRA petition, and
explained why each claim lacked merit. In addition to averring that she
had carefully reviewed the record before concluding [Petitioner] was
not entitled to relief, counsel indicated that she provided a letter to
[Petitioner] outlining her reasons for seeking to withdraw. 	Motion to
Withdraw, 2/24/20, at ¶ 63.
By order entered February 27, 2020, the PCRA court granted counsel’s
motion 	to 	withdraw 	and 	provided 	notice 	in 	accordance 	with
Pa.R.Crim.P. 907 of its intention to dismiss [Petitioner]’s petition. On
March 16, 2020, [Petitioner] filed a detailed response. On May 1, 2020,
following review of the “complete record . . . and [Petitioner’s]
response” to the Rule 907 Notice, the PCRA court denied [Petitioner]’s
request for relief, noting there was “no genuine issue concerning any
material fact, and [Petitioner] is not entitled to post conviction relief.”
Order, 5/1/20, at 1.
Commonwealth v. Clark, 262 A.3d 544, 2021 WL 3674323, at *1–2 (Pa. Super.
Aug. 19, 2021).
On August 19, 2021, the Superior Court affirmed the PCRA court’s denial
of relief stating: “[b]ecause we find no abuse of discretion in the PCRA court’s
denial of relief, or in its imposition of a sentence of 45 years to life for
[Petitioner]’s first-degree murder conviction, we shall affirm the May 1, 2020
order denying Appellant’s PCRA petition.” Id. On June 7, 2022, Petitioner’s
petition for allowance of appeal was denied by the Supreme Court of Pennsylvania.
Commonwealth v. Clark, 279 A.3d 1177 (Jun. 7, 2022).
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On September 20, 2022, this court received and docketed the instant § 2254
petition initiating this action. (Doc. 1.) The petition states that the document was
placed in the prison mailing system on September 7, 2022. (Id., p. 18.) 2
On February 17, 2023, Respondents filed a response asserting that the
petition is untimely and barred by 28 U.S.C. § 2244(d). (Doc. 12.) But
Respondents’ calculation of the statute of limitations under § 2244(d) failed to
account for the July 17, 2018 resentencing. Therefore, the court ordered the
sentencing transcript and judgement and sentencing documents be filed with the
court to determine if the resentencing was limited to specific counts or if it was a
de novo resentencing. (Doc. 18.) On January 2, 2024, the court entered an order
finding that the July 17, 2018 resentencing was a de novo resentencing and applied
to all counts. (Doc. 23.) Therefore, court determined that the petition was timely
and ordered briefing on its merits. (Id.)
On January 31, 2024, Respondent filed a merits response to the petition.
(Doc. 24.) On October 11, 2024, Petitioner filed a motion to supplement the
petition seeking to supplement his petition in light of recent transcripts from three
2022 hearings concerning the former prosecutor Assistant District Attorney John
Baer’s conduct in dealing with witnesses and co-conspirators. (Docs. 27, 28.)
However, Petitioner did not include a proposed supplemental petition with his
2 For ease of reference, the court uses the page numbers from the CM/ECF header.
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filings. On February 11, 2025, Petitioner filed a motion to stay the proceedings to
allow him the opportunity to exhaust the claims he wished to raise through the
motion to supplement. (Doc. 37.)
On September 24, 2025, the court entered an order denying the motion to
supplement the petition and the motion for a stay. (Doc. 41.) The court granted
Petitioner a sixty-day period in which to renew his motion to supplement the
petition with the required proposed supplemental petition. (Id.) Nothing was
received within that sixty-day period. Therefore, the court will proceed to address
the merits of the petition.
VENUE
Under 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus under
Section 2254 can be filed in either the district where the petitioner is in custody, or
in the district where the petitioner was convicted and sentenced. 28 U.S.C. §
2241(d). Petitioner was convicted and sentenced in Dauphin County,
Pennsylvania, which is located in this district. Therefore, venue in this district is
proper.
DISCUSSION
As stated above, Petitioner has petitioned the court pursuant to the
provisions of 28 U.S.C. § 2254, challenging his state court conviction and sentence
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that was imposed by the Court of Common Pleas of Dauphin County,
Pennsylvania. (Doc. 1.)
Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who
were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran,
247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414,
146 (1998)). The exercise of restraint by a federal court in reviewing and granting
habeas relief is appropriate due to considerations of comity and federalism. See
Engle v. Isaac, 456 U.S. 107 (1982). “The States possess primary authority for
defining and enforcing the criminal law. In criminal trials they also hold the initial
responsibility for vindicating constitutional rights. Federal intrusions into state
criminal trials frustrate both the States’ sovereign power and their good-faith
attempts to honor constitutional law.” Id. States also have a recognized interest in
the finality of convictions that have survived direct review within the state court
system. See Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).
A district court may entertain an application for a writ of habeas corpus filed
by a person in state custody “only on the ground that he is in custody in violation
of the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). If a claim
presented in a § 2254 petition has been adjudicated on the merits in state court
proceedings, habeas relief cannot be granted unless:
the adjudication of the claim – (1) resulted in a decision that was
contrary 	to, 	or 	involved 	an 	unreasonable 	application 	of, 	clearly
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established [f]ederal law, as determined by the Supreme Court of the
United States; or (2) 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.
Id. § 2254(d).
Here, Petitioner provides the following four challenges to his conviction and
sentence: (1) the sentencing court violated his Sixth, Eighth, and Fourteenth
Amendment rights by imposing a greater sentence than legislatively authorized
under 18 Pa.C.S. § 1102.1(a); (2) his Sixth and Fourteenth Amendment due
process rights were violated by the Commonwealth’s intentional concealment of
material evidence and this concealment predicated the subornation of perjury by
the Commonwealth’s “sole” witness, Johnathan Ramsey; (3) his Sixth and
Fourteenth Amendment rights were violated by trial counsel’s failure to request
jury instructions for a lesser degree of homicide in light of evidence received at
trial; and (4) his Fourth, Sixth, and Fourteenth Amendment rights were violated by
the police’s illegal search and monitoring of his cell phone without a warrant or
consent. (Doc. 1.) The court will address each challenge in turn.
A. Sentence Duration
Petitioner alleges that the sentencing court violated his Sixth, Eighth, and
Fourteenth Amendment rights by imposing a greater sentence than legislatively
authorized under 18 Pa.C.S. § 1102.1(a). (Doc. 1, p. 5; Doc. 4, pp. 14–22.)
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Respondents argue that this challenge is unexhausted and procedurally defaulted.
(Doc. 24, p. 16.)
A federal court may not grant a writ of habeas corpus on a claim brought by
an individual in custody pursuant to a state court judgment unless: (1) “the
applicant has exhausted the remedies available in the courts of the State;” (2)
“there is an absence of available State corrective process;” or (3) “circumstances
exist that render such process ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1)(A), (b)(1)(B); see also Wilkerson v. Sup’t Fayette SCI, 871
F.3d 221, 227 (3d Cir. 2017). Section 2254(c) provides that “[a]n applicant shall
not be deemed to have exhausted the remedies available in the courts of the State,
within the meaning of this section, if he has the right under the law of the State to
raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).
Thus, when a state prisoner has failed to exhaust the legal remedies available to
him in the state courts, federal courts will typically refuse to entertain a petition for
writ of habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). It is the
petitioner who bears the burden of establishing the exhaustion requirement has
been satisfied. See Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000).
“[T]he exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
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To satisfy the exhaustion requirement, a petitioner must invoke “one complete
round” of the applicable state’s appellate review process, thereby giving the courts
of that state “one full opportunity” to resolve any issues relevant to such claims.
Id. at 845 (holding that a petitioner must present every claim raised in the federal
petition to the state’s trial court, intermediate appellate court, and highest court
before exhaustion is considered satisfied). To “fairly present” a claim, the
petitioner must present his or her “factual and legal substance to the state courts in
a manner that puts them on notice that a federal claim is being asserted.”
McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999).
