1

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STEVEN WHEATLEY, : No. 4:CV-06-01230

:

Petitioner : (Judge Jones)

:

v. : (Magistrate Judge Blewitt)

:

EDWARD KLEM, et. al, :

:

Respondents :

MEMORANDUM AND ORDER

October 18, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The Petitioner, Steven Wheatley (“Petitioner”) an inmate incarcerated at the

State Correctional Institution at Mahanoy filed this pro se Petition for Writ of

Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. In the Petition,

Petitioner challenges his March 9, 2001 conviction in the Monroe County Court of

Common Pleas with respect to his shooting of a police officer victim on three

grounds; (1) insufficient evidence to support attempted criminal attempt to commit

murder and aggravated assault convictions; (2) ineffective assistance of trial

counsel in failing to adequately investigate and obtain forensic testimony; and (3)

ineffective assistance of trial counsel in failing to request an appropriate jury

instruction. (Rec. Doc. 1 at 6-9).

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 1 of 15
1

 Upon Magistrate Judge Blewitt’s preliminary review of the record, he found that

Petitioner’s Petition was timely filed under 28 U.S.C. § 2244(d)(1).

2

The case was referred to United States Magistrate Judge Thomas M.

Blewitt.1

 Thereafter, on September 20, 2006, Magistrate Judge Blewitt issued a

Report and Recommendation (doc. 15) recommending that the Petition for Habeas

Corpus be denied with respect to its three claims. The Magistrate Judge further

recommended that the Petitioner’s Motion for Leave to Conduct Discovery and for 

Appointment of an Expert (doc. 12) be denied because no further information is

required to decide Petitioner’s habeas claims.

Objections to Magistrate Judge Mannion’s report were due by October 6,

2006. On September 29, 2006, Petitioner filed objections to the report. (Rec.

Doc. 16). The matter is therefore ripe for our review.

STANDARD OF REVIEW:

When objections are filed to a report of a magistrate judge, we make a de

novo determination of those portions of the report or specified proposed findings or

recommendations made by the magistrate judge to which there are objections. See

United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. §636(b)(1);

Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they

treat recommendations of a magistrate judge. See id. Indeed, in providing for a de

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 2 of 15
3

novo review determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of sound discretion,

chooses to place on a magistrate judge's proposed findings and recommendations. 

See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark,

749 F.2d 5, 7 (3d Cir. 1984).

FACTUAL AND PROCEDURAL BACKGROUND:

On March 9, 2001 Petitioner was found guilty, by a jury, in the Court of

Common Pleas of Monroe County, Pennsylvania, of attempted homicide and

related charges, namely aggravated assault and reckless endangerment with respect

to his shooting of Police Officer Rice. The Court also found the Petitioner guilty

of possession of a firearm by a former convict. On April 11, 2001, the Petitioner

was sentenced to an aggregate term of fifteen to thirty years incarceration.

On April 23, 2001, Petitioner filed a post-sentence motion raising several

issues regarding his finding of guilt and sufficiency of the evidence against him. 

On June 4, 2001, Petitioner also filed a motion challenging his sentence. The trial

court denied these post-sentence motions on June 29, 2001.

On July 24, 2001, the Petitioner filed a direct appeal of his judgment of his

sentence with the Superior Court of Pennsylvania. The Superior Court affirmed

the Petitioner’s conviction on August 16, 2002. On September 15, 2002, the

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 3 of 15
4

Petitioner filed a Petition for Allowance of Appeal with the Pennsylvania Supreme

Court, which the Supreme Court denied on August 26, 2003.

On April 22, 2004, the Petitioner filed a pro se Petition for Post Conviction

Relief Act (“PCRA”) with the Court of Common Pleas. Counsel was appointed to

represent Petitioner relative to his PCRA petition. On October 13, 2004,

Petitioner, through his counsel, filed an amended PCRA petition, limiting his

ineffective assistance of counsel claims to four issues, including the two ineffective

assistance of counsel claims included in the present Petition.

The Court of Common Pleas denied the PCRA petition on February 17,

2005. The Petitioner appealed to the Superior Court of Pennsylvania on March 3,

2005, and the Superior Court affirmed the Court of Common Pleas’s “excellent”

decision on October 27, 2005. (Rec. Doc. 5, Ex. 9). On November 15, 2005, the

Petitioner filed a Petition for Allowance of Appeal with the Pennsylvania Supreme

Court, which the Supreme Court denied on May 25, 2006. The current Petition

was filed on June 19, 2006.

