UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT HOSBY, : CIVIL NO: 4:13-CV-00407

 :

Petitioner, :

 : (Judge Brann)

v. :

 : 

STEVEN GLUNT, :

 : (Magistrate Judge Schwab)

Respondent.

1

 :

REPORT AND RECOMMENDATION

The petitioner, Robert Hosby (“Hosby”), an inmate presently confined at

SCI Rockview in Bellefonte, Pennsylvania, filed this pro se habeas corpus petition 

pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his Dauphin 

County, Pennsylvania conviction and sentence for first-degree murder. Having 

 

1 Under 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 

Cases in the United States District Courts, the proper respondent in a federal 

habeas corpus action is the person having custody over the petitioner. See Alleyne 

v. Rozum, No. 4:07-CV-871, 2007 WL 1520093, at *1 (M.D. Pa. May 21, 2007) 

(finding that the only proper respondent in a § 2254 habeas corpus petition is the 

petitioner‟s custodial official at the state correctional institution where the 

petitioner is confined). In this case, the proper respondent is Steven Glunt, the 

Superintendent at SCI Rockview. Therefore, neither the Pennsylvania Attorney 

General nor the Dauphin County District Attorney‟s Office is a proper respondent. 

See also Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 462 (3d Cir. 

1996) (detailing that if, on remand, the complaint sounds in habeas corpus, and not 

civil rights, an assistant district attorney would not be a proper respondent under 

Rule 2(a) of the Rules Governing Section 2254 Cases).

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reviewed Hosby‟s petition, along with the parties‟ respective arguments and

exhibits, we recommend that Hosby‟s petition be denied. 

 I. Background and Procedural History.

The Superior Court of Pennsylvania aptly summarized the facts leading to 

Hosby‟s arrest as follows:

While drinking at a local bar, [Hosby] and his cousin, Tamara 

Hosby, encountered Tara Layton and her friends and arranged 

for Tamara to fight Soraya Layton, Tara‟s cousin. The fight was 

arranged because Soraya provided the Harrisburg Police 

Department with information related to criminal activity 

involving Tamara‟s brother. During the early morning hours of 

October 8, 2006, [Hosby] drove Tamara to Tara‟s residence at 

2118 Susquehanna Street to engage in the pre-arranged fist fight 

with Soraya. 

When [Hosby] and Tamara arrived at the location, they exited 

the vehicle and walked together along the sidewalk towards 

Tara‟s residence, and Tamara shouted at Soraya as she 

approached the residence. Soraya turned around to walk away; 

however, Tamara grabbed her hair and punched her in the face, 

leading to the physical altercation. [Hosby] urged Tamara to 

“beat Soraya up” as the fight was occurring. 

Anthony Chadwick, Tara‟s boyfriend, broke up the fight between 

Soraya and Tamara and they walked away from the residence 

still arguing. Around the same time, [Hosby] and Tara were 

arguing about the winner of the altercation between Soraya and 

Tamara. [Hosby] punched Tara in the face, and Anthony 

intervened and pushed [Hosby] away. [Hosby] then turned away 

and walked to his car.

Witnesses testified that once [Hosby] arrived at his vehicle, he 

opened the door and reached inside, pulled out a gun and placed 

it in his rear pocket. After witnessing [Hosby] loading the gun 

and placing it in his rear pocket, Tara‟s cousin, Laticia Jackson, 

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instructed him to leave. He ignored the demand and walked 

towards Tara‟s residence, intoning, “They keep running their 

mouth.” When [Hosby] approached the residence, Tara grabbed 

a plastic lawn chair and ran towards him. As she was shouting 

for him to leave, she hit [Hosby] a few times with the chair and 

pieces of the chair went flying. [Hosby] backed away, pulled out 

his gun and shot Tara in the chest, killing her instantly. After 

shooting Tara, [Hosby] turned away, returned to his car and left 

with Tamara.

Doc. 12-6 at 24-25.

Hosby was later arrested and processed by the City of Harrisburg, Bureau of 

Police. Doc. 12-5 at 4. Following his arrest, Hosby proceeded to a jury trial in 

Dauphin County, Pennsylvania on charges of first-degree murder, aggravated 

assault, retaliation against a witness or victim, criminal conspiracy aidingretaliation against a witness or victim, criminal conspiracy aiding-simple assault, 

unlawful possession of a firearm, unlawfully firing a weapon within city limits,

carrying a firearm without a license, tampering with/fabricating physical evidence,

and recklessly endangering another person. Doc. 12-4 at 5. On October 11, 2007, 

a jury convicted Hosby of first-degree murder, criminal conspiracy, recklessly 

endangering another person, firearms possession, carrying a firearm without a 

license, and unlawfully firing a weapon within city limits. Id. at 5-6. On 

December 19, 2007, Hosby was sentenced to life imprisonment. Id. at 9. Hosby, 

thereafter, directly appealed his conviction and sentence to the Superior Court of 

