The facts of Moore’s crimes are taken from the Pennsylvania 1

Superior Court’s opinion deciding Moore’s direct appeal. 

Commonwealth v. Moore, No. 1601 EDA 2000 (Pa. Super. Ct. July 17,

2001) (Attached as Ex. A to Respondents’ Response).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

________________________________

:

JOHN MOORE, : CIVIL ACTION

:

 Petitioner, :

:

v. : NO. 05-2796

:

DAVID DIGUGLIELMO, :

et al., :

:

 Respondents. :

________________________________:

ARNOLD C. RAPOPORT

UNITED STATES MAGISTRATE JUDGE 

 

REPORT AND RECOMMENDATION

John Moore has filed a Petition for writ of habeas corpus. 

For the following reasons, I recommend that the Petition be

dismissed without an evidentiary hearing and with no certificate

of appealability issued.

I. FACTS AND PROCEDURAL HISTORY.

1

On July 7, 1996, Moore and his associate James Lamb

conspired to rob drug buyers in an area of Philadelphia noted for

its drug trafficking activity. They selected three victims, whom

they forced to lie face down in the street and pistol-whipped

them. One of the victims, Sammy Cedano, resisted the attempt to

take his gold chain. He was shot in the back and later died of

his wound. Another victim, William Cintron, received permanent

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 1 of 26
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injuries from a gunshot wound as he fled from the robbers. 

Moore was tried in a bench trial before Judge Steven R.

Geroff of the Philadelphia Court of Common Pleas. The trial

evidence included the testimony of James Lamb who, on the advice

of counsel, cooperated with police in exchange for a guilty plea

to third degree murder. The defense theory pursued by counsel

Nino Tinari, Esquire, was that Lamb shot Cedano, not Moore. 

(Response at 18 citing N.T. 5/9/00 at 86.) Moore was found

guilty of one count each of second degree murder, criminal

conspiracy, and possessing an instrument of crime; two counts of

aggravated assault; and three counts of robbery. Moore received

a sentence of life imprisonment on the murder conviction and

concurrent terms of imprisonment on the other counts of

conviction. 

On direct appeal, Moore preserved the following issues for

review: 1) the trial judge erred in failing to grant a mistrial

predicated on references to prior criminal conduct; 2) the

verdicts were contrary to the weight of the evidence; and 3) the

trial judge imposed an illegal sentence because the concurrent

terms imposed for the robbery conviction involving victim Cedano

should have merged with the second degree murder sentence. The

Superior Court affirmed the judgments of conviction, but vacated

the portion of sentence for the Cedano robbery, agreeing with

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 2 of 26
The illegality of the sentence was cured by vacating the 2

sentence for the predicate offense and leaving the sentence for

the second degree murder conviction in place. In reaching this

conclusion, the Superior Court noted that the trial judge himself

acknowledged the error and requested that the robbery sentence be

vacated. Id. slip op. at 8.

-3-

Moore that the sentences should have merged. The Pennsylvania 2

Supreme Court denied allowance of appeal on November 21, 2001. 

Commonwealth v. Moore, 790 A.2d 1019 (Pa. 2001).

Moore filed his first petition pursuant to the Pennsylvania

Post Conviction Relief Act (“PCRA”) on June 10, 2002. He alleged

that trial counsel Tinari was ineffective for failing to file a

motion in limine to bar Lamb’s testimony, by coercing Moore to

waive his right to a jury trial, by advising him not to testify,

and for failing to communicate with him prior to the trial. He

also alleged that the prosecutor committed misconduct by using

perjured testimony and failing to correct the perjured testimony

of James Lamb. (Response Ex. B.)

Barbara McDermott, Esquire was appointed to represent Moore

by Judge Geroff, but upon her review of the record, counsel

concluded there were no viable grounds to proceed and filed a

Finley letter with the court. See Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. Ct. 1988) (en banc) (describing the

requirements of a Finley letter, which must be filed when

appointed counsel seeks to withdraw from a collateral appeal

filed under the PCRA). Specifically, McDermott informed the

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court that she contacted Lapricia Jessup, the sister of James

Lamb and mother of Moore’s child, whom Moore had identified to

trial counsel as a potential exculpatory witness, but who was

never called to testify. (Response Ex. C at 6-7.) While Moore

never raised this issue of ineffective assistance in his pro se

Petition, he apparently raised the issue with McDermott, who

advised the Court in the Finley letter that she contacted Jessup. 

