IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARLON CARTER : CIVIL ACTION

:

v. :

:

BEN VARNER, et al. : NO. 02-4381

REPORT AND RECOMMENDATION

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE February , 2003

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by

an individual currently incarcerated at the State Correctional Institution - Smithfield at

Huntingdon, Pennsylvania. For the reasons that follow, I recommend that the petition be denied. 

FACTS AND PROCEDURAL HISTORY:

On December 5, 1996, after a jury trial before the Honorable Gary Glazer, Carter was

convicted of first degree murder and possession of an instrument of crime, (PIC). The charges

arose from the June 1, 1995 shooting of William Fields in the 500 block of South 60th Street in

Philadelphia. Fields later died as a result of the multiple gunshot wounds he suffered. 

Judge Glazer sentenced Carter to life imprisonment for the murder conviction and a consecutive

sentence of 12 - 24 months’ imprisonment for the PIC conviction. 

On direct appeal, Carter presented the following claims:

1. Counsel was ineffective for failing to object to a portion of the Commonwealth’s

opening statement and a witness’s testimony that Carter was involved in selling

drugs;

2. Counsel had no reasonable basis for choosing the particular defense course he chose;

3. The trial court improperly dismissed a juror during trial;

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4. The trial court erred in allowing a witness to testify regarding a threat to his life if he 

testified against Carter;

5. The trial court erred in failing to grant a mistrial after the prosecution asked a witness

about Carter’s prior firearms conviction.

On January 26, 1999, the Superior Court affirmed the judgment of sentence. Commonwealth v.

Carter, 3078 Phila. 1997. Carter did not seek discretionary review in the Pennsylvania Supreme

Court.

On January 13, 2000, Carter filed a pro se petition pursuant to Pennsylvania's Post

Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551. Appointed counsel filed an

amended petition, claiming:

1. Trial counsel was ineffective for failing to object to the court’s charge on reasonable

doubt;

2. Trial counsel was ineffective for failing to call Officer Mathis as an exculpatory

witness.

On January 30, 2001, Judge Glazer denied the petition. On appeal, the Superior Court affirmed

the decision of the PCRA Court on January 9, 2002. Commonwealth v. Carter, 578 EDA 2001. 

The Supreme Court of Pennsylvania denied allocatur on June 19, 2002. Commonwealth v.

Carter, 803 A.2d 733 (Pa. 2002)(Table). 

On July 1, 2002, Carter filed this petition for habeas corpus, claiming:

1. The court erred in permitting evidence of Carter’s other crimes;

2. The court erred in permitting evidence of prior inadmissible convictions;

3. The court erred in permitting evidence of alleged threats made against a

Commonwealth witness;

4. The court erred in dismissing a juror during trial;

5. Trial counsel/appellate counsel were ineffective for failing to object to/preserve the

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1Pennsylvania Supreme Court Administrative Rule 218, which relieves a habeas petition

of the requirement that he file for allocatur to exhaust his state court remedies, was not adopted

until May 9, 2000. The Third Circuit has held that this rule does not apply retroactively. See

Wenger v. Frank, 266 F.3d 218 (3d Cir. 2001). Hence, at the time of Carter’s direct appeal, he

was required to file for allocatur to exhaust his claims.

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issue of the court’s charge on reasonable doubt;

6. Trial counsel/appellate counsel were ineffective for failing to call/preserve the issue of

the failure to call Officer Mattis [sic] to undermine the testimony of

Commonwealth witness, Archie Moore.

DISCUSSION:

An application for a writ of habeas corpus can only be granted if “the applicant

has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). 

Here, Carter properly presented his claims of appellate counsel’s ineffectiveness to the

Pennsylvania appellate courts. They are, therefore, ripe for review. The remainder of Carter’s

claims, however, are procedurally defaulted. 

When the petitioner’s failure to comply with state procedural rules results in his inability

to properly present his claim in the state courts, the claim is considered procedurally defaulted.

[I]f a defendant fails to comply with state procedural rules and is

barred from litigating a particular constitutional claim in state

court, the claim can be considered on federal habeas only if the

defendant shows cause for the default and actual prejudice

resulting therefrom.

Teague v. Lane, 489 U.S. 288, 308 (1988)(plurality opinion); see also Wainwright v. Sykes, 433

U.S. 72 (1976). Here, Carter’s failure to seek discretionary review from the Pennsylvania

Supreme Court when the Superior Court denied his direct appeal results in a default of the issues

presented in that appeal.1 At this point, Carter has no avenue through which to present these

claims to the state supreme court. Any attempt to file a PCRA petition would result in a finding

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2Ordinarily, the same counsel representing the defendant at trial represents him on direct

appeal. Hence, the courts do not expect direct appellate counsel to allege his own

ineffectiveness. However, in Carter’s case, he obtained new counsel on direct appeal. Hence, his

direct appeal was the first opportunity he had to allege trial counsel’s ineffectiveness and a

failure to do so results in a waiver of the claims. Commonwealth v. Carter, 578 EDA 2001, at 3 

4

that the petition was untimely and, in any event, the claims presented have been previously

litigated. See 42 Pa.C.S.A. §§ 9545(b); 9544(a). Therefore, we will only consider the claims

upon a showing of cause and prejudice, or a fundamental miscarriage of justice. Carter has failed

to allege, let alone establish either. He has failed to explain his failure to seek allocatur and has

not supplemented his claims with a “colorable showing of factual innocence” required to

establish a fundamental miscarriage of justice. McCleskey v. Zant, 499 U.S. 467, 495

(1991)(citing Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Therefore, we will not address

Carter’s first four claims of error.