Pennsylvania and presented the following issues for consideration:

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1. Whether the evidence presented at trial was sufficient to 

prove the appellant committed voluntary manslaughter rather 

than first[-]degree murder;

2. Whether the evidence presented at trial was insufficient to 

prove beyond a reasonable doubt criminal conspiracy to 

commit simple assault;

3. Whether the evidence presented at trial was insufficient to 

prove beyond a reasonable doubt reckless endangerment of 

other persons (Soraya Layton and/or Latisha Jackson);

4. Whether the trial court erred in denying the appellant‟s 

motion for new [sic] trial and in arrest of judgments because 

the jury‟s verdicts were against the weight of the evidence 

presented; and

5. Whether the trial court erred in refusing to instruct the jury 

that lack of any injuries on the petitioner does not negate 

serious provocation on a voluntary manslaughter instruction.

Doc. 12-5 at 4-5. On December 17, 2008, the Superior Court of Pennsylvania

affirmed the trial court‟s judgment of sentence, and on May 27, 2009, the 

Pennsylvania Supreme Court denied Hosby‟s petition for allowance of appeal on 

the same issues. Id. at 18, 26, 49. Furthermore, there is nothing in the record to 

reflect that Hosby filed a petition for certiorari in the United States Supreme Court 

on direct appeal. 

On August 26, 2009, Hosby subsequently filed a pro-se petition pursuant to 

Pennsylvania‟s Post Conviction Relief Act (“PCRA”). See Doc. 12-5 at 51. In his 

PCRA petition, Hosby presented the following:

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Counsel was ineffective for failing to investigate, failing to 

[move] for a change of venue, for inducing me into not taking 

the witness stan[d] on my behalf, and for not presenting evidence

for my defence [sic] that was known to him. Ineffective 

assistance of counsel for failing to request a jury instruction on 

self-defense. failure [sic] to object to the in-proper [sic] jury 

instructions. 

Id. at 53.

2

 On April 19, 2010, Hosby‟s court-appointed PCRA counsel filed a 

motion to withdraw. Doc. 12-5 at 71, 73. After reviewing PCRA counsel‟s 

motion to withdraw, the Dauphin County Court of Common Pleas dismissed 

Hosby‟s PCRA petition on December 7, 2011, and on December 14, 2012, the 

Superior Court of Pennsylvania affirmed. See Doc. 12-6 at 24-35. Hosby did not 

file a petition for allowance of appeal in the Supreme Court of Pennsylvania, and 

there is nothing in the record to reflect that Hosby sought further appellate review 

on his PCRA petition. 

On February 15, 2013, Hosby filed this 28 U.S.C. § 2254 petition for habeas 

corpus relief, arguing that his trial counsel was constitutionally ineffective for not 

objecting to a portion of the trial court‟s jury instruction on the element of intent 

for first-degree murder; an instruction, which Hosby contends, violated his right to 

due process, as provided by the Fourteenth Amendment, in that the instruction 

impermissibly relieved the Commonwealth of its burden of proof beyond a 

 

2

The last issue that Hosby presented for consideration in his PCRA petition, 

regarding trial counsel‟s failure to object to an improper jury instruction, related to 

the instruction on voluntary manslaughter, and it did not relate to the issue 

presented in this federal action. 

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reasonable doubt as to each and every element of the crime. See Doc. 1 at 5. More 

precisely, Hosby contends that the relevant portion of the jury instruction imposed 

an unlawful mandatory presumption on the jury.3 See id. 

After Hosby filed his habeas corpus petition, we conducted a preliminary 

review under Rule 4 of the Rules Governing Section 2254 Cases. Rather than 

recommending dismissal, we ordered Hosby to fill out an election form, pursuant 

to the Third Circuit‟s mandate in Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). 

Doc. 4. Hosby timely responded to our Order and elected to have the Court rule on 

his 28 U.S.C. § 2254 petition as filed. Doc. 6. Pursuant to our Order, the 

respondent then filed an answer to the petition, along with a memorandum of law 

and related exhibits. According to the respondent, Hosby‟s claim is procedurally 

defaulted and otherwise meritless. Doc. 12-2 at 3. On June 13, 2013, Hosby filed 

a reply to the respondent‟s petition. Doc. 12-13. Accordingly, Hosby‟s § 2254

habeas corpus petition is now ripe for review. 

 

3

To the extent Hosby is attempting to raise a standalone, substantive claim 

that his PCRA counsel was ineffective for not raising this issue in the PCRA 

petition, said claim should be outright denied. Despite recently adding wrinkles to 

the procedural default analysis in Martinez v. Ryan, infra, the Supreme Court has 

continued to maintain that petitioners have no constitutional right to effective 

assistance of counsel in post-conviction proceedings. See 132 S.Ct. 1309, 1315 

(2012) (declining to hold that there is a constitutional right to counsel in initialreview collateral proceedings). At the same time, to the extent that it is applicable, 

we will consider the claim in connection with Hosby‟s attempt to overcome the 

procedural default, which is to be discussed, infra. 