Jessup told McDermott that: 1) she had a conversation with Lamb

after his arrest; 2) Lamb told her that he could not remember who

was involved in the robbery with him; 3) Moore and Lamb spent

time together on a daily basis at the time of the murder; and 4)

Jessup told Lamb to cooperate with the Commonwealth and identify

his co-conspirator. (Response Ex. C at 6-7.) McDermott

reported, however, Jessup would not testify or sign an affidavit. 

(Id.) Accordingly, PCRA counsel determined that there was no

evidence that would support Moore’s claim that Attorney Tinari

was ineffective for failing to present Jessup as a trial witness. 

She added that any attempt by trial counsel to elicit evidence

from Jessup would have been questionable trial strategy, since

Jessup would have testified to her knowledge that Moore and Lamb

spent time together on a daily basis at the time of the incident,

and that she counseled her brother to cooperate with the

Commonwealth and identify his co-conspirator. (Id. at 7.) 

Accordingly, she concluded that Moore could not demonstrate any

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 4 of 26
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prejudice arising from Tinari’s failure to call Jessup as a

witness. (Id.)

Based on McDermott’s Finley letter, Judge Geroff issued a

Notice of Intent to Dismiss the Petition. (Response Ex. D.) 

Moore filed a response to the Notice setting forth the same

issues he raised in his pro se petition, and adding the

additional argument that PCRA counsel McDermott was

constitutionally ineffective because she could not predict what

favorable evidence Jessup could have provided to trial counsel

Tinari. (Response Ex. E. at 3-5.) Moore also attached to the

response an affidavit of Herman Brooks, who asserted that while

in the Youth Study Center he asked James Lamb “what he was locked

up for and he told me for that body that Newton did on 9th

Street.” He also attached what purports to be a letter he wrote

to trial counsel dated October 14, 1999, identifying Jessup as a

potential witness. (Response Ex. E.)

Thereafter, on December 23, 2002, Judge Geroff dismissed the

PCRA petition without a hearing. (Response Ex. F.) On May 12,

2003, he issued an opinion explaining his decision for the

dismissal. (Response Ex. G.) Based on the facts presented by

McDermott’s Finley letter, he found that Moore could not meet his

burden under the Pennsylvania law governing ineffective

assistance of counsel claims on the issue of Tinari’s failure to

investigate Jessup’s evidence. 

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 5 of 26
Moore filed a second PCRA petition on May 3, 2004, while 3

the appeal of his first petition was still pending. The PCRA

Court noted that this petition was summarily dismissed because

the first petition was still pending. (Response Ex. K at 2.) It

has not been included in either parties’ habeas submissions.

-6-

Moore appealed, raising seven issues: 1) trial counsel was

ineffective for failing to object to Lamb’s false testimony; 2)

the trial court erred in crediting portions of Lamb’s testimony;

3) trial counsel was ineffective for advising Moore not to

testify after Lamb implicated him in the robbery; 4) PCRA counsel

was ineffective for failing to obtain an affidavit from Jessup;

5) PCRA counsel was ineffective for failing to raise trial

counsel’s ineffectiveness for stipulating to the Coroner’s report

concerning the cause of death; 6) PCRA counsel was ineffective

for failing to file an amended PCRA petition; and 7) the PCRA

Court erred in concluding that none of the issues raised in

Moore’s pro se petition had arguable merit. (Response Ex. I at

3-4.) On August 27, 2004, the Pennsylvania Superior Court, with

one judge dissenting, dismissed the appeal of the PCRA decision. 

(Id.) 

On May 17, 2005, Moore filed a third PCRA petition. He 3

alleged he was entitled to a new trial based upon James Lamb

recanting his testimony. (Response Ex. J.) Moore attached to

the petition an affidavit by Lamb averring that he swore falsely

when he testified at trial that Moore was with him during the

robbery; that he had told the police that a neighborhood friend

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 6 of 26
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named Newton was with him, but that police threatened him with

the death penalty if he didn’t implicate Moore; and that while

Lamb saw Moore on the night of the murder, it was before Newton

robbed the victims with Lamb’s help.

Judge Geroff dismissed the third petition, finding that

although it was timely, Lamb’s recantation was “absurd and

totally incredible. If another man from the neighborhood had

been involved instead of the petitioner, Mr. Lamb could have

received the same deal for his testimony against that man.” 