The failure to properly present claims to the state court generally results in a
procedural default. Lines, 208 F.3d at 150–60. “When a claim is not exhausted
because it has not been ‘fairly presented’ to the state courts, but state procedural
rules bar the applicant from seeking further relief in state courts, the exhaustion
requirement is satisfied because there is ‘an absence of available State corrective
process.’” 28 U.S.C. § 2254(b). In such cases, however, applicants are considered
to have procedurally defaulted their claims and federal courts may not consider the
merits of such claims “unless the applicant establishes ‘cause and prejudice’ or a
‘fundamental miscarriage of justice’ to excuse his or her default.” McCandless,
172 F.3d at 260 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
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In his PCRA petition, Petitioner argued that the trial court “abused its
discretion upon resentencing by imposing a sentence of 45 years to life for his
first-degree murder conviction.” Clark, 2021 WL 3674323, at *4–5; Doc. 24-7. In
doing so, Petitioner has not alleged that the trial court’s sentence was contrary to,
or involved an unreasonable application of, clearly established federal law.
Instead, the arguments presented before the state courts were concerning the abuse
of discretion by the state court.
The exhaustion doctrine “requires that habeas petitioners ‘fairly present’
federal claims to state courts before bringing them into federal court.” Dreher v.
Pinchak, 61 Fed. Appx. 800, 803 (3d Cir. 2003) (citing Duncan v. Henry, 513 U.S.
364, 366, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995)), cert. denied, 540 U.S. 888
(2003); see Keller v. Larkins, 251 F.3d 408, 413 (3d Cir.2001) (citing Picard v.
Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)), cert. denied,
534 U.S. 973 (2001). “It is not sufficient that all the facts necessary to support the
federal claim were before the state courts.” Keller, 251 F.3d at 413 (quoting
Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982)); see
Dreher, 61 Fed. Appx. at 803 (citing Anderson ). “[M]ere similarity of claims is
insufficient to exhaust.” Keller, 251 F.3d at 413 (quoting Duncan, 513 U.S. at
366); see Dreher, 61 Fed. Appx. at 803 (citing Duncan ).
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“If state courts are to be given the opportunity to correct alleged violations
of its prisoners’ federal rights, they must surely be alerted to the fact that the
prisoners are asserting claims under the United States Constitution.” Duncan, 513
U.S. at 365–66; see Dreher, 61 Fed. Appx. at 803 (citing Duncan ). Thus, as the
Supreme Court explained, “[i]f a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the due process of law
guaranteed by the Fourteenth Amendment, he must say so, not only in federal
court, but in state court.” Duncan, 513 U.S. at 365–66; see Dreher, 61 Fed. Appx.
at 803 (citing Duncan ).
Here, Petitioner did not raise any claim that the duration of the sentence
violated federal law before the state court. Therefore, this challenge is
procedurally defaulted. Petitioner has not asserted any cause and prejudice or a
fundamental miscarriage of justice to excuse his default. As such, the court will
deny the petition for writ of habeas corpus with respect to this challenge.
B. Brady Violation
Petitioner alleges that his Sixth and Fourteenth Amendment due process
rights were violated by the Commonwealth’s international concealment of material
evidence and this concealment predicated the subornation of perjury by the
Commonwealth’s “sole” witness, Johnathan Ramsey. (Doc. 1, pp. 7–8; Doc. 4, pp.
23–32.) Specifically, Petitioner argues that at the trial, Mr. Ramsey testified
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against him and stated that he was not offered or agreed to receive anything for his
cooperation. (Doc. 1, pp. 7–8; Doc. 4, pp. 26–27.) Subsequently, Mr. Ramsey
received only a five-to-ten-year sentence of incarceration following Petitioner’s
trial. (Doc. 1, pp. 7–8; Doc. 4, p. 28.) Petitioner alleges that Mr. Ramsey perjured
himself by stating that there was no favorable treatment for his cooperation with
authorities. (Doc. 1, pp. 7–8.) Essentially, Petitioner is raising a violation under
Brady v. Maryland, 373 U.S. 83 (1963).
The Superior Court of Pennsylvania addressed this issue:
In his fourth issue, Appellant contends the PCRA court erred for failing
to find a Brady/Napue violation for the Commonwealth’s failure to
disclose “impeachment evidence.” At issue is the testimony of witness
Jonathan Ramsey, the driver of the vehicle from which Appellant fired
a gun into a crowd, killing innocent bystander, Rob Burris. Appellant
claims after-discovered evidence indicating that Ramsey, who also was
charged with murder and attempted murder, received consideration for
his perjured testimony at Appellant’s trial. However, as PCRA counsel
explains in the Motion to Withdraw, Ramsey was not offered any type
of consideration for his testimony. Motion to Withdraw, 2/24/20, at ¶
95 (citations to notes of trial testimony omitted).