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II. Legal Standard.

The writ of habeas corpus stands as a safeguard against imprisonment of 

those held in violation of the law, and a habeas corpus petition filed pursuant to 28 

U.S.C. § 2254 is the proper mechanism for a State prisoner to challenge the “fact 

or duration” of his confinement on the ground that he or she is in custody, in 

violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 

2254(a); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Preiser v. Rodriguez, 411 

U.S. 475, 498–99 (1973); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); 

Johnson v. Rosemeyer, 117 F.3d 104, 114 (3d Cir. 1997). Thus, “it is not the 

province of a federal habeas court to reexamine [S]tate-court determinations on 

state-law questions.” McGuire, 502 U.S. at 67-68. 

Further, given the supreme nature of the Writ, federal courts reviewing 

habeas corpus petitions must be vigilant and independent, a commitment that 

normally entails substantial judicial resources. To accomplish this great task, 

“[f]ederal habeas courts reviewing the constitutionality of a state prisoner‟s 

conviction ... are guided by [certain] rules designed to ensure that [S]tate-court 

judgments are accorded the finality and respect necessary to preserve the integrity 

of legal proceedings within our system of federalism.” Martinez v. Ryan, 132 S.Ct. 

1309, 1316 (2012). 

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Among the rules guiding federal habeas courts relevant to this case, state 

prisoners must first exhaust available State court remedies before seeking relief.4

28 U.S.C. §§ 2254(b)-(c); see also Cone v. Bell, 556 U.S. 449 (2009); Rose v. 

Lundy, 455 U.S. 509, 515–20 (1982); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir.

1993); Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). This general 

rule promotes the interests of comity and finality by providing State courts with the 

opportunity to pass upon and correct alleged violations of its prisoners' federal 

rights. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 

U.S. 364, 365 (1995) (per curiam)); O'Sullivan v. Boerckel, 526 U.S. 838, 844 

(1999). The petitioner bears the burden of demonstrating that he or she has 

satisfied the exhaustion requirement. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 

2000).

In order for a claim to be considered exhausted, the claim must have been 

fairly presented to the State courts through “one complete round of the State's 

established appellate review process.” Nara v. Frank, 488 F.3d 187, 197 (3d Cir.

2007) (internal citations and quotation marks omitted). To be fairly presented, a 

 

4

Exceptions to the exhaustion requirement are made when: (1) the state 

corrective process is so deficient as to render any effort to obtain relief futile, 28 

U.S.C. § 2254(b); (2) acts of state officials have, in effect, made state remedies 

unavailable to the petitioner, Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir.

1987); or (3) “inordinate delay” in state proceedings has rendered state remedies 

ineffective. Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994); Schandelmeier v. 

Cunningham, 819 F.2d 52, 55 (3d Cir. 1986).

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petitioner need only “describe in the state proceedings both the operative facts and 

the federal legal theory on which his claim is based so that the State courts have a 

fair opportunity to apply controlling legal principles to the facts bearing upon his 

constitutional claim.” Alongsi v. Ricci, 367 F. App‟x 341, 345 (3d Cir. 2010)

(quoting Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (internal citations and 

quotation marks omitted)). 

Absent a demonstration of exhaustion, a federal court must dismiss without 

prejudice habeas petitions that contain any unexhausted claims. Slutzker v. 

Johnson, 393 F.3d 373, 379 (3d Cir. 2004). Simply stated, an unexhausted claim is 

one where the habeas petitioner has not “present[ed] the [S]tate courts with the 

claim he urges upon the federal courts.” Picard v. Connor, 404 U.S. 270, 276 

(1971).

Nevertheless, for claims that were not fairly presented to a State court, but 

for which “further [S]tate-court review is clearly foreclosed under state law, 

exhaustion is excused on the ground of futility.” Wenger v. Frank, 266 F.3d 218, 

223 (3d Cir. 2001). Although futile claims are deemed exhausted for federal 

habeas purposes, such claims are also procedurally defaulted, and federal courts 

are not permitted to evaluate the merits of procedurally defaulted claims unless the 

petitioner “establishes „cause and prejudice‟ or a „fundamental miscarriage of 

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justice‟ to excuse [the] default.” McCandless v. Vaughn, 172 F.3d 255, 260 (3d 

Cir. 1999); see also Coleman v. Thompson, 501 U.S. 722, 750–51 (1991). 

