IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

GREGORY ORLANDO FANN, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-14-456

:

VINCENT T. MOONEY, : (Judge Brann)

:

Respondent :

MEMORANDUM

April 22, 2016

Background

This pro se habeas corpus action pursuant to 28 U.S.C. § 2254 was filed by 

Gregory Orlando Fann, an inmate presently confined at the Fayette State

Correctional Institution, LaBelle, Pennsylvania (SCI-Fayette). By Memorandum

and Order dated April 10, 2014, this Court granted Petitioner’s motion for stay

and administratively closed his case pending disposition of Fann’s state court

petition pursuant to Pennsylvania’s Post Conviction Relief Act (PCRA).1

 See

1 See 42 Pa. Cons. Stat. Ann. § 9541 et seq. The PCRA “permits motions for

post-conviction collateral relief for allegations of error, including ineffective

assistance of counsel, unlawfully induced guilty pleas, improper obstruction of rights

to appeal by Commonwealth officials, and violation of constitutional provisions." 

Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991).

1

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 1 of 18
Doc. 3. 

After Petitioner notified this Court that his state PCRA proceedings had

concluded, an Order was issued on December 15, 2015 which lifted the stay,

reopened the case, and ordered service of the Petition. See Doc. 10. This matter is

now ripe for consideration.

Fann was convicted of first degree murder, criminal solicitation to commit

homicide, theft, and robbery on February 16, 2010 following a non-jury trial in the

Court of Common Pleas of Luzerne County, Pennsylvania.2

 The charges stemmed

from the shooting death of Aaron Witko on May 29, 2008. According to evidence

presented at trial, the victim agreed through an intermediary to illegally sell a rifle

to the Petitioner for money and drugs. Witko and Fann along with two other

individuals then met for the purpose of completing the illegal transaction. 

However, when Witko produced the rifle Fann allegedly shot him multiple times

with a handgun and took the rifle. Fann was identified by the two eyewitnesses as

being the shooter.3

 On March 9, 2010, Petitioner was sentenced to a term of life

2

 The parties acknowledge that the Commonwealth agreed not to seek the death

penalty if Petitioner waived his right to a jury trial.

3 While incarcerated awaiting trial Petitioner attempted to arrange for the

murders of the two eyewitnesses. This conduct was the basis for his conviction of

criminal solicitation to commit homicide.

2

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 2 of 18
imprisonment without parole on the murder charge and an additional aggregate 5

to 22 year term on the remaining charges. Following denial of post-trial motions,

Petitioner filed an appeal to the Superior Court of Pennsylvania which was denied

on March 11, 2011. See Commonwealth v. Fann, 26 A.3d 1189 (Pa Super 2011). 

A petition for allowance of appeal was subsequently denied by the Pennsylvania

Supreme Court on July 19, 2011. See Commonwealth v. Fann, 24 A.3d 863 (Pa

2011)

On June 11, 2012, Fann filed a pro se PCRA petition with the trial court

asserting various claims of ineffective assistance of counsel. Following

appointment of counsel and an evidentiary hearing, the trial court issued an Order

denying relief on October 22, 2013. The Superior Court affirmed the denial of

PCRA relief on December 22, 2014. Fann’s petition for allowance of appeal was

denied by the Pennsylvania Supreme Court on February 10, 2015. As previously

indicated, the pending § 2254 action was filed on March 11, 2014 during the

pendency of Fann’s PCRA appeal before the Superior Court.

Petitioner’s pending action initially claims entitlement to federal habeas

corpus relief on the basis that the evidence was insufficient to sustain the guilty

verdict on the first degree murder charge. See Doc. 1, ¶ 12, Ground One. 

Petitioner generally alleges that his conviction was not adequately supported

3

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 3 of 18
because the Commonwealth presented false evidence regarding the murder

weapon. Ground Two vaguely contends that the trial court erred in denying

Petitioner’s motion to suppress. 

According to Grounds Three through Nine, trial counsel provided

ineffective assistance by: failing to obtain and review discovery including phone

records; not investigating eyewitnesses; forcing Fann to forego a jury trial; not

seeking a mistrial on the basis that the trial judge slept through part of the

testimony and that the Commonwealth committed prosecutorial misconduct by

mentioning Petitioner’s alleged gang affiliation; failing to impeach the testimony

of Trooper Brogan; and neglecting to present a proper trial strategy that another

individual who had purchased the murder weapon was the person who committed

the crime.