As counsel recognizes, to obtain relief based on after-discovered
evidence, an appellant must demonstrate that the evidence satisfies a
four-part test, one prong of which is that the evidence will not be used
solely to impeach the witness. 	Id. at 98 (citing Commonwealth v.
Foreman, 	55 	A.3d 	532, 	537 	(Pa. 	Super. 	2012), 	in 	turn 	citing
Commonwealth v. Pagan, [5]97 Pa. [69, 105] (Pa. 2008)). Because the
“evidence” in question would be used solely to impeach the credibility
of Ramsey, Appellant does not satisfy the criteria of Foreman and
Pagan, and Appellant is not entitled to relief. 	The PCRA court
determined Appellant’s fourth issue was meritless for the reasons set
forth in the Motion to Withdraw. We find no abuse of discretion in that
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conclusion. 	Appellant 	is 	not 	entitled 	to 	relief 	based 	on 	“after-
discovered evidence.”
Clark, 2021 WL 3674323, at *6. The four prongs identified in Forman include the
following:
To obtain relief based on after-discovered evidence, [an] appellant must
demonstrate that the evidence: (1) could not have been obtained prior
to the conclusion of the trial by the exercise of reasonable diligence; (2)
is not merely corroborative or cumulative; (3) will not be used solely to
impeach the credibility of a witness; and (4) would likely result in a
different verdict if a new trial were granted.
Foreman, 55 A.3d at 537. Petitioner alleges that this four-prong test was
erroneous. (Doc. 4, p. 30.)
Under federal caselaw, the government violates a defendant’s due process
rights when it suppresses evidence favorable to the defendant that “is material to
guilt or to punishment.” Brady 373 U.S. at 87. So, too, “[w]hen the ‘reliability of
a given witness may well be determinative of guilt or innocence,’ nondisclosure of
evidence affecting credibility falls within” Brady’s purview. Giglio v. United
States, 405 U.S. 150, 154 (1972). Therefore, at first blush, it appears that
petitioner has established that the law as applied by the Commonwealth is
inconsistent with the federal standard.
However, the Third Circuit has held that for a defendant to prove a violation
of Brady and/or Giglio, a defendant must show: “(1) evidence was suppressed; (2)
the evidence was favorable to the defense; and (3) the evidence was material to
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guilt or punishment.” United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006). It
is this materiality element at issue in this case.
In his petition and brief, Petitioner alleges that Jonathan Ramsey (“Ramsey”)
perjured himself by giving testimony against Petitioner, stating that he was not
offered any consideration for his testimony, and then receiving his own sentence
that was so minimal that the only explanation is that he was given consideration for
his testimony against Petitioner. (Docs. 1, 4.) As evidence of this consideration,
Petitioner attached Ramsey’s sentencing order and docket sheet showing that he
pled guilty to a single count of third degree murder and was sentenced to costs, a
fine of $2,500.00, and incarceration of five to ten years with credit for time served
and that the criminal attempt murder charge was withdrawn by the prosecution.
(Docs. 4-1, 4-2.) He argues that such a light sentence in contrast to his sentence
can only be the result of consideration for the testimony entered against Petitioner
at Petitioner’s trial. (Doc. 4.)
Respondent sets forth all the additional evidence that pointed to Petitioner’s
guilt to demonstrate that the impeachment of Ramsey’s testimony is not material in
this action. (Doc. 24, pp. 22–24.) This includes the testimony of Aja Lewis, an
eyewitness who testified that Petitioner was a passenger in a car in the
neighborhood of the shooting minutes before the murder, the testimony of Devacio
McGown, whose recorded statement on the night of the shooting was played at the
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jury trial stating that he was with Ramsey and the Petitioner after the shooting and
Petitioner admitted to being the shooter, and cell phone records demonstrating that
Petitioner’s burner cell was present at the scene of the shooting at the time of the
shooting. (Id.) The court reviewed the transcript of the jury trial and confirmed
that all the evidence presented in Respondent’s briefing was in the record. (Doc.