DISCUSSION:

A. Magistrate Judge’s Summary of Standard of Review

Magistrate Judge Blewitt begins his analysis of the merits of Petitioner’s

Petition by summarizing the standard of review for challenging state convictions

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 4 of 15
2

 The AEDPA was enacted on April 24, 1996. Pub. L. 104-132, Title I, Sec. 104, 110

Stat. 1214 (1996)

5

under the Antiterrorism and Effective Death Penalty Act (“AEDPA”).2 For

purposes of completion, we shall reiterate the Magistrate Judge’s summary.

“Section 2254(d), as amended, states as follows:

(d) An application for writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court,

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the

adjudication of the claim –

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254.

The “contrary to” provision contained in Section (d)(1) is evaluated as

follows:

[T]he inquiry must be whether the Supreme Court has established a

rule that determines the outcome of the petition. Accordingly, we

adopt O’Brien’s holding that ‘to obtain relief at this state, a habeas

petitioner must show that Supreme Court precedent requires an

outcome contrary to that reached by the relevant state court.’ In other

words, it is not sufficient for the petitioner to show merely that his

interpretation of Supreme Court precedent is more plausible than the

state court’s; rather, the petitioner must demonstrate that Supreme

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 5 of 15
6

Court precedent requires the contrary outcome.

Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999)(citing

O’Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998). The appropriate standard

for the “unreasonable application clause is:

whether the state court’s application of Supreme Court precedent was

objectively reasonable. The federal habeas court should not grant the

petition unless the state court decision, evaluated objectively and on

the merits, resulted in an outcome that cannot reasonably be justified

under existing Supreme Court precedent . . . The primary significance

of the phrase ‘as determined by the Supreme Court of the United

States’ is that federal courts may not grant habeas corpus relief based

on the state court’s failure to adhere to the precedent of a lower

federal court on an issue that the Supreme Court has not addressed. 

Thus in certain cases it may be appropriate to consider the decisions

of inferior federal courts as helpful amplifications of Supreme Court

precedent.

Matteo, 171 F.3d at 889-890. Further, as the Third Circuit stated in Beneshunas v.

Klem, C.A. No. 04-2469, June 30, 2005, 2005 WL 1532441 (3d Cir.), slip op. p. 7

(Non-precedential), a writ under §2254(d)(2) may also be granted “if the state

court decision was based on an objectively unreasonable factual determination.” 

(internal citations omitted).

Section (d)(2) contains the presumption of correctness provision which

greatly heightens the degree of deference paid to a state court’s findings of fact. 

The burden is on the Petitioner to rebut the presumption by clear and convincing

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 6 of 15
3

 See supra, pages 8 through 9 for a discussion of the Petitioner’s objection to this portion

of the Magistrate Judge’s summary of the standard of review.

7

evidence. 28 U.S.C. § 2254(e)(2)(B).3

The standard of review for claims pursuant to the AEDPA has also been

stated in Lewis v. Johnson, 359 F.3d 646, 652 (3d Cir. 2004):

The AEDPA “modifie[d] the roles of federal habeas courts in

reviewing petitions filed by state prisoners.” Williams v. Taylor, 529

U.S.362, 403 (2000). “[W]e are to review the state court’s

determinations on the merits only to ascertain whether the court

reached a decision that was ‘contrary to’ or an ‘unreasonable

application’ of clearly established Supreme Court law, or whether it

made an ‘unreasonable determination’ of the facts.” Marshall v.

Hendricks, 307 F.3d 36, 51 (3d Cir. 2002). “[T]he determination

whether or not a rule is clearly established at the time a state court

renders its final judgment of conviction is a question as to which the

‘federal courts must make an independent evaluation.” Williams, 529

U.S. at 382 (quoting Wright v. West, 505 U.S. 277, 305 (1992). The

AEDPA does, however, confine the authorities on which federal

courts may rely in making this determination to the decisional law of

the Supreme Court, that is the “Federal law, as determined by the

Supreme Court of the United States.”

Id. at 381-382 (quotation omitted).

In Early v. Packer, 537 U.S. 2 (2002), the Court indicated that as long as the

state court adjudicates a claim substantively rather than procedurally, even if the

federal law is not identified as the rule of the decision, it has adjudicated the claim

on the merits for the purposes of the AEDPA.” (Rec. Doc. 15 at 6-9).

B. Merits of the Petition

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 7 of 15
8

1. Claim One: Insufficient Evidence to Support Attempted Murder and 

Aggravated Assault Convictions

Petitioner objects to the standard of review applied by Magistrate Judge

Blewitt to his sufficiency of the evidence claim. In particular, Petitioner alleges

that Magistrate Judge Blewitt should have applied the standard of review for

habeas claims brought pursuant to §2254(d)(2) espoused in Breighner v. Chesney,

301 F. Supp. 2d 354 (M.D. Pa. 2004)(Connor, J.)(aff’d Breighner v. Chesney, 156

Fed Appx. 539 (3d Cir. 2005)).

