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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHRISTOPHER WADE HAMMOND,

Petitioner,

v.

MARILYN BROOKS,

Respondent.

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CIVIL ACTION

NO. 04-5783

Memorandum

YOHN, J. May 29, 2009

Presently before the court is petitioner Christopher Wade Hammond’s motion for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. Hammond was convicted of first-degree murder,

robbery, and theft and was sentenced to consecutive terms of life imprisonment for the murder

conviction and ten to twenty years’ imprisonment for the robbery conviction. After conducting a

de novo review of the Report and Recommendation of United States Magistrate Judge Timothy

R. Rice, and upon consideration of petitioner’s objections thereto, the court will overrule

petitioner’s objections, adopt in substantial part the Report, and approve the Recommendation. 

I. FACTS AND PROCEDURAL BACKGROUND

The Pennsylvania Superior Court, in reviewing Hammond’s direct appeal, summarized

the history of Hammond’s arrest and convictions: 

The victim, an employee of Dunkin’ Donuts, was killed at the store. Police

investigation into the murder focused on a young black man described by many

witnesses as being in and around the Dunkin’ Donuts store in the hours surrounding

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the matter. In the early part of the day, starting at approximately 1:30 p.m., witnesses

recalled observing a man fitting this description siting in the store; after 6:00 p.m.

that day, customers were waited on by a similarly-described man, who appeared

unfamiliar with the workings of the store. Across the street, another witness was at

the bus stop at approximately 6:08 p.m. when he was approached by a black man

who asked him what time the bus arrived and, upon learning the bus was due, but

was usually late, ran across the street to Dunkin’ Donuts. Several minutes later, a

black man banged on the bus door, got on the bus and remained in the front. At

approximately the same time, an ambulance driver observed a black man run from

Dunkin’ Donuts and frantically try to catch a bus. The bus driver similarly recalled

a young black man run from the Dunkin’ Donuts, board the bus and stand in the front

until the driver let him off in Center City Philadelphia. Register tapes from Dunkin’

Donuts showed irregular activity beginning at 5:46 p.m. the evening of the murder.

. . . . 

The Montgomery County Grand Jury began an investigation into the murder.

The grand jury issued a subpoena ordering [Hammond] to appear. Detectives

searched unsuccessfully for [Hammond] before hand-delivering the subpoena to

[Hammond’s] father at [Hammond’s] last known address. 

[Hammond] failed to appear before the grand jury on the date specified in the

subpoena. As a result, a bench warrant was issued for [Hammond]. This information

was entered into the National Crime Information Computer (“NCIC”).

. . . . 

Approximately two months later, [Hammond] was arrested in Ohio on

unrelated theft and drug charges. Before they released [Hammond], the Ohio police

notified Montgomery County authorities that [Hammond] was in custody, and would

be detained on the basis of the NCIC notices. Montgomery County detectives went

to Ohio and met with [Hammond]. After being advised of his Miranda rights,

[Hammond] waived those rights and gave an incriminating statement in which he

explained the events of the day of the murder. . . . [Hammond] subsequently appeared

for an extradition hearing, represented by counsel, at which he waived extradition

and agree[d] to return to Pennsylvania. The Montgomery County detectives

accompanied [Hammond] back to Pennsylvania. During the return trip [Hammond]

made additional incriminating statements. 

Commonwealth v. Hammond, 764 A.2d 1123 (Pa. Super. Ct. 2000) (unpublished table decision).

On February 9, 1999, a jury convicted Hammond of first-degree murder, robbery and

theft. The jury could not agree on a sentence, so on February 11, 1999, the trial judge sentenced

Hammond to life imprisonment for the first-degree murder charge and ten to twenty years’

imprisonment for the robbery charge. The terms of imprisonment were to run consecutively. 

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Hammond filed a timely notice of appeal in the Superior Court of Pennsylvania on

October 22, 1999. In his direct appeal, Hammond raised three claims: 

(1) [W]hether the trial court improperly refused to suppress [Hammond’s]

inculpatory statements; 

(2) [W]hether the verdict was against the weight of the evidence; and 

(3) [W]hether the trial court improperly refused to instruct the jury on

[Hammond’s] voluntary intoxication or drugged condition. 