34-2, pp. 36, 53, 84–89, 107–112.)
In Giglio, the Supreme Court clearly found a due process violation where the
government did not reveal impeachment evidence about “the only witness linking
petitioner with the crime[,]” on whose testimony “the Government’s case depended
almost entirely.” 405 U.S. at 151, 154–55. That is simply not the case in the
present action. There was other corroborating evidence in addition to Ramsey’s
testimony that makes Giglio inapplicable to this case.
Furthermore, a review of the jury trial transcript demonstrates that Ramsey
admitted that he spoke with his lawyer who told him that his cooperation would be
taken into consideration in his own criminal case. (Doc. 34-2, p. 53.) He stated
that his testimony was motivated by the hope of a benefit for his cooperation and
making things right by the family of the victim. (Id.) Therefore, the jury was told
that Ramsey was hoping for a reduced sentence in exchange for his testimony.
Based on a review of the jury trial transcript, the court determines that
Petitioner has not established that the impeachment evidence was material to guilt
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or punishment and this is not the same scenario that the Supreme Court considered
in Giglio, where the testimony was the only link between the Petitioner and the
crime. Therefore, while the Commonwealth’s standard in Foreman appears to be
inconsistent with the federal standard in Giglio, the application of the Foreman
standard in this case did not result in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law. The court will deny
the petition with respect to this challenge.
C. Charge for Lesser Degree of Homicide
Petitioner alleges that his Sixth and Fourteen Amendment rights were
violated by trial counsel’s failure to request jury instructions for a lesser degree of
homicide in light of evidence received at trial. (Doc. 1, pp. 10–11.)
The Superior Court found the challenge lacked merit:
In her motion to withdraw, counsel acknowledges that while the issue
of requesting a jury instruction on lesser degrees of homicide has been
asserted as the basis for an ineffectiveness claim, “no relief can be
granted in the absence of some evidence existing in the record to
support the lesser degree of homicide.” Motion to Withdraw, 2/24/20,
at ¶ 82 (citing Commonwealth v. Carter, 466 A.2d 1328 (Pa. 1983) and
Commonwealth v. Ulatoski, 407 A.2d 32 (Pa. Super. 1979)). However,
Appellant contends that the failure to request a lesser-degree charge not
only deprived him of due process, but also precluded the jury “from
exercising its mercy dispensing power attached to optional verdicts ...
result[ing] in his conviction of first-degree murder, punishable by death
or life without parole.” 	Appellant’s Brief at 25. 	“[I]f a charge was
given on third-degree murder, ... and the jury had found appellant guilty
of that degree of homicide, appellant would not and could not receive a
sentence of LWOP.” Id.
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Here, Appellant testified he had nothing to do with the homicide.
Because “the defense’s theory of the case was that [Appellant] did not
commit the offense, ... it is not ineffective for trial counsel to argue for
the jury to acquit [Appellant] on 1 st degree murder. Trial counsel had
a reasonable basis for not requesting additional jury instructions.”
Motion to Withdraw, 2/24/20, at ¶ 87-88. 	We agree with the PCRA
court’s conclusion that the issue is meritless and Appellant is not
entitled to relief.
Clark, 2021 WL 3674323, at *4.
Petitioner’s argument that the trial court erred when it declined to charge the
jury on the lesser-included offense lacks merit. The trial court’s decision not to
give the instruction was neither contrary to, nor an unreasonable application of,
Supreme Court precedent. “Federal courts reviewing habeas claims cannot
‘reexamine state court determinations on state-law questions.’” Priester v.
Vaughn, 382 F.3d 394, 402 (3d Cir. 2005) (quoting Estelle v. McGuire, 502 U.S.
62, 67-68 (1991)). The only pertinent inquiry is whether the state court’s decision
to omit a particular jury instruction was contrary to, or an unreasonable application
of, United States Supreme Court precedent. See 28 U.S.C. § 2254(d). In order to
meet this burden, a petitioner must either “point to a federal requirement that jury
instructions on the elements of an offense . . . must include particular provisions”
or show that the “instructions deprived him of a defense which federal law
provided to him.” Johnson v. Rosemeyer, 117 F.3d 104, 110 (3d Cir. 1997).