To demonstrate “cause” for a procedural default, the petitioner must show 

that “„some objective factor external to the defense ... impeded [his or her] ... 

efforts to comply with the ... [state] procedural rule.‟” Leyva v. Williams, 504 F.3d 

357, 366 (3d Cir. 2007) (quoting Slutzker, 393 F.3d at 381); Murray v. Carrier, 

477 U.S. 478, 488 (1986). By way of example, showing that a factual or legal 

basis for a claim was not reasonably available to counsel or showing interference 

by government officials sufficient to make compliance impracticable, would 

constitute acceptable “cause” for federal habeas review of the defaulted claim. 

Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (citing Murray, 477 U.S. at 

488). A claim of ineffective assistance of counsel has been deemed by the 

Supreme Court to fall within this standard. Id. The exhaustion doctrine generally 

requires, however, that an ineffective-assistance claim “be presented to the [S]tate 

courts as an independent claim before it may be used to establish cause for a 

procedural default.” Id. (citing Murray at 488-89). Regarding the prejudice 

requirement needed to overcome a procedural default, the habeas petitioner must 

prove “not merely that the errors at ... trial created a possibility of prejudice, but 

that they worked to his actual and substantial disadvantage, infecting his entire trial 

with error of constitutional dimensions.” Murray, 477 U.S. at 494. 

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As stated, a federal court may also excuse procedural default when its failure 

to review the claim will result in a fundamental miscarriage of justice. Edwards v. 

Carpenter, 529 U.S. 446, 451 (2000); Wenger, 266 F.3d at 224. The miscarriage 

of justice exception applies only in extraordinary cases where a “constitutional 

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

Murray, 477 U.S. at 496. “„[A]ctual innocence‟ means factual innocence, not mere 

legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).

More recently, the United States Supreme Court added a wrinkle to the 

procedural default analysis. In Martinez v. Ryan, state prisoners were expressly 

prohibited from raising ineffective-assistance-of-trial-counsel claims on direct 

appeal in the Arizona state courts, and the Supreme Court held “Where, under state 

law, claims of ineffective assistance of trial counsel must be raised in an initialreview collateral proceeding, a procedural default will not bar a federal habeas 

court from hearing a substantial claim of ineffective assistance at trial if, in the 

initial-review proceeding, there was no counsel or counsel in that proceeding was 

ineffective.” 132 S.Ct. at 1320. What the Supreme Court termed “initial-review 

collateral proceedings” are collateral proceedings that “provide the first occasion to 

raise a claim of ineffective assistance at trial.” Id. Thus, the Court created a 

narrow exception to the rule set forth in Coleman, 501 U.S. at 753–54, that an 

attorney's errors in a postconviction collateral proceeding do not constitute cause to 

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excuse a procedural default. Martinez, 132 S.Ct. at 1315. The Court declined to 

hold, however, that there is a constitutional right to counsel in initial-review 

collateral proceedings. Id. The Court further summarized two situations in which 

its holding is applicable: 

The first is where the [S]tate courts did not appoint counsel in the 

initial-review collateral proceeding for a claim of ineffective 

assistance at trial. The second is where appointed counsel in the 

initial-review collateral proceeding, where the claim should have 

been raised, was ineffective under the standards of Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984).

Id. at 1318. 

In 2013, the Supreme Court then decided Trevino v. Thaler. In Trevino, 

state prisoners in Texas were precluded, as a matter of course, from raising 

ineffective-assistance-of-trial counsel claims on direct appeal. In finding no 

significant differences between the Texas and Arizona systems, the Supreme Court 

extended the Martinez holding to states maintaining a procedural framework, 

where, by reason of design and operation, it is highly unlikely in a typical case that 

a defendant will have a meaningful opportunity to raise a claim of ineffective 

assistance of trial counsel on direct appeal. 133 S.Ct. 1911, 1921 (2013). 

While Pennsylvania requires, “as a general rule, [that] a petitioner should 

wait to raise claims of ineffective assistance of trial counsel until collateral 

review,” Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), the 

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Commonwealth recognizes two limited, narrow, and practically undeveloped

exceptions to the general rule that fall within the discretion of the trial judge. See

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). In light of the two exceptions,

it would appear that the Martinez holding would not be explicitly applicable to 

Pennsylvania petitioners, because there is, in effect, no express ban on the ability 

of a petitioner to raise an ineffective-assistance-of-trial-counsel claim on direct 

appeal. Trevino, however, appears to ensure that the Martinez holding is 

applicable to Pennsylvania petitioners, and it will be applied herein, where 

applicable.

Thus, in short, to overcome a procedural default pursuant to Martinez, a 

prisoner must show that he or she was not appointed counsel on initial-review 

collateral proceedings or that his or her appointed counsel was ineffective. In 

addition, the prisoner “must also demonstrate that the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one, which is to say that the 

prisoner must demonstrate that the claim has some merit.” Martinez, 132 S.Ct. 