(Response Ex. K at 4-5.) The dismissal was affirmed by the

Superior Court on June 28, 2007. (Response Ex. M.)

Moore filed the current federal habeas petition on June 10,

2005, while his third PCRA petition was still pending, raising as

issues: 1)ineffective assistance of trial counsel for failing to

investigate, interview and call witness Lapricia Jessup; 2)

ineffective assistance of trial and appellate counsel for

stipulating to Coroner’s report; 3) ineffective assistance of

trial counsel for failing to object to Lamb’s false testimony; 4)

trial counsel ineffectiveness in advising Moore not to testify on

his own behalf; and 5) a due process claim arising from the trial

court’s failure to properly weigh the probity of Lamb’s

testimony. In a prior Report and Recommendation dated September

15, 2005, I recommended that the petition be stayed pending

resolution of Moore’s third PCRA petition. On June 5, 2007,

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 7 of 26
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following the denial of his appeal in state court, Moore moved to

lift the stay and file a counseled amended habeas petition. In

the counseled amended habeas petition, Moore raises as issues: 1)

ineffective assistance of trial counsel for failing to

investigate Moore’s claims of innocence and advising Moore to

plead guilty and derivative ineffective assistance of PCRA

counsel for failing to raise the issue; 2) a due process

violation arising from the PCRA court’s failure to conduct an

evidentiary hearing into the facts raised by the Lamb affidavit;

and 3) a due process violation arising from the PCRA Court’s

dismissal of Moore’s claim of actual innocence based on Lamb’s

recantation. Thereafter, the Commonwealth filed its Response to

both the pro se claims and the new claims raised in the counseled

amended petition. Counsel then filed a Traverse Brief. I will

first discuss the claims in the counseled petition, then address

Moore’s other pro se claims. 

II. LEGAL STANDARDS

I analyze these claims according to the precepts of

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

which altered habeas review of state convictions brought under §

2254. Under AEDPA, a petitioner must demonstrate that the state

court’s adjudication of the merits “resulted in a decision that

was contrary to, or involved an unreasonable application of

clearly established Federal law, as determined by the Supreme

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 8 of 26
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Court of the United States.” See Penry v. Johnson, 532 U.S. 782,

792-92 (2001) (explaining two-prong standard); Williams v.

Taylor, 529 U.S. 362, 403-04 (2000) (same). Additionally, state

court findings of fact are to be presumed correct unless the

petitioner rebuts the presumption with clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1). This presumption applies

even if the finding was made by a state court of appeals rather

than by the state trial court. Bragg v. Galaza, 242 F.3d 1082,

1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001).

The Supreme Court has said that “a state court decision will

be ‘contrary to’ our clearly established precedent if the state

court either ‘applies a rule that contradicts the governing law

set forth in our cases,’ or ‘confronts a set of facts that are

materially indistinguishable from a decision of this Court and

nevertheless arrives at a result different from our precedent.’” 

Penry, 532 U.S. at 792 (quoting Williams v. Taylor, 529 U.S. 362,

405-06 (2000). A state court decision is an unreasonable

application of the Supreme Court’s precedent if the court

“correctly identifies the governing legal rule but applies it

unreasonably to the facts” of the case. Id. 

III. LAPRICIA JESSUP

The first issue raised in Moore’s amended counseled petition

is that trial counsel Tinari was ineffective for failing to

investigate Moore’s claims that Lapricia Jessup could have

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 9 of 26
I note that Moore also raises a derivative ineffective 4

assistance of counsel issue based upon PCRA counsel’s failing to

raise trial counsel’s ineffectiveness regarding Jessup and for

filing the Finley letter. There is no constitutional right to

counsel in a post-conviction proceeding and hence there can be no

claim for constitutionally ineffective assistance. See

Pennsylvania v. Finley, 481 U.S. 551 (1987) (establishing that

there is no constitutional right to an attorney in state

post-conviction proceedings) and Wainwright v. Torna, 455 U.S.

586 (1982) (establishing that where there is no constitutional

right to counsel there can be no ineffective assistance of

counsel claim); Coleman v. Thompson, 501 U.S. 722, 752 (1991)

(citing Finley and Torna); Dunn v. Colleran, 247 F.3d 450, 467

(3d Cir. 2001) (citing Finley).

-10-

provide exculpatory evidence. I recommend that this issue was 4

never fairly presented to the state courts and thus is

unexhausted and procedurally defaulted. In addition, I recommend

that even if it was fairly presented, the state court’s

conclusion that counsel was not ineffective was not contrary to

Supreme Court law.