Id. On August 28, 2000, the Pennsylvania Superior Court affirmed the judgment of sentence. 

Hammond then filed a petition for allowance of appeal to the Pennsylvania Supreme Court,

which the Pennsylvania Supreme Court denied on June 4, 2001.

On May 29, 2002, Hammond filed a Pennsylvania Post Conviction Relief Act (“PCRA”)

petition pursuant to 42 Pa. Con. Stat. §§ 9451 et seq. Hammond later filed an amended PCRA

petition, in which he raised three grounds for relief in an effort to make out a layered ineffective

assistance of counsel claim:

(1) During the early stages of this case, [Hammond’s initial counsel] failed to file

a Motion to Quash Subpoena before the issuing judge on January 26, 1998.

This failure to file an appropriate Motion to Quash led to the admission of

statements made by [Hammond] in Ohio in January of 1998 that would not

have been [admitted into evidence] but for counsel’s failure to effectively

represent [Hammond.] Additionally, [counsel] failed to meet with

[Hammond] priorto appearing on [Hammond’s] behalf before the Honorable

Judge Subers, the supervising judge of the Montgomery County Grand Jury

at the time. [Counsel] also initiated plea bargain negotiations without the

consent of his client[. The plea negotiations] were contrary to [Hammond’s]

wishes. 

(2) Trial counsel . . . was ineffective in his representation of [Hammond] during

the actual trial phase of these proceedings to the extent that [Hammond] did

not receive a fair trial in contradiction to his constitutional rights.

Specifically, [trial counsel] failed to challenge the voluntariness of

[Hammond’s] statements at any phase of the proceedings, but specifically

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during the two-day suppression hearing in May of 1998. [Trial counsel] also

failed to notify [Hammond] of his right to testify at the suppression hearing

and no colloquy was performed at this hearing that allowed [Hammond] to

know his rights. Additionally, [trial counsel] failed to challenge or argue

against the contradictory testimony given by a commonwealth witness as to

the chronology of events that occurred on the day of the murder and failed to

have independent DNA analysis performed on blood and hair samples found

at the scene of the crime. Finally, [trial counsel] failed to adequately argue

the alibi defense that was implicit from the facts ofthis case or to request that

the Trial Court give an alibi defense instruction. 

(3) [Appellate Counsel] failed to submit an adequate appeal on [Hammond’s]

behalf in that she failed to raise prior counsel’s ineffectiveness, failed to raise

the issue of the alibi defense, failed to challenge rulings made by the Trial

Court in regard to unavailable witnesses and failed to notify [Hammond] of

his appellate rights. 

(Resp’t’s Answer Pet’r’s Pet. Writ Habeas Corpus, Ex. E, Pet’r’s PCRA Pet. at 5-7.)

After appointing counsel and holding a hearing, the PCRA court denied Hammond’s

motion on March 17, 2003. Hammond appealed this dismissal to the Superior Court, raising five

issues for review:

(1) The Trial Court erred by failing to find that [Hammond’s] first attorney . . .

was constitutionally ineffective when [he] failed to file, or to otherwise

present to the Court of Common Pleas, a Motion to Quash the bench warrant

that had been issued . . . in November of 1997 for failure to appear before the

Montgomery County Grand Jury. The Superior Court of Pennsylvania later

found that service of this bench warrant was improper under the appropriate

rules for service in [Pennsylvania].

(2) The Trial Court erred by failing to find that [Hammond’s] trial counsel . . .

was constitutionally ineffective when he failed to request a continuance

during trial in this matter so that the testimony of a crucial witness could have

been obtained. The testimony of this witness was critical to the defense

theory of the case that [Hammond] was the victim of mistaken identity. 