1318; accord id. at 1319 (providing that an ineffective-assistance-of-trial-counsel 

claim is insubstantial when “it does not have any merit or [when] it is wholly 

without factual support....”). Moreover, the Court in Martinez noted that the 

substantiality requirement is akin to the certificate-of-appealability standard. Id. at

1318-20. Under that standard, a “petitioner must „sho[w] that reasonable jurists 

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could debate whether (or, for that matter, agree that) the petition should have been 

resolved in a different manner or that the issues presented were „adequate to 

deserve encouragement to proceed further.‟” Miller-El v. Cochrell, 537 U.S. 322, 

336 (2003). 

III. Discussion.

As mentioned, Hosby‟s sole ground is that his trial counsel was 

constitutionally ineffective for not objecting to a portion of the trial court‟s jury 

instruction on the element of intent for first-degree murder; an instruction which, 

Hosby contends, violated his right to due process, as provided by the Fourteenth 

Amendment, in that the instruction impermissibly relieved the Commonwealth of 

its burden of proof on the intent element. More precisely, Hosby contends that the 

relevant portion of the jury instruction created a mandatory presumption of intent. 

Doc. 1 at 5; Doc. 8 at 2. 

Prior to reaching this Court, however, Hosby never “fairly presented” this 

ground for relief to the Pennsylvania courts. Indeed, Hosby concedes as much in 

his memorandum of law, filed in support of his federal petition. See Doc. 8 at 4-5. 

Thus, Hosby has failed to exhaust the sole ground contained his federal habeas 

petition. 

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Moreover, it would be futile to require Hosby to exhaust this ground for 

relief since he is clearly foreclosed from doing so under the PCRA. See Lambert v. 

Blackwell, 387 F.3d 210, 229 (3d Cir. 2004) (explaining that “[t]he PCRA requires 

petitions to be filed „within one year of the date the judgment becomes final‟...”) 

(quoting 42 Pa. Cons. Stat. 9545(b)); see Commonwealth v. Ali, 86 A.3d 173, 177

(Pa. Feb. 18, 2014) (“A PCRA petition, including a second or subsequent petition, 

must be filed within one year of the date that judgment of sentence becomes 

final.”) (quoting 42 Pa. Con. Stat. Ann. § 9545(b)(1)).5 Accordingly, the 

exhaustion requirement should be excused for Hosby on the basis of futility. See

Wenger, 266 F.3d at 223 (3d Cir. 2001) (citation omitted) (explaining that under 

circumstances where the petitioner‟s claim has not been “fairly presented” to the 

State courts, “but further [S]tate-court review is clearly foreclosed under state law, 

[then] exhaustion is excused on the ground of futility”). Consequently, Hosby‟s 

ground is also procedurally defaulted. See Coleman, 501 U.S. at 732 (citation 

omitted) (“A habeas petitioner who has defaulted his federal claims in [S]tate court 

meets the technical requirements for exhaustion; there are no state 

remedies...„available‟ to him.”); Lines, 208 F.3d 166 (“A finding of futility merely

eliminates the procedural pretense of requiring a federal habeas petitioner to return 

to an unavailable state forum for nonexistent relief.”). Accordingly, unless Hosby 

 

5 Hosby also does not argue, and we do not find, that any statutory exceptions

set forth in § 9545(b)(1), for his failure to timely file a PCRA petition, apply here. 

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can establish cause and prejudice or a fundamental miscarriage of justice to excuse 

the procedural default, this Court is not permitted to evaluate the merits of Hosby‟s

sole ground for relief. See McCandless, 172 F.3d at 260; see Coleman, 501 U.S. at 

750.

In an attempt to overcome the procedural default, Hosby contends that his 

court-appointed PCRA counsel was ineffective for failing to raise the underlying 

ineffective-assistance-of-trial-counsel ground in his PCRA petition. Doc. 8 at 4-5; 

Doc. 13 at 2. Upon consideration, however, we find that Hosby fails to overcome 

the procedural default because the underlying ineffective-assistance-of trialcounsel claim is not “substantial,” as that term was defined by the Martinez Court; 

as such, we have not appointed him counsel nor held a hearing on the issue. 

For Hosby to ultimately prevail on an ineffective-assistance-of-trial-counsel 

claim, he would be required to establish (1) that trial counsel‟s performance 

deficiently “fell below an objective standard of reasonableness,” and (2) that this 

“deficient performance prejudiced [his (i.e., Hosby‟s)] defense.” Strickland v. 

Washington, 466 U.S. 668, 687-88 (1984). To satisfy the first prong, Hosby would 

need to show that “[trial] counsel made errors so serious that counsel was not 

functioning as the „counsel‟ guaranteed [to him (i.e., Hosby)] by the Sixth 

Amendment.” Id. at 687. In evaluating trial counsel‟s performance under this 

first prong, we would be required to be “highly deferential” to trial counsel‟s 

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approach and make “every effort...to eliminate the distorting effects of hindsight, 

to reconstruct the circumstances of [trial] counsel‟s challenged conduct, and to 

evaluate the conduct from counsel‟s perspective at the time.” Id. at 689. 