A. Procedural Default

The habeas statute requires that prisoners exhaust their

claims in state court before seeking relief from the federal

courts. See 28 U.S.C. § 2254(b)(1)(A) (“An application for a

writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted unless it

appears that . . . the applicant has exhausted the remedies

available in the courts of the State.”). Absent exceptional

circumstances, a federal court may not determine the merits of a

habeas corpus petition until the petitioner has exhausted all

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 10 of 26
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means of available relief under state law. 28 U.S.C. § 3354(b);

O’Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Slutzker v.

Johnson, 393 F.3d 373, 379 (3d Cir. 2004). Principles of comity

“dictate that when a prisoner alleges that his continued

confinement for a state court conviction violates federal law,

the state courts should have the first opportunity to review this

claim and provide any necessary relief.” O’Sullivan, 526 U.S. at

844-45. The petitioner bears the burden of proving that he has

exhausted available state remedies. Landano v. Rafferty, 897

F.2d 661, 668 (3d Cir. 1990).

“Just as in those cases in which a state prisoner fails to

exhaust state remedies, a habeas petitioner who has failed to

meet the State’s procedural requirements for presenting his

federal claims has deprived the state courts of an opportunity to

address those claims in the first instance.” Coleman v.

Thompson, 501 U.S. 722,731-732 (1991). The default will be

excused if a petitioner can demonstrate cause and prejudice, or

that a failure to consider his claims will result in a

miscarriage of justice. Id. at 750. To satisfy the cause and

prejudice requirement, courts have held that cause exists when a

petitioner demonstrates “some objective factor external to the

defense impeded efforts to comply with the State’s procedural

rule.” Slutzker, 393 F.3d at 381 (quoting Murray v. Carrier, 477

U.S. 478, 488 (1986)). The cause must be “something that cannot

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 11 of 26
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fairly be attributed to the petitioner.” Coleman, 501 U.S. at

753. Prejudice means that the alleged error worked to the

Petitioner’s actual and substantial disadvantage. United States

v. Frady, 456 U.S. 152, 170 (1982). To show a fundamental

miscarriage of justice, a Petitioner must present new evidence

that he is actually innocent of the crime for which he has been

convicted. Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir. 2002). 

To establish the requisite probability of actual innocence, the

Petitioner must show that “it is more likely than not that no

reasonable juror would have convicted him in light of the new

evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The United

States Supreme Court has repeatedly held, however, that the scope

of the miscarriage of justice exception is a narrow one. Sawyer

v. Whitley, 505 U.S. 333 (1992); McCleskey v. Zant, 499 U.S. 467

(1991); Dugger v. Adams, 489 U.S. 401 (1989). This exception

only applies when “a constitutional violation has probably

resulted in the conviction of one who is actually innocent.” 

Murray, 477 U.S. at 496. The Supreme Court has suggested that

the test for actual innocence is whether there is “a fair

probability that, in light of all the evidence, including that to

have been . . . wrongly excluded or to have become available only

after trial, the trier of the facts would have entertained a

reasonable doubt of his guilt.” Kuhlmann v. Wilson, 477 U.S.

436, 454-5 n.17 (1986). 

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 12 of 26
Under Pa. Con. Stat. Ann. tit. 42, § 9545(b), a PCRA 5

petition “shall be filed within one year of the date the judgment

becomes final.” Exceptions to the one year statute of

limitations are provided in cases where the delay was the result

of interference by government officials, the facts supporting the

claim were unknown, and where the right asserted is a newly

recognized one. There is no claim that any of these exceptions

apply. As the one year period has long expired, any issue not

previously raised in the state courts has now been waived.

-13-

The procedural default in this case was Moore’s failure to

timely file a PCRA petition raising the specific issue of trial

counsel ineffectiveness involving Jessup. The record 5

demonstrates that Moore did not raise the issue on the face of

any of his PCRA petitions. Rather, he apparently mentioned it to

McDermott after she was appointed his counsel by the PCRA Court. 

Because she filed the Finley letter suggesting there was no merit

to the claim, Moore asserted that PCRA counsel McDermott – not

trial counsel Tinari – was ineffective. This, I recommend, does

not satisfy the requirement that the issue of trial counsel

ineffectiveness be fairly presented to the state courts.