(3) The Trial Court erred by failing to find that [Hammond’s] trial counsel . . .

was constitutionally ineffective for failure to effectively argue the defense

theory of mistaken identity when the witness’s statements and testimony in

this case clearly demonstrated that [Hammond] could not have been in two

Case 2:04-cv-05783-WY Document 17 Filed 05/29/09 Page 4 of 19
 Hammond’s fourth claim states the same ground for relief as does his second claim. 1

Hammond supports his fourth claim with the same reasoning he used to support his third claim. 

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locations at the same time. Trial Counsel failed to use demonstrative

evidence to show the jury these inconsistencies as to time or to have an

independent DNA analysis performed on hair and blood samples found at the

scene of the crime. 

(4) The Trial Court erred by failing to find that [Hammond’s] first appellate

counsel . . . was constitutionally ineffective for failing to argue that

[Hammond’s first attorney] . . . was constitutionally ineffective in his

representation of [Hammond]. 

(5) The Trial Court erred in failing to find that the layered ineffectiveness of

three different attorneys has caused the truth-determining process to be

undermined to such an extent that no reliable adjudication of guilt could have

taken place and has further erred by denying [Hammond’s] Petition for Relief

under the Post-[C]onviction Relief Act.

(Id. Ex. H, Pet’r’s PCRA Appeal Pet. at 1-2.) The Superior Court affirmed the dismissal of

Hammond’s PCRA petition on January 6, 2004. On February 4, 2004, Hammond filed a petition

for allowance of appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court

denied Hammond’s petition on November 4, 2004. 

On December 14, 2004, Hammond filed the instant habeas petition pursuant to 28 U.S.C.

§ 2254, asserting the following four claims: 

(1) Conviction [was] obtained by use of coerced confession; 

(2) Conviction [was] obtained by use of evidence obtained pursuant to an

unlawful arrest;

(3) Denial of effective assistance of counsel [stemming from the subpoena served

on Hammond’s father]; and 

(4) Conviction [was] obtained by use of evidence obtained pursuant to unlawful

arrest.1

(Pet’r’s Pet. Writ Habeas Corpus at 9-10.) On July 13, 2005, Magistrate Judge Timothy R. Rice

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issued a Report and Recommendation that the district court dismiss all four of Hammond’s

claims. Hammond filed objections to the magistrate judge’s report on July 28, 2005. 

Respondents did not file a reply to Hammond’s objections. This case was reassigned to my

docket on April 28, 2009. 

II. STANDARD OF REVIEW

Where a habeas petition has been referred to a magistrate judge pursuant to 28 U.S.C. §

636(b)(1)(B), the court reviews de novo “those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). After

completing such review, the court “may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge.” Id.

Magistrate Judge Rice found that Hammond’s habeas petition should be dismissed for the

following reasons. First, Hammond’s first, second and fourth claims all raised Fourth

Amendment issues. Because Hammond was afforded a full opportunity to raise these claims in

state court, all three claims failed under the doctrine announced in Stone v. Powell, 428 U.S. 465

(1976). Second, Judge Rice found that Hammond’s argument concerning the propriety of the

service of the subpoena was without merit. Because the underlying claim lacked merit, Judge

Rice concluded under Strickland v. Washington, 466 U.S. 668 (1984) and Werts v. Vaughn, 228

F.3d 178 (3d Cir. 2000) that the Superior Court was not unreasonable in determining that

Hammond’s Sixth Amendment right to effective counsel was not violated. 

Hammond raised two objections to the Report and Recommendation. First, he continued

to argue that the facts of the case demonstrate that counsel was constitutionally deficient because

counsel failed to challenge the grand jury subpoena and bench warrant. Second, Hammond

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clarified that he does not challenge the effectiveness of his appellate counsel’s representation. 

Instead, he challenges the Superior Court’s application of the Pennsylvania Rules of Civil

Procedure rather than an applicable criminal statute when the court determined whether service

of the subpoena was proper. In addition to his objections, Hammond raised three new grounds

for relief: (1) counsel failed to request the continuance that would have allowed a defense witness

to return to the county to testify; (2) counsel failed to call an expert witness concerning forensic

testimony; and (3) counsel failed to follow the defense strategy that counsel conveyed to

petitioner in a letter that petitioner and counsel both signed. 

The court addresses these issues de novo. 

III. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§

2241 et seq., governs the court’s review of this habeas petition. Under AEDPA, a “district court

shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant

to the judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” Id. § 2254(a). Habeas relief is

unwarranted “with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established Federal law,” § 2254(d)(1), 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,” § 2254(d)(2). Prior to reaching these

substantive issues, however, the court must first determine whether Hammond’s claims are

properly before the court. See Kindler v. Horn, 542 F.3d 70, 78 (3d Cir. 2008). 

Case 2:04-cv-05783-WY Document 17 Filed 05/29/09 Page 7 of 19
 Though respondent does not raise the issue of timeliness in its brief, the court may raise 2

the issue sua sponte. See Day v. McDonough, 547 U.S. 198, 209 (2006) (holding that “district

courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner’s

habeas petition”). 

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A. AEDPA’s Procedural Requirements

1. Timeliness 2

AEDPA imposes a one-year statute of limitations on habeas petitioners. See § 2244(d)(1)

 Section 2244(d)(1) provides that the one year statute of limitations will run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review

or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action

in violation of the Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action; 

(C) the date on which the constitutional right asserted was initially recognized by the

Supreme Court, if the right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review; or 

(D) the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence.

Only § 2244(d)(1)(A) applies to Hammond’s petition. Thus, to satisfy AEDPA’s timeliness

requirement in this instance, Hammond must have filed his habeas petition within one year of the

date on which his state conviction became final. Hammond’s state court conviction became final

on September 2, 2001, ninety days after the Pennsylvania Supreme Court affirmed Hammond’s

judgment of sentence, because Hammond could have, but did not, petition for certiorari with the

United States Supreme Court. See S. Ct. R. 13(1); Morris v. Horn, 187 F.3d 333, 337 n.1 (3d

Cir. 1999) (reminding that Pennsylvania Supreme Court’s decision becomes final after ninety day

period in which a petitioner can seek a writ of certiorari expires); cf. Clay v. United States, 537

U.S. 522, 527 (2003) (holding the same for § 2255). Importantly, the one-year statute of

limitations is statutorily tolled during the time in “which a properly filed application for State

Case 2:04-cv-05783-WY Document 17 Filed 05/29/09 Page 8 of 19
 Hammond filed his PCRA petition on May 29, 2002, 269 days after his conviction 3

became final. Hammond’s PCRA proceedings were pending until the Pennsylvania Supreme

Court denied Hammond’s petition for allowance of appeal on November 4, 2004. Hammond

filed his habeas petition on December 14, 2004, 40 days after the Pennsylvania Supreme Court

denied Hammond’s petition. 

Taking into consideration Hammond’s properly filed state court post-conviction

proceedings, Hammond’s habeas petition was filed 309 days after his conviction became final. 

Therefore, Hammond filed his habeas petition within AEDPA’s one-year statute of limitations. 

 The Third Circuit has set forth “two general requirements for equitable tolling: (1) that 4

‘the petitioner has in some extraordinary way been prevented from asserting his or her rights;’

and (2) that the petitioner has shown that ‘he or she exercised reasonable diligence in

investigating and bringing [the] claims.’” Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003)

(quoting Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)). The Third Circuit has found equitable

tolling appropriate: (1) if the respondent has actively misled the petitioner; (2) if the petitioner

has in some extraordinary way been prevented from asserting his rights; (3) if the petitioner has

timely asserted his rights mistakenly in the wrong forum, Jones v. Morton, 195 F.3d 153, 159 (3d

Cir. 1999); or (4) if the court has misled the petitioner regarding the steps the petitioner needs to

take to preserve a claim, Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005). None of these

situations applies to Hammond’s newly raised claims. More generally, Hammond has not

satisfied the two requirements for equitable tolling. Therefore, equitable tolling is inapplicable

and Hammond’s new claims are time barred.

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post-conviction or other collateral review with respect to the pertinent judgment or claim is

pending.” § 2244(d)(2). Because of his state court filings, less than one year elapsed between

the date on which Hammond’s conviction became final and the date on which Hammond filed

his habeas petition. Thus, the claims raised in Hammond’s original habeas petition are timely. 