In Breighner, the district court held that §2254(e)(1), which states:

In a proceeding instituted by an application for writ of habeas corpus

by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidences

does not apply to §2254(d)(2). The district court held that “[t]he federal habeas

court’s analysis under this subsection is limited to the record available to the state

trial court . . . and encompasses two questions: (1) whether a factual determination

of the state court was “unreasonable” in light of the state record, and (2) whether

the state court’s decision was “based” on that unreasonable determination. Id. at

368. Moreover, the district court held that “a factual determination should be

adjudged “unreasonable” under paragraph (2) only if the court finds that a rational

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 8 of 15
9

jurist could not reach the same finding on the basis of the evidence in the record.

A review of the Magistrate Judge’s report reveals that he indeed applied

subsection (e)(1) to subsection (d)(2) despite the holding of Breighner. 

Accordingly, because the standard has since evolved, we find it incumbent upon

the Court to apply the Breighner standards to Petitioner’s sufficiency of the

evidence claims. Because we find that Magistrate Judge Blewitt, who is more

intimately familiar with the complexities of the record than we are, is in a better

position to undertake the necessary analysis under Breighner, we shall remand this

issue for his consideration. It may well be that an analysis of Petitioner’s claims

under Breighner will lead the Magistrate Judge to the same result, however, in the

interests of justice and caution, we shall remand the issue for the Magistrate

Judge’s analysis.

The Petitioner also objects to the portion of the Magistrate Judge’s report

that quotes the Superior Court’s opinion, stating that Officer Vacarro sprayed the

Petitioner in the face with pepper spray. Petitioner notes that the Magistrate Judge

misquoted the Superior Court’s opinion in that that Officer Rice, the victim of the

shooting, in fact “emerged from a secreted position to shock and awe Petitioner by

spraying mace directly into Petitioner’s face. This distinction is important.” (Rec.

Doc. 16 at 1). The Magistrate Judge did, in fact, misquote the Superior Court’s

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 9 of 15
10

opinion. (Rec Doc. 15 at 12; doc. 5, Ex. 2 at 3).

 Despite Petitioner’s allegation that the distinction of whom sprayed him

with pepper spray is an important one, we disagree. It is of no moment to the

Magistrate Judge’s analysis which officer actually sprayed the mace into the

Petitioner’s face, because Petitioner’s theory of accidental or involuntary shooting

does not depend on which individual sprayed him with pepper spray. Therefore,

regardless of whether Magistrate Judge Blewitt misquoted the Superior Court’s

opinion, he did not appear to rely on the misquoted fact. However, inasmuch as

this claim will be remanded for the Magistrate Judge’s analysis, he will have an

opportunity to correct the misquoted portion of the Superior Court’s opinion, or

clarify for the record that Officer Rice, not Officer Vacarro, deployed pepper spray

upon the Petitioner.

2. Claim Two: Ineffective Assistance of Trial Counsel in Failing to 

Adequately Investigate and Obtain Forensic Testimony

Petitioner objects to Magistrate Judge Blewitt’s recommendation that this

Court deny his ineffective assistance of counsel claim based upon his allegation

that trial counsel was ineffective by failing to adequately investigate and obtain

forensic testimony. Specifically, Petitioner alleges that if proper forensic

testimony had been obtained, it would have shown that the center-mass of the

shotgun discharge “widely missed” Officer Rice, raising an inference that

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 10 of 15
11

Petitioner did not shoot Officer Rice intentionally.

As noted by the Magistrate Judge, Strickland v. Washington, 466 U.S. 668,

687 (1984) lays out a two-part test to determine whether trial counsel was

ineffective. First, a petitioner must show that trial counsel’s performance fell

below an objective standard of reasonableness under the prevailing professional

norms. In order to prove trial counsel was deficient, a petitioner must show that

“counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the sixth amendment.” Id. Furthermore, the court is to

grant deference to trial counsel in evaluating his performance. Id. With respect to

the second prong, a petitioner must show that the deficient performance so

prejudiced the defense that the defendant was deprived of a fair trial. Id. 

Accordingly, a petitioner must show that but for the deficient performance of trial

counsel, there would have been a reasonable probability of a different outcome. 

Reinert v. Larkins, 2004 WL 1774593, *17 (3d Cir. 2004).