In order to satisfy the exhaustion requirement, a federal

habeas claim must have been “‘fairly presented’ to the state

courts. . . . This means that 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) (internal citations omitted). A claim is not fairly

presented if the state court “must read beyond a petition or

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 13 of 26
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brief . . . that does not alert it to the presence of a federal

claim.” Baldwin v. Reese, 541 U.S. 27, 32 (2004). Mere

similarity of the federal and state issues is insufficient to

prove exhaustion. Duncan v. Henry, 513 U.S. 364, 366 (1995). 

The relevant inquiry is whether the petitioner presented in state

courts the legal theory and supporting facts asserted in the

federal habeas petition. Nara v. Frank, 488 F.3d 187, 198 (3d

Cir. 2007); Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001).

The PCRA court was clearly required to “read beyond” the

Petition, which never raised the issue of trial counsel

ineffectiveness regarding the failure to investigate or call

Jessup. In addition, Moore also failed to raise the issue in his

response to the Notice to Dismiss, wherein he raised only

McDermott’s alleged ineffectiveness. Finally, after his petition

was dismissed, Moore did not raise the issue on appeal. 

Accordingly, I recommend that the issue is unexhausted and

procedurally defaulted.

I recommend that the default cannot be excused. Moore has

failed to satisfy his burden of showing that some objective

factor external to the defense impeded his efforts to raise the

trial counsel ineffectiveness issue. Indeed, in his counseled

Traverse Brief, Moore attempts no such showing, arguing only that

the state court determinations were contrary to or an

unreasonable application of Supreme Court law. I also recommend

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 14 of 26
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that Moore has failed to demonstrate prejudice. The PCRA Court’s

findings – adopting as fact McDermott’s findings that Jessup

would not testify, and that if called she would have given highly

prejudicial testimony – are entitled to a presumption of

correctness. See 28 U.S.C. § 2254(e)(1). On this record, Moore

cannot show that the failure of trial counsel to investigate and

call Jessup worked to his actual and substantial disadvantage. 

Finally, I recommend that Moore cannot show that this

alleged failure constituted a fundamental miscarriage of justice.

Moore’s burden is to present new evidence that he is actually

innocent of the crime for which he has been convicted, i.e. that

it is more likely than not that no reasonable juror would have

convicted him had it heard Jessup’s testimony. This proposition

is highly unlikely given that Jessup would have offered clearly

inculpatory evidence had she actually testified.

B. The Strickland Standard

Even if the trial counsel ineffectiveness issue involving

Jessup had been properly preserved and exhausted, I recommend

that the state court’s adjudication of the claim was not improper

under the AEDPA standard. The clearly established Supreme Court

law governing claims of ineffective assistance of counsel is

Strickland v. Washington, 466 U.S. 668, 687 (1984), wherein the

Court established a two-pronged test to evaluate Sixth Amendment

claims of ineffective assistance of counsel. An individual

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 15 of 26
In her Finley letter, McDermott stated that Jessup appeared 6

at court during the trial but was not permitted into the

courtroom because she had her young child with her. (Response

Ex. C at 6.)

In its opinion, the Superior Court added that Moore did not 7

assert that trial counsel knew of Jessup’s existence or that

counsel should have known of her existence. I note that the

Superior Court’s finding, while binding on habeas review, is

-16-

making such a claim must show: (1) that “counsel’s performance

was deficient,” which is measured by “reasonableness under

prevailing professional norms;” and (2) that counsel’s “deficient

performance prejudiced the defense.” Id. at 687-90.

Counsel’s failure to investigate potential witnesses can

amount to ineffective assistance of counsel. United States v.

Gray, 878 F.2d 702 (3d Cir. 1989). This principle is derived

from the Strickland mandate that “counsel has a duty to make

reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Strickland, 466

U.S. at 691. However, “trial counsel is not bound by an

inflexible constitutional command to interview every possible

witness. Instead, counsel [is] simply required to exercise

reasonable professional judgment in deciding whether to interview

[a witness].” Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d Cir.

1990).

The PCRA Court determined as a matter of fact that, while

Jessup was present at the trial, she was not in the courtroom and

did not speak with defense counsel. (Response Ex. G at 6-7.) 6 7

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 16 of 26
somewhat at odds with the fact that Jessup was the mother of

Moore’s child. However, Moore’s relationship with Jessup does

not by itself satisfy Moore’s burden to show that trial counsel

was aware of the fact that Jessup had knowledge of exculpatory

facts.