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Conversely, the three claims raised for the first time by Hammond in his objections to the

Report and Recommendation on July 28, 2005 are not timely, as these claims were raised more

than one year after Hammond’s conviction became final. Moreover, Hammond does not argue,

and the record does not suggest, let alone demonstrate, that equitable tolling applies. Therefore,

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the court is barred from reviewing the three new claims that Hammond raised in his objections to

Case 2:04-cv-05783-WY Document 17 Filed 05/29/09 Page 9 of 19
 In addition to timeliness, it is generally accepted that a habeas court can refuse to hear

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claims that were not raised before the magistrate judge. See Kirk v. Meyer, 279 F. Supp. 2d 617,

619 (E.D. Pa. 2003) (“Although the Third Circuit has remained silent on the precise issue, the

vast majority of authority holds that a district court may properly refuse to hear claims not first

presented to the assigned Magistrate Judge.” (citing cases)).

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Judge Rice’s Report and Recommendation. 

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2. Exhaustion and Default

Habeas courts can not grant habeas corpus relief under § 2254 “unless the petitioner has

‘exhausted the remedies available in the courts of the State.’” Leyva v. Williams, 504 F.3d 357,

365 (3d Cir. 2007) (quoting 28 U.S.C. § 2254(b)(1)(A)). The requirement of exhaustion is

“grounded in principles of comity . . . [giving] States . . . the first opportunity to address and

correct alleged violations of [a] state prisoner’s federal rights.” Coleman v. Thompson, 501 U.S.

722, 731 (1991). To fairly raise his claims, “a petitioner must ‘present a federal claim’s factual

and legal substance to the state courts in a manner that puts them on notice that a federal claim is

being asserted.’” Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005) (quoting McCandless v.

Vaughan, 172 F.3d 255, 261 (3d Cir. 1999)). Importantly, in Pennsylvania, a petitioner need not

seek review with the Pennsylvania Supreme Court to properly exhaust. Lambert v. Blackwell,

387 F.3d 210, 233 (3d Cir. 2004). Thus, to satisfy § 2254(b)(1)(A), a petitioner must present his

claims to the Pennsylvania Superior Court. See Williams v. Folio, No. 07-1099, 2008 WL

336306, *3 (E.D. Pa. Feb. 4, 2008) (stating that “a habeas petitioner successfully exhausts a

claim by bringing it to the Superior Court either on direct appeal or during PCRA proceedings”).

Hammond raised claims two, three and four in state court proceedings before the

Pennsylvania Superior Court. However, Hammond’s first claim—that his conviction is based on

Case 2:04-cv-05783-WY Document 17 Filed 05/29/09 Page 10 of 19
 Hammond did challenge the admission of his statements on Fourth Amendment grounds 6

in his direct appeal. Specifically, the Superior Court stated: “[Hammond] first claims that the

trial court erred in refusing to suppress his incriminating statements because they were obtained

while [Hammond] was improperly detained.” Commonwealth v. Hammond, 764 A.2d 1123, slip

op. at 5 (Pa. Super. Ct. 2000) (unpublished table decision). Unlike his claim on direct appeal, in

his habeas petition, Hammond claims that his “conviction [was] obtained by use of [a] coerced

confession.” (Pet’r’s Pet. Writ Habeas Corpus at 9.) To support this claim, Hammond argues

that “[t]he Court admitted a coerced statement into evidence, which was the main evidence

connecting petitioner to the crime . . . .” Though Hammond does not further elucidate the nature

of his claim (i.e., whether he relies on Miranda or due process or both), his claim is distinct from

the one he raised on direct appeal as it relies on a different constitutional protection. That

Hammond challenged the admission of his confession in state court on Fourth Amendment

grounds does not serve to exhaust his present Fifth and/or Fourteenth Amendment claims. 

Although both claims relate to Hammond’s confession, the claims are separate and distinct

constitutional challenges that a petitioner must independently exhaust in state court. 