The United States Supreme Court has held that an instruction on a lesser-
included offense is required in capital cases where the evidence warrants such an
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instruction. See Beck v. Alabama, 447 U.S. 625, 627 (1980). Notwithstanding, the
Supreme Court specifically reserved the question of whether an instruction on a
lesser-included offense is similarly required in non-capital cases. See id. at 638
n.14; see also Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (“[o]utside of the
capital context, we have never said that the possibility of a jury misapplying state
law gives rise to federal constitutional error”)
Here, the PCRA court concluded that since Petitioner’s defense was that he
was not involved in the murder, there was no evidence presented to support a lesser
charge. This was affirmed by the Superior Court. Clark, 2021 WL 3674323. In
this non-capital case, the state court’s proceedings did not involve an unreasonable
application of federal law. The court will deny the petition on this challenge.
D. Cell Phone Monitoring
Petitioner alleges that his Fourth, Sixth, and Fourteen Amendments rights
were violated by the police’s illegal search and monitoring of his cell phone
without a warrant or consent. (Doc. 1, pp. 12–13.)
The Superior Court found that this challenge was without merit:
In his fifth and final issue, Appellant argues PCRA court error for
failing to vacate Appellant’s conviction in light of a new constitutional
right established by Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018),
and claims his cell phones were illegally searched without a warrant.
However, testimony at trial established that while the arresting officer
observed Appellant’s two phones ringing and vibrating while Appellant
was in custody, the officer did not access either device. Motion to
Withdraw, 2/24/20, at ¶¶ 147-154. Unlike Fulton, the officer did not
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indicate that he opened, accessed, or used either device. Further, the
Commonwealth secured a search warrant for the information that was
obtained from the phones and presented at trial, and trial counsel
stipulated to the admission of the records obtained by means of the
warrant. 	Id. at ¶¶ 156-157. 	Appellant is not entitled to relief on his
fifth issue.
Clark, 2021 WL 3674323, at *6.
Initially, the court notes that while Petitioner’s Fourth Amendment argument
focuses on a state case, his PCRA briefing relies heavily on the federal case of
Riley v. California, 573 U.S. 373 (2014), which concerns the Fourth Amendment
of the United States Constitution, thus alerting the state court that Petitioner was
bringing a federal claim as to the search of his cell phones. (Doc. 24-6, pp. 172–
73, 242.) Petitioner’s argument is that Officer Corkle testified that he accessed the
phones prior to getting a search warrant. (Doc. 4, pp. 41–42.) However, a review
of the full transcript reveals that Officer Corkle testified that he asked Petitioner
about the phones and asked if he could check them, “I did that to see if there was
any record in there of who he was via text message, e-mail, anything like that, that
would show a name of the owner.” (Doc. 24-2, p. 104.) Officer Corkle offered
this statement as an explanation as to why he asked to access the cell phones, not
as an explanation for why he accessed the cell phones. Officer Corkle then goes
on to state that he obtained Petitioner’s identity after arriving at the police station,
and not from the contents of the phones. (Id.) Once Petitioner was identified,
Officer Corkle contacted the Harrisburg City Police because Petitioner was listed
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as a person of interest in a homicide in Harrisburg. (Id.) Two detectives arrived
who took custody of Petitioner and the two phones. (Id., pp. 104–05.) On cross-
examination, Officer Corkle stated that Petitioner refused him access to the phones.
(Id., p. 106.) At no point did Officer Corkle state that he accessed the phones.
Therefore, the court finds that Petitioner has not established that the cell phones
were searched without a warrant. As such, the PCRA court’s decision is not
contrary to established federal law and did not result from a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. The court will deny the petition for writ
of habeas corpus with respect to this challenge as well.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a
certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. at 327. “When
the district court denies a habeas petition on procedural grounds without reaching
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the prisoner’s underlying constitutional claim, a COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, Petitioner
has not made a substantial showing of the denial of a constitutional right.
Additionally, jurists of reason would not find the procedural disposition of this
case debatable. Accordingly, no COA will be issued.
CONCLUSION
For the reasons set forth above, the court will deny the petition for writ of
habeas corpus and close the case. A certificate of appealability will be denied.
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Date: March 16, 2026
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