Moore also cannot establish the prejudice prong of 8

Strickland. It is not enough that petitioner demonstrate that

counsel’s errors had some conceivable effect on the outcome of

the proceeding. Id. at 693. “Virtually every act or omission of

counsel would meet that test.” United States v. ValenzuelaBernal, 458 U.S. 858, 866-67 (1982). Instead, petitioner must

show that counsel’s actions were so unprofessional that they

prejudiced the jury and undermined the outcome. As I stated

above, Jessup would have offered clearly inculpatory evidence had

she actually have been called to testify. Rather than prejudice

the defense, trial counsel’s failure to call her may have aided

the defense. The failure to investigate a witness that would

have given inculpatory evidence cannot constitute prejudice.

-17-

Moore also did not assert in the state courts that Jessup was

prepared to cooperate with the defense or that she would have

testified on Moore’s behalf if trial counsel had contacted her.

(Response Ex. I at 8.) Indeed, the PCRA Court determined as fact

that Jessup, when contacted by McDermott, indicated that she

would not sign an affidavit or testify. (Response Ex. G at 6-7.) 

Because the PCRA court found that Jessup was unwilling to

testify, its decision to deny relief on that basis was not an

unreasonable application of the deficiency prong of Strickland,

as construed by the Third Circuit in Lewis. 

8

IV. PCRA COURT ERRORS

The second issue raised in the amended counseled habeas

petition is that the PCRA Court erred when it failed to hold an

evidentiary hearing on the issue of Lamb’s recantation of his

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 17 of 26
The Third Circuit noted in Abu-Jamal that even though error 9

in state collateral proceedings cannot be grounds for federal

habeas relief, the error “may affect the deference we owe the

court’s findings under § 2254(d) and 2254(e)(1).” Id. at 297

n.25 (quoting Lambert, 387 F.3d at 247). I note, specifically,

that I have taken into consideration the PCRA Court’s failure to

hold a hearing in my determination to defer to that Court’s

factual findings. Judge Geroff was not merely the PCRA judge, he

was also the trial judge in the non-jury trial. As such, he was

intimately familiar with the trial evidence and the circumstances

surrounding Lamb’s recantation.

-18-

trial testimony before concluding that the recantation was absurd

and incredible. The third issue raised in the amended counseled

habeas petition is that the PCRA Court erred when it dismissed

the PCRA petition’s claim of actual innocence based on Lamb’s

recantation. Because allegations of due process violations

occurring during state collateral review proceedings are not

cognizable on habeas review, I recommend that these issue have no

merit. See Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir.

2004) (holding that “habeas proceedings are not the appropriate

forum . . . to pursue claims of error at the PCRA proceeding. . .

. It is the original trial that is the ‘main event’ for habeas

purposes.”); Abu-Jamal v. Horn, 520 F.3d 272, 297 (3d Cir. 2008)

(agreeing with the District Court’s determination that “a viable

habeas claim cannot be predicated on petitioner’s allegation of

error in his PCRA hearing.”).9

V. THE CORONER’S REPORT

Moore argues in his pro se Petition that trial counsel

Tinari was ineffective for agreeing to stipulate to the Coroner’s

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 18 of 26
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report. This issue was raised as part of a derivative claim in

Moore’s appeal from the denial of his first PCRA Petition. The

Superior Court rejected the claim, holding, 

Appellant claims that his underlying claim [i.e. the

derivative trial counsel ineffectiveness claim] has

merit because the stipulation deprived him of the

opportunity to cross-examine the medical examiner,

resulting in a violation of Appellant’s constitutional

right to confront witnesses.

Upon review, we find this claim to be patently

meritless as Appellant fails to explain how he was

prejudiced by the stipulation. Moreover, we agree with

the Commonwealth that the stipulation was reasonable

under the circumstances because the manner and cause of

Cedano’s death was not in dispute. Accordingly, trial

counsel was not ineffective in this regard.

(Response Ex. I at 8-9.) I recommend that this determination was

not contrary to nor an unreasonable application of Supreme Court

law.