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a coerced confession—was not raised in state court. Therefore, Hammond has not exhausted his 6

state court remedies for his first claim. If a petitioner’s claims are unexhausted and the time for

doing so has yet to pass, a petitioner should return to state court to exhaust the claims. If the time

to exhaust such claims has passed, the unexhausted claims are procedurally defaulted because

state procedural rules will bar petitioner from raising the unexhausted claims. See Coleman, 501

U.S. at 735 n.1 (reasoning that when “the court to which the petitioner would be required to

present his claims in order to meet the exhaustion requirement would now find the claims

procedurally barred . . . there is a procedural default for purposes of federal habeas”). Here,

because more than one year has elapsed since the date on which Hammond’s conviction became

final, Hammond can no longer seek redress for the alleged constitutional deprivation in state

court. See 42 Pa. Con. Stat. § 9545(b)(1) (requiring petitioners to file all PCRA petitions “within

one year of the date the judgment becomes final”). Therefore, Hammond’s first claim is subject

to procedural default. 

Case 2:04-cv-05783-WY Document 17 Filed 05/29/09 Page 11 of 19
 Additionally, in his fourth claim, Hammond takes issue with the Superior Court’s 7

application of state law during his PCRA appeal. As I will explain below, habeas review is not

the proper venue for this claim.

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Hammond can overcome this default if he demonstrates cause and prejudice, Werts v.

Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000), or a miscarriage of justice, Cristin v. Brennan, 281

F.3d 404, 420-21 (3d Cir. 2002) (reminding that the “miscarriage of justice inquiry is . . .

concerned with ‘actual innocence’” (quoting Sawyer v. Whitley, 505 U.S. 333, 339 (1992))). 

Hammond has not asserted, let alone demonstrated, cause and prejudice for his default. 

Moreover, Hammond does not argue and the record does not suggest that the failure to consider

his first claim would constitute a miscarriage of justice. Therefore, Hammond can not overcome

his procedural default, and I will dismiss his first claim accordingly.

B. Claims 2 and 4

In claims two and four, Hammond asserts that his convictions are premised on evidence

obtained during an unconstitutional arrest. Hammond argues that he was improperly detained in

Ohio because the bench warrant issued for his arrest was premised on Hammond’s failure to

comply with an improperly served subpoena. According to Hammond, because the subpoena

was improperly served, the bench warrant was unlawful as was his resultant detention in Ohio,

and all statements obtained during the detention violate his Fourth Amendment rights. 

Hammond contends that because his conviction is premised on Fourth Amendment violations, he

is entitled to habeas relief.7

In Stone v. Powell, the Supreme Court held that “where the State has provided an

opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be

Case 2:04-cv-05783-WY Document 17 Filed 05/29/09 Page 12 of 19
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granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional

search or seizure was introduced at his trial.” 428 U.S. 465, 494 (1976) (footnote omitted). 

More specifically, if a petitioner is given a full and fair opportunity to raise and litigate Fourth

Amendment issues at trial or on direct appeal, then “[u]nder Stone v. Powell, a federal court may

not reexamine the state court’s determination that no Fourth Amendment violation occurred, that

a violation had occurred but that introduction of its fruits was harmless, or that any Fourth

Amendment violation that might have occurred had harmless results.” See Gilmore v. Marks,

799 F.2d 51, 56 (3d Cir. 1986). Therefore, while federal courts do exercise jurisdiction over

Hammond’s Fourth Amendment claims, federal courts “are—for prudential reasons—restricted

in their application of the exclusionary rule.” Marshall v. Hendricks, 307 F.3d 36, 81 (3d Cir.

2002).

The question for habeas review, therefore, is whether Hammond had the opportunity to

fully and fairly litigate his Fourth Amendment claims at trial or on direct review. Hammond

does not argue that he was denied such an opportunity, and a review of the record clearly

demonstrates that Hammond fully litigated these issues in a pre-trial suppression hearing and in

his direct appeal. Hammond is “at most alleging that the Fourth Amendment claims were

decided incorrectly or incompletely . . . allegations that are insufficient to surmount the Stone

bar.” Id. at 82. Therefore, because I find that Hammond had a full and fair opportunity to raise

his Fourth Amendment claims in state court, Stone v. Powell precludes habeas relief. I will deny

Hammond’s second and fourth claims accordingly. 