Regarding the second prong, Hosby would need to “show that there is a 

reasonable probability” that, but for [trial] counsel‟s unprofessional errors, the 

result of the proceeding would have been different.” Id. at 694. The Supreme 

Court has described a “reasonable probability” as one that is “sufficient to 

undermine confidence in the outcome” of the proceeding. Id. Moreover, and

relevant here, trial counsel cannot be constitutionally ineffective for failing to 

pursue meritless claims or objections. See Williams v. Beard, 637 F.3d 195, 225

n.23 (3d Cir. 2011); United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).

In finding that Hosby‟s underlying ineffective-assistance-of-trial-counsel 

claim is not substantial, we focus on Hosby‟s assault on the jury instruction.

Again, according to Hosby, trial counsel was ineffective for not raising an 

objection to a portion of the trial court‟s jury instruction, which Hosby believes 

relieved the Commonwealth, impermissibly, of its constitutional burden of proof 

on the element of intent for first-degree murder. More specifically, Hosby 

contends that said portion of the jury instruction created a mandatory presumption 

as to the element of intent and deprived him of Due Process guaranteed by the 

Fourteenth Amendment. 

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At the time of Hosby‟s trial, the Commonwealth was required to prove the 

following elements beyond a reasonable doubt to sustain a conviction for firstdegree murder: “(1) a person was unlawfully killed; (2) the person accused did the 

killing; and (3) the accused acted with specific intent to kill.” Commonwealth v. 

Solano, 906 A.2d 1180, 1184 (Pa. 2006) (citing Commonwealth v. Spotz, 759 A.2d 

1280, 1283 (2000)). Moreover, an intentional killing was defined as “one 

committed by means of poison, lying in wait, or by any other kind of willful, 

deliberate, and premeditated actions.” Id. (citing Commonwealth v. Taylor, 876 

A.2d 916, 922 (2005)). 

According to Hosby, the following portion of the trial court‟s jury 

instruction on first-degree murder impermissibly relieved the Commonwealth of its 

burden of proof on the intent element in that it created a mandatory presumption: 

I also want to point out to you that the Defendant here has been 

charged with the use of a firearm. It‟s been stipulated that the 

Defendant did not have a license to carry a firearm. And you 

may regard that as one item of circumstantial evidence, the fact 

that he had possession of a firearm. He doesn‟t dispute he had 

possession of the firearm.

You may, you may [sic] infer from that as one item, that could be 

one item of circumstantial evidence on whether the Defendant 

intended to commit the crime of homicide. All three of these 

offenses. What weight you attach to it, how convincing that is to 

you, you‟re not required to find that. You may use that, the fact 

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that he was unlicensed to carry that firearm. He had possession 

of the firearm. You may infer that, lead you to the conclusion that 

he intended to commit the crime of homicide, which incorporates 

all three of these charges. 

So, again, [sic] that evidence that he doesn‟t have a license 

simply alone isn‟t enough to prove. You look at all the facts and 

circumstances. And when I talk about all of these things, malice 

and specific intent, you don‟t focus simply on the deadly weapon 

on a vital part of the body. You look at all the evidence and 

testimony and all the length, the distance, the trajectory, the 

testimony, you look at all of that in determining whether there 

was specific intent and malice, malice just for the third degree. 

And, again, this fact that he was unlicensed and carrying a 

firearm, you may use that to infer he intended to commit the 

crime of homicide. 

Doc. 12-4 at 41-42;

6

see also Doc. 8 at 2-3 (pointing the Court to this portion of

the jury instruction on first-degree murder). 

The Due Process Clause of the Fourteenth Amendment provides, in part, that 

no State shall “deprive any person of life, liberty, or property, without due process 

of law....” U.S. CONST. amend. XIV, § 1. In the context of a criminal trial, it is 

well-established that the Due Process Clause “protects the accused against 

conviction except upon proof beyond a reasonable doubt of every fact necessary to 

constitute the crime with which he is charged.” Francis v. Franklin, 471 U.S. 307, 

 

6

See also, 18 Pa. C.S. § 6104 (“In the trial of a person for committing or 

attempting to commit a crime enumerated in Section 6105 (relating to persons not 

to possess, use, manufacture, control, sell or transfer firearms), the fact that that 

person was armed with a firearm, used or attempted to be used, and had no license 

to carry the same, shall be evidence of that person‟s intention to commit the 

offense.”).