In his pro se brief, Moore essentially repeats the arguments

he made in his brief to the Superior Court, to wit, that

counsel’s stipulating to the report lent credibility to Lamb’s

testimony that the victim was shot in the back of the head. He

does not explain how counsel’s stipulating to the report was

itself a violation of professional norms, nor does he make any

showing that the Coroner’s report was subject to impeachment,

which the stipulation effectively waived. He also makes no

argument that the Superior Court decision improperly interpreted

the Strickland standard. While Moore may not have liked the

content of the report, and wished the Commonwealth had not

Case 2:05-cv-02796-EGS Document 46 Filed 10/20/08 Page 19 of 26
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offered it into evidence, the fact that trial counsel stipulated

to its entry does not establish constitutional ineffectiveness.

VI. LAMB’S TESTIMONY

The next issue raised in the pro se brief is that trial

counsel Tinari was ineffective for failing to object to Lamb’s

false testimony and/or argue prosecutorial misconduct. I

recommend that the state court’s consideration of the issue was

not an unreasonable application of Strickland. Any objection to

Lamb’s trial testimony would have proved meritless; thus Tinari’s

failure to raise the objection cannot constitute ineffective

assistance.

In deciding Moore’s third PCRA petition, Judge Geroff

rejected the factual underpinnings of any assertion that an

objection to Lamb’s trial testimony would have had any merit:

In his affidavit of April 14, 2004, Mr. Lamb asserts

that he lied when he testified at trial that the

defendant participated with him in the robbery and

murder. He now alleges that it was another man from

the neighborhood named Newton who joined him. He

states that the petitioner had left the area prior to

the robbery and shooting. Mr. Lamb gives as his reason

for saying that the petitioner was with him the fact

that the police told him that he would get the death

penalty if he did not testify against petitioner. Mr.

Lamb’s assertion is absurd and totally incredible. If

another man from the neighborhood had been involved

instead of the petitioner, Mr. Lamb could have received

the same deal for his testimony against that man as the

one he received to testify against the petitioner.

(Response Ex. K at 4-5.) The Superior Court, in affirming the

dismissal of the PCRA petition, stated:

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In rejecting Moore’s claim, the PCRA judge, who also

presided over Moore’s non-jury trial, assessed the

credibility and significance of the recantation in

light of the evidence as a whole and determined that

Lamb’s recantation was “absurd and totally incredible.” 

. . . Neither Moore nor Lamb could proffer any

explanation for why the police would ignore Newton’s

involvement in the shooting and elect to prosecute

Moore for a crime he did not commit. Further, Lamb’s

plea agreement, which was outlined on the record during

Moore’s trial, did not require Lamb to identify Moore

specifically; instead it merely required Lamb to

cooperate and testify truthfully. . . . As such the

record reveals no logical reason for Lamb to name Moore

as his accomplice unless Moore, in fact, had

participated in the robberies.

(Response Ex. M at 7.) On habeas review, the credibility

determination on Lamb’s recantation is presumed correct unless

the petitioner rebuts the presumption with clear and convincing

evidence. Moore has failed to carry this burden. 

VII. ADVISING MOORE NOT TO TESTIFY

Next, Moore asserts that trial counsel Tinari was

ineffective in advising him not to testify in his own behalf. In

addressing the issue on the first PCRA petition, Judge Geroff

stated that he:

conducted a colloquy with the defendant at the

conclusion of the Commonwealth’s case concerning the

defendant’s right to testify and his decision not to

exercise that right. . . . The record is clear that

the defendant consulted with his attorney, that he was

satisfied with the advice of counsel and that he had

not been threatened or coerced into waiving his right

to testify. The defendant fails to allege any specific

act or advice other than “ . . . advising defendant not

to testify” which could support a finding that counsel

interfered with the defendant’s right to testify or

that he gave unreasonable advice on the subject.

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On appeal, the Superior Court adopted this reasoning as 10

its own. (Response Ex. I at 5.) 

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(Response Ex. G at 5 (citations to the trial record omitted).)10

In his instant petition, Moore argues that his colloquy with the

trial judge was inadequate because his responses thereto

consisted only of monosyllabic replies to the Court’s questions,

which do not reflect that he was actually aware of the rights he

was waiving. (Pro Se Mem. at 24.) I recommend that the state

court’s consideration of the issue was not an unreasonable

application of Strickland. 

The PCRA Court’s determinations that Moore actually

consulted with Tinari on the issue of whether he should testify,

that he was satisfied with Tinari’s advice, and that he had not

been threatened or coerced into waiving his right to testify, are

factual findings which I must presume to be correct. Moore has

offered nothing to meet his burden to demonstrate they are not

correct. Further, Moore’s argument attacks not his attorney’s

advise, but rather the adequacy of the Court’s colloquy – an

issue he did not exhaust in the state courts as part of his

direct appeal. While he asserts that if he had testified he

would have refuted Lamb’s version of the events, I recommend that

this assertion is insufficient to demonstrate that the state

courts reached an improper determination of his ineffectiveness

claim. 