C. Claim 3

In his third claim, Hammond actually raises two distinct grounds for relief. First,

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Hammond asserts (without explanation) that he was denied effective assistance of counsel. 

Hammond explains this claim in his objections to the Report and Recommendation, arguing that

counsel was ineffective for failing to challenge propriety of the grand jury subpoena. Second,

Hammond argues that the Superior Court violated his due process rights when it applied

Pennsylvania Rules of Civil Procedure in determining whether service of the grand jury subpoena

was proper. 

1. Ineffective Assistance of Counsel 

To establish constitutionally ineffective assistance of counsel, a petitioner must show that

(1) his attorney’s performance was deficient, and (2) the deficient performance prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficiency, a petitioner

must show that counsel’s performance “fell below an objective standard of reasonableness under

prevailing professional norms.” Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (citing

Strickland, 466 U.S. at 688). To prove prejudice, “a petitioner must demonstrate that there is ‘a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” Holland v. Horn, 519 F.3d 107, 120 (3d Cir. 2008) (quoting

Strickland, 466 U.S. at 694). “It is not enough for the [petitioner] to show that the errors had

some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. Rather,

the petitioner “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. 

Reasonable probability means “a probability ‘sufficient to undermine confidence in the

outcome.’” Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (quoting Hull v. Kyler, 190 F.3d

88, 110 (3d Cir. 1999)). As the Strickland standard is a clearly established federal law, Taylor v.

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Horn, 504 F.3d 416, 430 (3d Cir. 2007), cert. denied, 129 S. Ct. 92 (2008), the question for a

habeas court is whether the state court’s review of a petitioner’s ineffective assistance of counsel

claim was contrary to, or an unreasonable application of, the Strickland standard, Siehl v. Grace,

561 F.3d 189, 196 (3d Cir. 2009). 

When the Superior Court initially addressed Hammond’s ineffective assistance of counsel

claim on direct appeal, the Superior Court found that service of the grand jury subpoena was

improper, and that the subpoena would have been quashed if Hammond challenged its validity. 

However, because Hammond failed to challenge the subpoena, Hammond waived his Sixth

Amendment claim. When the Superior Court addressed the same issue in Hammond’s PCRA

appeal, the Superior Court amended its previous reasoning and held that service of the subpoena

was proper. The Superior Court further held that because service was proper, the underlying

claim to Hammond’s ineffective assistance of counsel claim lacked merit. The Superior Court

relied on the plain language of 42 Pa. Con. Stat. § 5904(a) to reach this conclusion. Section

5904(a), which governs service of subpoenas in criminal matters, states: 

(a) Method of service.—In addition to any other method of service provided by law,

a subpoena may be served upon a witness in a criminal proceeding by registered or

certified mail, return receipt requested, or by first class mail.

(emphasis added). Because of the phrase “any other method of service provided by law,” the

Superior Court held that § 5904(a) permits service pursuant to the Pennsylvania Rules of Civil

Procedure. Having decided that § 5904 permitted use of civil rules of service, the Superior Court

found that, pursuant to Pennsylvania Rules of Civil Procedure 234.2 and 402, service may be

perfected by (1) “handing a copy to the defendant” or (2) “handing a copy . . . at the residence of

the defendant to an adult member of the family with whom he resides . . . .” Pa. R. Civ. Pro.

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402(a)(2)(i). The Superior Court held that the subpoena was properly served because

Hammond’s father was served at Hammond’s last known address. Because service was proper,

the claims underlying Hammond’s ineffective assistance of counsel claim lacked merit. 

Accordingly, the Superior Court denied Hammond’s ineffective assistance of counsel claim. 