Respondent seeks dismissal of the Petition on the basis that Fann, at best,

only exhausted one of his pending arguments for relief. Alternatively, the

Respondent maintains that dismissal is appropriate because Petitioner’s claims for

relief lack merit.

Procedural Default

The Respondent asserts that, “save perhaps one”, the arguments raised in

the pending petition have not been exhausted before the Pennsylvania state courts. 

4

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 4 of 18
Doc. 14, p. 12. Although Respondent acknowledges that Fann’s PCRA action

before the trial court raised eleven issues of ineffective assistance, it is argued that

Fann’s PCRA appeal only raised the sole issue that purported ineffectiveness of

trial counsel rendered the Petitioner’s waiver of his right to a jury trial involuntary

and unknowing. See id. at p. 13. Despite being granted an opportunity to do so

Petitioner has not filed a reply to this argument.

Title 28 United States Code Section 2254(b)(1) provides that an application

for a writ of habeas corpus filed on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless the applicant has exhausted

the remedies available in the courts of the State; or there is an absence of available

state corrective process; or there are existing circumstances which render the state

process ineffective. The exhaustion requirement is not a mere formality. It serves

the interests of comity between the federal and state systems, by allowing the state

an initial opportunity to determine and correct any violations of a prisoner’s

federal rights. Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004). 

The United States Court of Appeals for the Third Circuit has stated that

“[U]nder 28 U.S.C. § 2254(c), such a petitioner ‘shall not be deemed to have

exhausted the remedies available in the courts of the State ... if he has the right

under the law of the State to raise, by any available procedure, the question

5

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 5 of 18
presented.” Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001). 

“A state prisoner is generally barred from obtaining federal habeas relief

unless the prisoner has properly presented his or her claims through one ‘complete

round of the State’s established appellate review process.’” Woodford v. Ngo,

548 U.S. 81, 92 (2006) (internal citations omitted); O'Sullivan v. Boerckel, 526

U.S. 838, 844-45 (1999)(while exhaustion does not require state prisoners to

invoke extraordinary remedies, the state courts must be afforded one full

opportunity to resolve any constitutional issues via completion of the State's

established appellate review process). The United States Supreme Court in

O’Sullivan explained, that state prisoners must “file petitions for discretionary

review when that review is part of the ordinary appellate review procedure in the

State.” Id. at 847. The Supreme Court added that, in determining whether a state

prisoner has preserved an issue for presentation in a federal habeas petition, it

must be determined not only whether a prisoner has exhausted his state remedies,

but also whether he has properly exhausted those remedies, i.e., whether he has

fairly presented his claims to the state courts. See id. at 848.

Fair presentation requires that the “substantial equivalent” of both the legal

theory and the facts supporting the federal claim are submitted to the state courts,

and the same method of legal analysis applied in the federal courts must be

6

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 6 of 18
available to the state courts. Evans v. Court of Common Pleas, 959 F. 2d 1227,

1230 (3d Cir. 1992); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). 

Moreover, to satisfy exhaustion, the state court must be put on notice that a federal

claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). The

exhaustion requirement is satisfied if the petitioner’s claims are presented through

a collateral proceeding, such as a petition under the PCRA, and it is not necessary

to present federal claims to state courts both on direct appeal and in a PCRA

proceeding. Evans, 959 F.2d at 1230.

When a claim has not been fairly presented to the state courts but further

state-court review is clearly foreclosed under state law, exhaustion is excused on

the ground of futility. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000);

Toulson v. Beyer, 987 F.2d 984, 987-88 (3d Cir. 1993). Such a claim is

procedurally defaulted, not unexhausted. A federal habeas court cannot review a

procedurally defaulted claim, “if the decision of [the state] court rests on a state

law ground that is independent of the federal question and adequate to support the

judgment.” Beard v. Kindle, 558 U.S. 53, 55 (2009). Procedural default can only

be excused if a petitioner can show “cause” and “prejudice” or that a “fundamental

miscarriage of justice” would result. Edwards v. Carpenter, 529 U.S. 446, 451

(2000).