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Judge Geroff also determined, initially, that the issue 11

was not cognizable under the PCRA. (Response Ex. G at 3.)

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VIII. DUE PROCESS VIOLATION - NEGATING THE COMMONWEALTH’S

BURDEN OF PROOF

Moore next argues in his pro se brief that the trial judge

“in charging himself on the polluted source of James Lamb’s

testimony raised doubt which the court expressed hesitation of

the testimony truthfulness in, (the truth determining process)

deny Petitioner due process of law which negated the Commonwealth

burden of proving every element of the offense by reasonable

doubt.” (Pro Se Br. at 28.) This issue was never exhausted in

the state courts, and is procedurally defaulted with no showing

of cause and prejudice or fundamental miscarriage of justice. I

recommend that it be dismissed on this basis. 

IX. TRIAL COUNSEL COERCING MOORE TO WAIVE HIS RIGHT TO JURY

TRIAL

Finally, Moore argues that trial counsel Tinari was

constitutionally ineffective when he coerced Moore into accepting

a bench trial. In determining that this issue had no merit,11

Judge Geroff found:

Jury selection was to commence on May 3, 2000. Jury

selection was postponed to allow the defendant to

consult with his mother about his decision to be tried

by a jury or by a judge. . . . On May 4, 2000, the

defendant advised the court that he had decided to be

tried without a jury, and the court conducted an

extensive colloquy in which the court explained the

essentials of a trial by jury and the various charges

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against him including the possible penalties which

could be imposed as provided in Pa. Crim. P. 620. . . . 

The defendant indicated that he had consulted with his

attorney, that he was satisfied with his attorney’s

advice and that no one had threatened him or promised

him anything to induce him to waive his right to a jury

trial. . . . In addition, the defendant signed two

separate written jury waiver colloquies. 

(Response Ex. G at 3-4.) 

Moore did not include this issue in his subsequent appeal to

the Superior Court. (Response Ex. H at i-ii.) Because Moore did

not include the issue in his appeal to the Superior Court, I

recommend that it was never exhausted and is procedurally

defaulted with no showing of cause and prejudice or fundamental

miscarriage of justice. I recommend that it be dismissed on this

basis. 

Even if it was exhausted, I recommend that the claim is

meritless. Moore asserts in his federal habeas petition that he

waived his right to a jury trial because Tinari told him that if

he chose to take a jury, he would be put on death row, but that

Tinari could convince a judge not to give him the death penalty. 

(Pro Se Br. at 32.) He also asserts that he initially rejected a

bench trial but, during a meeting with Tinari and his mother, he

succumbed to his mother’s weaping plea that he take Tinari’s

advice. Finally, he asserts that Tinari threatened to withdraw

as counsel if he did not accept a bench trial. (Id.)

Judge Geroff’s findings that Moore made his decision to

waive a jury trial after he consulted with his attorney, that he

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was satisfied with Tinari’s advice, and that no one had

threatened him or promised him anything to induce him to waive

his right to a jury trial, are factual findings entitled to the

presumption of correctness. Moore’s factual assertions, I

recommend, are insufficient to overcome that presumption. To

meet his burden, Moore must present clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1). His factual assertions

regarding coercion, which contradict the PCRA court’s findings,

are wholly unsupported. It begs wondering why, if Moore is

correct that his mother was present when Tinari threatened to

withdraw as counsel, he has offered no affidavit or other

evidence from his mother to support his factual assertions. 

For all of these reasons, I make the following:

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RECOMMENDATION

AND NOW, this 20 day of October 2008, IT IS RESPECTFULLY th

RECOMMENDED that this matter should be DISMISSED without an

evidentiary hearing. I further RECOMMEND that there is no

probable cause to issue a certificate of appealability. 

The Petitioner may file objections to this Report and

Recommendation. See Local Civ. Rule 72.1. Failure to file

timely objections may constitute a waiver of any appellate

rights.

BY THE COURT:

 /s/ Arnold C. Rapoport 

ARNOLD C. RAPOPORT

UNITED STATES MAGISTRATE JUDGE

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