Petitioner’s trial counsel testified at Petitioner’s PCRA hearing that he

contacted three ballistics experts prior to Petitioner’s trial. Counsel testified that he

was told by one expert that he could not testify regarding the projectory in the

Petitioner’s case because it was a close range shooting with a shotgun. As

aforementioned, the theory of Petitioner’s defense was that the shooting was

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 11 of 15
12

accidental and not intentional, and Petitioner’s belief was that a ballistics expert’s

testimony could raise an inference that Petitioner did not intend to shoot Officer

Rice due to the location of the gunshot wound and the scattering of the shotgun

pellets. 

We agree with Magistrate Judge Blewitt’s holding that Petitioner cannot and

did not show that his counsel’s performance was deficient with respect to failure to

call a ballistics expert. Counsel testified that he did in fact contact ballistics

experts and discuss the facts of Petitioner’s case with them. As noted, counsel

further testified that he was told by an expert that due to the nature and proximity

of the shooting, testimony to support Petitioner’s theory could not be produced. 

Based upon trial counsel’s testimony, we cannot find his failure to call a ballistics

expert to be objectively unreasonable. It is apparent that trial counsel took the

necessary steps to determine whether a ballistics expert’s testimony could support

the defense theory of the case. When trial counsel was informed that no such

testimony could be rendered, his decision not to call a ballistics expert was

reasonable in light of the circumstances. We thus cannot find that trial counsel’s

performance was deficient in this regard, and accordingly, we will adopt the

Magistrate Judge’s recommendation that Petitioner’s ineffective assistance of

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 12 of 15
4

 In so adopting the Magistrate Judge’s recommendation, we shall deny Petitioner’s

Motion for Leave to Conduct Discovery and for Appointment of an Expert (doc. 12) because we

find no basis to Petitioner’s second claim, upon which the said motion is grounded.

13

counsel claim with respect to forensic testimony be denied.4

3. Claim Three: Ineffective Assistance of Trial Counsel in Failing to 

Request an Appropriate Jury Instruction

Petitioner objects to Magistrate Judge Blewitt’s recommendation that this

Court deny his ineffective assistance of counsel claim based upon his allegation

that trial counsel was ineffective by failing to request an appropriate jury

instruction. Petitioner alleges that his action of shooting Officer Rice was

involuntary, and that counsel should have requested a jury instruction addressing

the same. Therefore, Petitioner alleges that Magistrate Judge Blewitt’s analysis

regarding trial counsel’s failure to request a jury instruction for homicide by

misadventure or self-defense fails to address the nature of his third habeas claim.

Although not precisely stated, a review of Petitioner’s Petition and brief in

support of his Petition (docs. 1 and 4) indicates that he claims counsel was

ineffective by failing to request a jury instruction regarding involuntariness. In his

Petition, Petitioner cites as ground three for his claim that “[t]rial counsel rendered

ineffective assistance when he failed to request an appropriate jury instruction. 

There was no reasonable basis for counsel’s failure to request an appropriate and

meritorious jury instruction which would have guided jurors in the relevant law

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 13 of 15
5

 On the original of the Petition, this passage appears on what is marked as Page 9.

14

toward a correct evaluation of the defense case/testimony.” (Rec. Doc. 1 at 8).5

While the language found in the Petition is broad, in his brief, Petitioner

specifically cites a case dealing with the failure of counsel to request a charge

regarding the involuntariness of the defendant’s actions. (Rec. Doc. 4 at 16-18);

See Commonwealth v. Fierst, 620 A.2d 1196 (Pa. Super. 1993). 

Inasmuch as the Report and Recommendation does not address trial

counsel’s alleged ineffectiveness regarding the failure to request an involuntariness

instruction, in the interest of caution and completeness, we also find it prudent to

remand this issue to the Magistrate Judge for his consideration. As

aforementioned, the Magistrate Judge is better suited to dispose of this issue than

are we, due to his familiarity with the case and issues at hand.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Report and Recommendation (doc. 15) is ADOPTED to the

following extent:

a. Claim Two of the Petition, Ineffective Assistance of Counsel in

Failing to Adequately Investigate and Obtain Forensic

Testimony, is DENIED.

b. Petitioner’s Motion for Leave to Conduct Discovery and for

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 14 of 15
15

Appointment of an Expert (doc. 12) is DENIED.

2. Claims One and Three are remanded to the Magistrate Judge for the

reasons cited herein.

3. The Magistrate Judge shall issue a further Report and

Recommendation in conformity with this Memorandum and Order on

Claims One and Three.

s/ John E. Jones III

John E. Jones III

United States District Judge

Case 4:06-cv-01230-JEJ Document 18 Filed 10/18/06 Page 15 of 15