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20

313 (1965) (quoting In re Winship, 397 U.S. 358, 364 (1970)). Consistent with 

this “bedrock, „axiomatic and elementary‟ [constitutional] principle,” id. (quoting 

In re Winship, 397 U.S. at 363), the States are prohibited “from using evidentiary 

presumptions in a jury charge that have the effect of relieving the State of its 

burden of persuasion beyond a reasonable doubt of every essential element of a

crime.” Id. at 313 (citing Sandstrom v. Montana, 442 U.S. 510, 520-524 (1979)). 

Therefore, as Hosby frames it, the question before this Court is whether the portion 

of the jury instruction, supra, had the effect of relieving the Commonwealth of its 

burden on the critical element of intent, by creating a mandatory presumption of 

intent. 

In resolving this question, we “must focus initially on the specific language 

challenged....” Id. at 315. Our inquiry does not end there, however, because jury 

instructions “„may not be judged in artificial isolation,‟ but must [also] be 

considered in the context of the instructions as a whole and the trial record.” 

McGuire, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 US. 141, 147 (1973)). In 

doing so, we are to consider “„whether there [was] a reasonable likelihood that the 

jury...applied the challenged instruction in a way‟ that violates [the Due Process 

Clause].” Id. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)); accord id.

at n.4 (disapproving of the prior standard-of-review language requiring courts to 

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21

consider how reasonable jurors “could” have or “would” have understood the 

charge as a whole).

Additionally, according to the Supreme Court, “[a] mandatory presumption 

instructs the jury that it must infer the presumed fact if the State proves certain 

predicate facts.” Franklin, 471 U.S. at 314. The Court has also explained that:

A mandatory presumption may be either conclusive or 

rebuttable. A conclusive presumption removes the presumed 

element from the case once the State has proved the predicate 

facts giving rise to the presumption. A rebuttable presumption 

does not remove the presumed element from the case but 

nevertheless requires the jury to find the presumed element 

unless the defendant persuades the jury that such a finding is 

unwarranted. 

Id. at 314 n.2 (citing Sandstrom, 442 U.S. at 517-18). As mentioned, “[m]andatory 

presumptions must be measured against the standards of Winship....” Id. at 314.

In evaluating the specific language challenged by Hosby, we note at the 

outset that the instructions are not cast in the language of a command, in 

comparison to the instruction at issue in Franklin, 471 U.S. 307.

7

Instead, the 

 

7 The petitioner in Franklin challenged the following two sentences in the trial 

court‟s jury instructions:

The acts of a person of sound mind and discretion are presumed

to be the product of the person‟s will, but the presumption may 

be rebutted. A person of sound mind and discretion is presumed

to intend the natural and probable consequences of his acts but 

the presumption may be rebutted.

Franklin, 471 U.S. at 315 (emphasis added). 

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22

challenged language at issue in this case simply provided the jurors with a choice 

to infer intent based upon the stipulated fact that Hosby possessed an unlicensed 

firearm. Moreover, contrary to the language that was challenged in Sandstrom, the 

challenged language here did not direct the jury to presume the intent element. See 

Sandstrom, 442 U.S. at 517 (“The law presumes that a person intends the ordinary 

consequences of his voluntary acts.”) (emphasis in original). Thus, in isolation, we 

find that the challenged language did not create a mandatory presumption. At most, 

the challenged language created a permissive inference, suggesting to the jury that 

it was possible to conclude that Hosby intended to kill the victim through the 

stipulated fact that Hosby was not licensed to carry a firearm and, in fact, 

possessed one when the victim was killed. See Franklin, 471 U.S. at 314 (defining 

“permissive inference” as a suggestion to the jury that a possible conclusion can be 

drawn if the State proved predicate facts, but does not require the jury to draw that 

conclusion). 

A permissive inference, only violates the Due Process Clause “if the 

suggested conclusion is not one that reason and common sense justify in light of 

the proven facts before the jury.” Id. at 314-15 (citing County Court of Ulster 

County v. Allen, 442 U.S. 140, 157-163). According to the Superior Court of 

Pennsylvania, which summarized the evidence adduced at trial, Hosby and his 

cousin, Tamara Hosby, arranged a fight between Hosby‟s cousin and Soraya 

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23

Layton; a fight arranged solely because Soraya had provided the Harrisburg Police 

Department with information relating to Tamara‟s brother. Doc. 12-5 at 3. 

Subsequently, Hosby and his cousin arrived at the location where the fight was to 

occur. Id. Following the fight, Hosby argued with Tara about who had won the 

fight, and Hosby ended up punching Tara in the face. Id. Hosby then proceeded to 

walk to his car, reach inside, pull out a gun, and place the gun in his rear pocket. 

Id. Rather than leaving when he was asked to do so, Hosby continued walking 

toward Tara‟s residence. Id. At one point, Hosby and Tara got into another 

physical altercation. See id. at 4. Afterwards, Hosby backed away from the 

confrontation, pulled out his gun, and shot Tara in the chest, killing her instantly. 