7

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 7 of 18
A copy of the Superior Court’s decision with respect to Fann’s direct appeal

shows that Petitioner raised claims that the evidence was insufficient to sustain the

verdict; the verdict was against the weight of the evidence; and the trial court

erred in denying his pre-trial motion to suppress. See Doc. 14-5, pp. 15-16. As

noted by the Superior Court, Fann’s PCRA’s appeal raised only issue for review,

specifically that due to the ineffective assistance of counsel Petitioner’s waiver of

his right to a jury was not knowing and voluntary. See Doc. 14-8., p. 98.

Based upon a liberal review of the Petition, Grounds One (insufficient

evidence) , Two (improper denial of motion to suppress), and a portion of Ground

Three (the invalid waiver of jury trial related claim) were sufficiently raised before

the Pennsylvania state courts. However, the remaining habeas corpus arguments

presently before this Court were not addressed on their merits by the Pennsylvania

state appellate courts. It is equally apparent that given the passage of time and the

fact that Petitioner has already pursued both a direct appeal and a PCRA action,

those arguments have been procedurally defaulted in state court. It is particularly

noted that although the arguments at issue were presented before the trial court via

Fann’s PCRA petition, he offers no explanation as to why they were not included

in his PCRA appeal to the Superior Court. Petitioner’s failure to do so resulted in

the procedural default of those claims. 

8

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 8 of 18
Thus, Fann has presented this Court with a mixed petition, specifically, one

containing both exhausted and procedurally defaulted claims. The United States

Supreme Court has recognized that if a habeas corpus petition containing both

exhausted and unexhausted claims is presented, then the entire petition must be

dismissed. Rose v. Lundy, 455 U.S. 509, 522 (1982). However, “a petition

containing unexhausted but procedurally barred claims in addition to exhausted

claims is not a mixed petition requiring dismissal under Rose." Toulson v. Beyer,

987 F.2d 984, 987 (3d Cir. 1993); see also Castille v. Peoples, 489 U.S. 346, 351

(1989). 

Given Petitioner’s failure to offer any explanation whatsoever as to why he

did not include his procedurally defaulted arguments in his PCRA appeal to the

Superior Court he has failed to establish cause and resulting prejudice for his

procedurally defaulted ineffective assistance of counsel arguments. There is also

no basis for a finding that a fundamental miscarriage of justice would result if said

claims were not addressed on their merits. The Respondent’s request for dismissal

of the petition with exception of Fann’s exhausted claims (Grounds One, Two, and

a portion of Ground Three (the invalid waiver of jury trial related claim) will be

granted.

Standard of Review

9

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 9 of 18
“The Antiterrorism and Effective Death Penalty Act of 1996 modified a

federal habeas court’s role in reviewing state prisoner applications in order to

prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given

effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). 

Specifically, when a federal-law issue has been adjudicated on the merits by a state

court, the federal court reverses only when the decision was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).4

 See

generally, Knowles v. Mirzayance, 556 U.S. 111, 114 (2009); Gattis v. Snyder,

278 F.3d 222, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95, 104-05 (3d Cir.

2001). The United States Supreme Court has held that the “contrary to” and

“unreasonable application” clauses of § 2254(d)(1) have independent meaning. 

Williams v. Taylor, 529 U.S. 362, 404-405 (2000). As explained in Bell, 535 U.S.

at 694: 

4 Specifically, 28 U.S.C. § 2254(d)(1) provides:

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

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; . . . 

10

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 10 of 18
A federal habeas court may issue the writ under the

‘contrary to’ clause if the state court applies a rule

different from the governing law set forth in our cases, or

if it decides a case differently than we have done on a set

of materially indistinguishable facts. . . . The court may

grant relief under the ‘unreasonable application’ clause if

the state court correctly identifies the governing legal

principle from our decisions but unreasonably applies it

to the facts of the particular case. . . . The focus of the

latter inquiry is on whether the state court’s application

of clearly established federal law is objectively

unreasonable . . . .

Furthermore, resolution of factual issues by the state courts are presumed to be

correct unless the petitioner shows by clear and convincing evidence that they are

not. 28 U.S.C. § 2254(e) (1). 