Carter’s fifth and sixth claims include layered claims of ineffective assistance of counsel. 

To the extent Carter alleges trial counsel’s ineffectiveness, the claims are procedurally defaulted. 

The Superior Court refused to address the merits of the allegations of trial counsel’s

ineffectiveness because Carter failed to present these claims on direct appeal.2 However, since a

discussion of appellate counsel’s ineffectiveness for failing to present claims of trial counsel’s

ineffectiveness necessarily requires a discussion of the underlying issues of error, we will not

stand on ceremony.

In his fifth claim, Carter alleges that counsel was ineffective for failing to challenge the

court’s instruction on reasonable doubt. The state courts found that there was no basis upon

which counsel could object because the charge was correct. Commonwealth v. Carter, 578 EDA

2001, at 6-7. Habeas relief is available only if the state court’s determination results in a decision

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5

which is “contrary to” or involved “an unreasonable application” of clearly established federal

law, or was based on an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Federal

law dictates that a jury instruction is unconstitutional if there is a reasonable likelihood that the

jury understood it to allow conviction without proof beyond a reasonable doubt. Tyler v. Cain,

533 U.S. 656 (2001)(citing Cage v. Louisiana, 498 U.S. 39 (1990)); Boyde v. California, 494

U.S. 370, 380 (1990). In making this decision, the federal court must look at the jury instruction

as a whole. Cupp v. Naughton, 414 U.S. 141, 147 (1991).

During its charge to the jury, the court instructed them as follows:

A reasonable doubt is the type of doubt that would cause a reasonably careful and

sensible person to pause or to hesitate or to refrain from acting upon a matter of

the highest importance in his or her life. 

(N.T. 12/4/96, 62). The trial court repeated this definition when asked for a definition by the

jury. Reviewing the charge in light of the relevant Supreme Court precedent, we find no error. 

This charge did not reduce the Commonwealth’s burden in any respect. 

The Petitioner draws the court’s attention to Cage v. Louisianna, supra, and Victor v.

Nebraska, 511 U.S. 1 (1994). In Cage, the Supreme Court condemned a charge that defined

reasonable doubt as requiring not just reasonable uncertainty, but “grave uncertainty.” The Court

found that “the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a

higher degree of doubt than is required for acquittal under the reasonable doubt standard.” Cage,

at 41. Such is not the case, here. Additionally, in Victor, the other case cited by the Petitioner,

the Court specifically approved of language similar to that given here: “a doubt that would cause

a reasonable person to hesitate to act.” Victor, at 20 (citing Holland v. United States, 348 U.S.

121, 140 (1954)). Moreover, we do not believe that the inclusion of the language “of the highest

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importance of his or her life” changes our conclusion. In Holland, the Supreme Court approved

of a charge that included a similar modifier in defining a reasonable doubt. 

[The trial judge] defined [reasonable doubt] as “the kind of doubt . . . which you

folks in the more serious and important affairs of your own lives might be willing

to act upon.” We think this section of the charge should have been in terms of the

kind of doubt that would make a person hesitate to act, rather than the kind on

which he would be willing to act. But we believe that the instruction as given was

not of the type that could mislead the jury into finding no reasonable doubt when

in fact there was some. A definition of a doubt as something the jury would act

upon would seem to create confusion rather than misapprehension. Attempts to

explain the term reasonable doubt do not usually result in making it any clearer to

the minds of the jury and we feel that, taken as a whole, the instructions correctly

conveyed the concept of reasonable doubt to the jury. 

Holland, at 140. 

In our case, the trial court defined reasonable doubt as something the jury would hesitate

to act upon, as suggested by the Court, using the modifier accepted by the Court in Holland. 

Hence we find no error. 

Furthermore, the Supreme Court cautioned in both Cupp and Victor that the challenged

charge should not be considered in a vacuum. Rather, it must be considered in the context of the

entire charge. Throughout the charge, the trial court emphasized the burden placed on the

Commonwealth. The jury was instructed that the defendant was presumed innocent, that the fact

that he was arrested could not be considered as evidence of guilt, and that there was no burden on

the defendant to prove his innocence. (N.T. 12/4/96, 61-62). The judge further instructed the

jury that mere suspicion or the fact that maybe the defendant did something is not sufficient to

meet the Commonwealth’s burden. (N.T. 12/4/96, 63). Therefore, we find no error in the

instruction. 