Upon review of the Superior Court’s decision, I find that because Hammond’s underlying

claim regarding service of the subpoena is meritless, Hammond fails to establish either of the

Strickland prongs. Here, as the Superior Court noted, Hammond’s father was served at

Hammond’s last known address. Thus, service was proper under Rules 234.2(b)(1) and 402,

and, consequently, under § 5904(a). Because service was proper, the underlying claim that forms

the basis of Hammond’s ineffective assistance of counsel claim lacks merit. Therefore,

Hammond’s counsel’s actions did not fall “below an objective standard of reasonableness . . . .” 

Buehl, 166 F.3d at 169 (citing Strickland, 466 U.S. at 688), and Hammond has not suffered

prejudice, as the trial court would have denied any motion to quash that Hammond alleges his

attorney should have filed, cf. Diggs v. Owens, 833 F.2d 439, 446 (3d Cir. 1987) (finding that

petitioner not prejudiced where appellate counsel failed to raise meritless claim on appeal). 

Under Strickland, there simply “can be no Sixth Amendment deprivation of effective counsel

based on an attorney’s failure to raise a meritless argument.” United States v. Sanders, 165 F.3d

248, 253 (3d Cir. 1999). Under § 2254(d)(1), Hammond has not demonstrated that the Superior

Court’s decision was either contrary to, or an unreasonable application of, Strickland. 

Accordingly, I will deny Hammond’s ineffective assistance of counsel claim. 

2. Denial of Due Process

Hammond contends that the Superior Court in his PCRA proceeding improperly relied on

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the Pennsylvania Rules of Civil Procedure in determining that service of the subpoena was

proper. However, “the federal role in reviewing an application for habeas corpus is limited to

evaluating what occurred in the state or federal proceedings that actually led to the petitioner’s

conviction; what occurred in the petitioner’s collateral proceeding does not enter into the habeas

calculation.” Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998); see also Mason v.

Meyers, 208 F.3d 414, 417 (3d Cir. 2000) (rejecting claim of due process violation in collateral

proceeding as basis for habeas claim). Therefore, because Hammond attacks the decision of the

Superior Court in its review of his collateral attack rather than the events taking place during his

trial, Hammond’s claim does not provide a basis for habeas relief. 

Notwithstanding this rule, it is well-established that “‘federal habeas corpus relief does

not lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v.

Jeffers, 497 U.S. 764, 780 (1990)). As I discussed above, Hammond has not demonstrated that

the Superior Court’s ruling on the service issue was constitutionally defective or even erroneous. 

Therefore, I will deny Hammond’s third claim to the extent it raises a due process claim.

IV. CONCLUSION

In conclusion, I find that Hammond’s first claim is unexhausted. Hammond’s second and

fourth claims each invoke the Fourth Amendment as the basis for habeas relief. Because

Hammond had a full and fair opportunity to raise these claims at trial and on direct review, the

Stone v. Powell doctrine precludes habeas relief on Fourth Amendment grounds, I will deny

claims two and four accordingly. I will also deny claim three to the extent that Hammond raises

an ineffective assistance of counsel claim because Hammond has not satisfied the two-prong

Strickland standard. Finally, I will dismiss claim three to the extent that Hammond raises a due

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process claim attacking collateral proceedings or stemming from the Superior Court’s application

of state law, as such claims do not form a basis for habeas relief. 

Lastly, I must determine if I should issue a certificate of appealability. A court may issue

a certificate of appealability only if the petitioner “has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires that the petitioner “demonstrate

that reasonable jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). According to the Supreme

Court, 

When the district court denies a habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claim, a [certificate of appealability]

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.

Id. “Where a plain procedural bar is present and the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed further.” Id.

Reasonable jurists could not disagree about petitioner’s procedural default and his failure to

show either cause and prejudice or a miscarriage of justice. Therefore, the court will not issue a

certificate of appealability with respect to Hammond’s first claim. 

Additionally, on the basis of the record before the court, petitioner’s remaining claims

(claims 2-4) are without merit. The court is persuaded that reasonable jurists would not find this

assessment debatable or wrong. Therefore, petitioner has failed to make a substantial showing of

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the denial of a constitutional right, and a certificate of appealability will not issue with respect to

Hammond’s remaining claims. 

 An appropriate order follows. 

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