In summary, the appropriate inquiry for federal district courts in reviewing

the merits of Section 2254 petitions is whether the state court decisions applied a

rule different from the governing law set forth in United States Supreme Court

cases, decided the case before them differently than the Supreme Court has done

on a set of materially indistinguishable facts, or unreasonably applied Supreme

Court governing principles to the facts of the particular case. See Keller v.

Larkins, 251 F.3d 408, 417-18 (3d Cir. 2001) (a district court entertaining a § 2254

action must first address whether the state court decision was contrary to Supreme

Court precedent); Martini v. Hendricks, 188 F. Supp.2d 505, 510 (D. N.J. 2002) (a

§ 2254 applicant must show that the state court decision was based on an

11

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 11 of 18
unreasonable determination of facts in light of evidence presented in the state court

proceeding). Findings of fact by the state courts are presumed to be correct unless

the petitioner shows by clear and convincing evidence that they are not. 28 U.S.C.

§ 2254(e)(1).

Insufficient Evidence

Ground One generally argues that the evidence was insufficient to sustain

the guilty verdict with respect to his first degree murder conviction. Fann vaguely

contends that because the eyewitnesses had reason to lie and evidence was

presented which showed that his handgun was a different color than the murder

weapon, he is entitled to federal habeas corpus relief.

The standard of review used by a federal court when addressing the issue of

sufficiency of the evidence is “whether after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia,

443 U.S. 307, 319, reh'g denied, 444 U.S. 390 (1979).

Under Pennsylvania state law in order to support a conviction for first

degree murder it must be established a person was killed; the defendant is

responsible for the killing; and the defendant acted with malice and a specific

intent to kill. Based on an application of the standards announced in Jackson, there

12

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 12 of 18
was clearly sufficient evidence that supported the first degree murder conviction

reached by the trial court judge. Specifically, as noted by the Superior Court in the

direct appeal there was testimony presented by two eyewitnesses who both

identified Petitioner as being the person who shot the victim. See Doc. 14-5, pp.

11-23. There was also testimony that Fann brought a gun to the meeting with the

victim, shot him in the back, and thereafter attempted to cover up the crime. Other

testimony offered during trial established that the murder weapon was discovered

in the Petitioner’s bedroom. This testimonial evidence along with the forensic

evidence presented clearly could support a finding that Fann committed the murder

with specific intent, thus sufficiently supporting a first degree murder conviction. 

Petitioner is not entitled to relief with respect to Ground One.

Motion to Suppress

Ground Two contends that the trial court erred in denying his motion to

suppress. Petitioner did file a pre-trial motion to suppress statements he gave to

investigators. See Doc.14-1, p. 6. He also filed an unsuccessful pre-trial motion to

suppress statements given by an inmate informant pertaining to the criminal

solicitation charge. See id. at p. 59. 

His pending Petition does not provide any discernible explanation as to why

he feels that either or both of those motions were improperly denied. For instance

13

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 13 of 18
there is no argument by Petitioner that there was a violation of his right against self

incrimination as guaranteed under Miranda v. Arizona, 384 U.S. 436 (1966). 

Rather, Fann’s argument simply points out what he deems are material

inconsistencies in the testimony presented against him at trial. 

Federal habeas corpus review is generally not available to adjudge the

correctness of a state court evidentiary ruling such as the admission of testimony. 

Based upon a liberal review of Petitioner’s argument there are no facts presented

which would warrant a determination that the trial court’s denial of a pre-trial

motion to suppress constituted an unreasonable application of clearly established

federal law. Relief will be denied with respect to Ground Two. 

Ineffective Assistance of Counsel

Petitioner’s remaining exhausted claim asserts that his trial counsel provided

ineffective assistance by advising him to waive his right to a jury trial. Respondent

notes that Petitioner’s trial counsel gave PCRA hearing testimony that there were

extensive discussions with Fann regarding the advantages and disadvantages of a

jury trial. See Doc. 14, p. 6. During those discussions, the Commonwealth’s offer

to not seek the death penalty if Petitioner elected to proceed with a non-jury trial

was given consideration.

In Strickland v. Washington, 466 U.S. 668, 688 (1984), the Supreme Court

14

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 14 of 18
held that to prove a constitutional violation for ineffective assistance of counsel, a

habeas petitioner must meet a two-pronged test. The petitioner must show “that

counsel’s performance was deficient” and that “the deficient performance

prejudiced the defense." Id. at 687; accord Deputy v. Taylor, 19 F.3d 1485, 1493

(3d Cir. 1994). In Deputy, the Court of Appeals also noted that it was not bound

by any state court determinations as to a counsel's performance. Id. at 1494.