Having found that there was no basis upon which to object to the jury instruction, neither

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trial nor appellate counsel cannot be found ineffective. Strickland v. Washington, 466 U.S. 668

(1984), requires that, in order to be considered ineffective, counsel’s performance must deficient

and the deficient performance must prejudice the defense. Id. at 687. Since the court found no

error in the instruction, Carter cannot establish either prong of Strickland. See also Werts v.

Vaughn, 228 F.3d 178, 203 (3d Cir. 2000)(“counsel cannot be deemed ineffective for failing to

raise a meritless claim”). 

Finally, Carter presents a layered claim of counsel ineffectiveness based on trial counsel’s

failure to call police officer Mathis to impeach the testimony of Archie Moore. At trial, Archie

Moore identified Carter as the man who shot William Fields. (N.T. 12/2/96, 139). He also

stated that he had known Carter for many years, growing up in the same neighborhood and

attending the same school. (N.T. 12/2/96, 138-39). At the time of the shooting, Officer

Cassandra Mathis interviewed Moore. Despite Moore’s admission that he knew Carter, Officer

Mathis’s investigation notes indicate that when Moore was interviewed, he gave a description of

the shooter, but did not identify him by name. He merely said the gunman was in his teens and

wearing “a hoodie.” (Investigation Record dated 6/2/95). 

Carter contends that counsel was ineffective for failing to call Officer Mathis to impeach

Moore’s identification testimony. Since Moore knew Carter from the neighborhood, he should

have been able to give Officer Mathis his name at the time of the interview. Carter argues that

questioning Officer Mathis about her interview notes would have impeached Moore’s

identification testimony. 

As previously stated, in order to be found ineffective, counsel’s representation must have

been deficient and that deficiency must have prejudiced the defense. Strickland 466 U.S. at 687. 

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Here, the state courts concluded that Carter could not establish that counsel’s failure to call

Officer Mathis prejudiced the defense. Commonwealth v. Carter, 578 EDA 2001, at 9. We

agree. During cross examination, Moore admitted that he had been questioned by the police at

the scene and admitted that he failed to identify Carter by name, despite the fact that he had

known Carter for 14 or 15 years. (N.T. 12/2/96, 171-72). 

Q: Police officers came on the scene and got out of the car and start

[sic] asking did anybody see anything; is that right?

A: That’s right.

Q: And you didn’t tell any of those police officers that Fugi or Marlon Carter

was the person you saw doing the shooting; is that right?

A: Right then and there?

Q: That’s right, right then and there.

A: No, I wasn’t worried about that. . . . 

Q: Did you tell anybody there at that time right after it happened that the

person who just shot your friend was a man named Fugi [Marlon Carter],

somebody you have known for 14, 15 years?

A: No. 

(N.T. 12/2/96, 171-72). Counsel continued with this line of impeachment: 

Q: You said as soon as the shots were fired police came on the scene and

[Carter] was seen running as soon as the police came on the block?

A: Yes.

Q: He was right there in front of them, in other words?

A: No, not right in front of them.

Q: Or on the sidewalk running?

A: Yeah, he was on the sidewalk running.

Q: When the police got out of the car did you say there goes the guy right

there, running on the sidewalk there?

A: I told them which way he went.

(N.T. 12/2/96, 172).

Counsel also focused the jury’s attention on this inconsistency during his closing

argument.

[W]hen something has just happened and you have just seen it, and by now you

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know that according to [Moore] the person who was shot was his best friend, if he

saw such a traumatic event, wouldn’t you say to the officer Well, the person who

did it is this description? The person who did it has this name. The person who

did the crime lives around here. The person who did this crime is somebody I

know because I have seen this person on numerous occasions and I have seen this

person at this place. These are things you would say if you really saw something

and you are really concerned about something that happened. But he doesn’t say

that.

(N.T. 12/4/96, 17). 

After reviewing the trial transcript, we find it clear that counsel vigorously attacked

Moore’s identification testimony both during cross examination and in his closing argument. 

Having Moore admit that he failed to identify Carter at the scene of the crime when he was

interviewed was exactly the information that could have been elicited from Officer Mathis. 

There was nothing more to be gained by the officer’s testimony once the witness admitted the

inconsistency. Hence, Carter has failed to establish that failing to call Officer Mathis prejudiced

his defense in any way. Therefore, neither trial nor appellate counsel can be considered

ineffective.

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Therefore, I make the following:

R E C O M M E N D A T I O N

AND NOW, this day of , 2002, IT IS

RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be

DENIED. There has been no substantial showing of the denial of a constitutional right

requiring the issuance of a certificate of appealability.

 

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

Case 2:02-cv-04381-HH Document 15 Filed 02/13/2003 Page 10 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARLON CARTER : CIVIL ACTION

:

v. :

:

BEN VARNER, et al. : NO. 02-4381

O R D E R

HERBERT J. HUTTON, J.,

AND NOW, this day of , 2003,

upon careful and independent consideration of the petition for writ of habeas corpus, and

after review of the Report and Recommendation of United States Magistrate Judge Jacob

P. Hart, IT IS ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The petition for a writ of habeas corpus is DENIED.

3. There is no basis for the issuance of a certificate of appealability.

BY THE COURT:

 

HERBERT J. HUTTON, J.

 

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