Id. Furthermore, as the trial court instructed the jury, Hosby stipulated that he did 

not have a license to carry a firearm, and it was undisputed that Hosby possessed a 

firearm when Tara was killed. Based upon these facts from trial, the permissive 

inference created by the challenged language did not violate due process for the 

jury could have rationally concluded that Hosby‟s unlawful possession of the 

firearm was, in this instance, partial evidence of his intent to commit first-degree 

murder. As the Supreme Court of Pennsylvania has also iterated: “Firearms 

certainly have lawful purposes, but they have unlawful ones as well, the most 

common of which involve inflicting injury upon others or threatening such injury 

to accomplish other criminal objectives. Licensure involves disclosure; while nonCase 4:13-cv-00407-MWB Document 18 Filed 02/27/15 Page 23 of 26
24

licensure suggests the stealth by which many criminal objectives are furthered and 

achieved.” Commonwealth v. Hall, 830 A.2d 537, 253-54 (Pa. 2003) (citation 

omitted). We do not disagree with this statement, and it lends further support to 

our finding that, in this case, the permissive inference created by the challenged 

language contained in the instructions was not unconstitutional because the called 

for inference was rational. See also, Hall, 830 A.2d at 245 (quoting language from 

Commonwealth v. Sattazahn, 413 A.2d 597, 606-07 n.6 (Pa. Super. Ct. 1993)).

The jury, of course, also had the benefit of hearing the entirety of the trial 

court‟s instructions, and there is nothing in the remainder of those instructions to 

suggest that there was a reasonable likelihood that the jury applied the challenged 

language in a way that violates the Due Process Clause. In fact, among other 

things, the trial court instructed the jury on the following: (1) the mandatory 

presumption of innocence; (2) the burden of proof remaining on the

Commonwealth; (3) the definition of reasonable doubt; (4) the difference between 

direct and circumstantial evidence; and (5) the elements of first-degree murder. 

See Doc. 12-4. As well, immediately preceding the challenged language, the trial 

court instructed the jury that the Commonwealth must establish the element of 

specific intent or else a “not guilty” verdict should be reached on first-degree 

murder. See id. at 37-39. Furthermore, in evaluating the evidence, the trial court 

instructed the jury that it was to examine Hosby‟s words, conduct, and the 

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25

surrounding circumstances. Id. at 39. Most damaging to Hosby‟s ground for relief 

is that the trial court also instructed the jury that they did not have to find an 

inference of intent based upon Hosby‟s possession of a firearm without a license, 

and that the evidence of his possession of a firearm without a license is not enough 

proof. Id. at 41, 42 (emphasis added).8

Accordingly, in short, both the isolated language and the jury instructions, as 

a whole, did not amount to a violation of the Due Process Clause. Therefore, any 

objection raised by Hosby‟s trial counsel would have been meritless. As a result, 

Hosby would not be able to succeed on the prejudice prong of the Strickland test, 

or, for that matter, the deficiency prong. Thus, Hosby cannot overcome the 

procedural default on the sole ground contained in his petition, because the ground 

is not a substantial one.9

 

8 Hosby‟s argument that the repetition of the isolated language amounted to a 

mandatory presumption is similarly without merit. At no point did the language 

used by the trial court change, and, viewed in isolation or as a whole, the language

amounted to nothing more than a permissive inference; an inference that was not in 

violation of due process. 

9

To the extent that our analysis reflects a ruling on the merits, rather than a 

proper disposition under the Martinez regime, we would stand on our findings and 

recommendations that Hosby‟s sole ground be denied. 

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IV. Recommendation.

For the foregoing reasons, WE RECOMMENDED that Hosby‟s habeas 

corpus petition (Doc. 1) be DENIED. The Parties are further placed on notice that 

pursuant to Local Rule 72.3:

Any party may object to a magistrate judge‟s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within 

fourteen (14) days after being served with a copy thereof. Such party 

shall file with the clerk of court, and serve on the magistrate judge and 

all parties, written objections which shall specifically identify the 

portions of the proposed findings, recommendations or report to 

which objection is made and the basis for such objections. The 

briefing requirements set forth in Local Rule 72.2 shall apply. A 

judge shall make a de novo determination of those portions of the 

report or specified proposed findings or recommendations to which 

objection is made and may accept, reject, or modify, in whole or in 

part, the findings or recommendations made by the magistrate judge. 

The judge, however, need conduct a new hearing only in his or her

discretion or where required by law, and may consider the record 

developed before the magistrate judge, making his or her own 

determination on the basis of that record. The judge may also receive 

further evidence, recall witnesses or recommit the matter to the 

magistrate judge with instructions. Failure to file timely objections to 

the foregoing Report and Recommendation may constitute a waiver of 

any appellate rights. 

Submitted this 27

th day of February 2015.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

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