To demonstrate deficient performance, a petitioner must show that

“counsel’s performance fell below an objective standard of reasonableness.” 

Strickland, 466 U.S. at 688; Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). A

reviewing court must “indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Strickland, 466 U.S.

at 689; Jermyn, 266 F.3d at 282; Berryman v. Morton, 100 F.3d 1089, 1094 (3d

Cir. 1996). If, under the circumstances, counsel’s actions might be considered

sound trial strategy, the presumption is not rebutted, Strickland, 466 U.S. at 689,

because “substantial deference is to be accorded counsel’s tactical decisions.” 

United States v. Wiener, 127 F. Supp. 2d 645, 648 (M.D. Pa. 2001). A decision

supported by “reasonable professional judgment does not constitute ineffective

assistance of counsel. See Burger v. Kemp, 483 U.S. 776, 794 (1987). It follows

that counsel cannot be deemed ineffective for pursuing a meritless claim. Hartey

15

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 15 of 18
v. Vaughn, 186 F.3d 367, 372 (3d Cir. 1999).

A petitioner satisfies the second prong and show prejudice when “there is a

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

the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466

U.S. at 694; Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992) “Without proof

of both deficient performance and prejudice to the defense . . . it could not be said

that the sentence or conviction resulted from a breakdown in the adversary process

that rendered the result of the proceeding unreliable, and the sentence or conviction

should stand.” Bell, 535 U.S. at 695 (internal quotations and citation omitted).5

 At

the time of Petitioner’s state court proceedings, Strickland’s familiar two-pronged

test was the “clearly established federal law” applicable to ineffective assistance of

counsel claims. 

Specifically, under Pennsylvania state jurisprudence, a three-prong test is

applied to ineffective assistance of counsel claims, but is, in substance, identical to

the Strickland test. See, e.g., Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa.

1987). The Court of Appeals has held that Pennsylvania’s test for assessing

5 A court may choose to address the prejudice prong first and reject an

ineffective assistance claim solely on the basis that the defendant was not prejudiced. 

See Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006).

16

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 16 of 18
ineffective assistance of counsel claims is not contrary to Strickland. Jacobs v.

Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005); Werts v. Vaughn, 228 F.3d 178, 204

(3d Cir. 2000). Thus, it cannot be said that the state courts applied rules contrary

to prevailing principles established by the Supreme Court for the adjudication of

ineffective assistance claims. 

Accordingly, under § 2254(d)(1), the relevant inquiry in addressing the

pending ineffectiveness claim is whether the Pennsylvania state courts’ decisions

involved an unreasonable application of Strickland or were based on an

unreasonable determination of the facts. Jacobs, 395 F.3d at 107 n.9; Werts, 228

F.3d at 204.

As noted by the Superior Court in reviewing Petitioner’s PCRA appeal,

there was extensive discussion between trial counsel and Petitioner as to the pros

and cons of waving his right to a jury trial. Of particular significance during those

talks was consideration of the Commonwealth’s agreement not to seek the death

penalty if Fann proceed to a non-jury trial. The Superior Court concluded that

since avoidance of the death penalty was a reasonable tactical decision, trial

counsel’s advice that Petitioner proceed to a non-jury trial did not constitute

ineffective assistance. 

Petitioner has not presented this Court with any facts or arguments which

17

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 17 of 18
would support a determination that the Superior Court’s decision was contrary to

or constituted an unreasonable application of clearly established Federal law. This

Court likewise agrees that the decision by trial counsel to avoid possible

imposition of the death penalty by advising Petitioner to proceed with a non-jury

trial was a sound and reasonable tactical strategy. See Parrish v. Fulcomer, 150

F.3d 326, 328 (3d Cir. 1998).

Conclusion

In conclusion, despite having been afforded a liberal review by this Court,

Fann has not satisfied his burden of establishing any entitlement to federal habeas

corpus. An appropriate Order will enter.

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

18

Case 4:14-cv-00456-MWB-JVW Document 15 Filed 04/25/16 Page 18 of 18