1

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a United

States Magistrate Judge conduct proceedings in this case, including entry of a final judgment. (Document Nos. 8 &

17). Mary Friedline, Esq., who entered her appearance on behalf of the Warden and the Attorney General's Office,

notified the Court that the District Attorney of Erie County would submit the Answer on behalf of the Respondents. 

(Document No. 13). 

-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAMES CHRISTOPHER CHARLTON, )

Petitioner, ) Civil Action No. 07-200 Erie

)

v. ) Magistrate Judge Baxter

)

DAVID WAKEFIELD, et al., )

Respondents. )

OPINION AND ORDER1

I. Introduction

In January 2004, Petitioner James Christopher Charlton was tried in the Court of

Common Pleas of Erie County for the April 1991 murder of Rebecca Bain. It was the second

time the Commonwealth tried him for Bain's murder. His first trial ended in October 2003 in a

mistrial with a hung jury. On January 12, 2004, the jury empaneled for his second trial found

him guilty of first-degree murder. The trial court subsequently sentenced him to the mandatory

term of life in prison without parole. 

Pending before this Court is a Petition For a Writ of Habeas Corpus Pursuant to 28

U.S.C. § 2254 [Document No. 7], in which Petitioner raises the following three claims: (1) his

Fourth Amendment rights were violated because the police seized several items that were later

admitted at trial, including a pair of bloodstained jeans, pursuant to an illegal search; (2) his

constitutional right to an impartial jury was violated due to minorities being under-represented on

the jury array; and (3) his verdict was against the weight of the evidence.

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 1 of 18
 

2

Respondents have submitted most of the relevant transcripts and most of the original State Court Record ("SCR"). 

The SCR contains 89 documents and shall be cited to as "SCR No. __ ." A few state court records are not contained

in the indexed portion of the SCR. Those documents are appellate briefs and more recent filings made in the Court of

Common Pleas of Erie County and are located in the same hard-copy file that contains the indexed SCR and the

transcripts. 

 

3

Dr. Shakir was qualified as an expert witness and testified as to the cause of Bain's death. Dr. Shakir could not be

present at Petitioner's second trial due to a severe snowstorm. The parties stipulated that his testimony from the first

trial be read into the record at the second trial. (1/7/04 Trial Tr. at 27 (citing 10/1/03 Trial Tr. at 171-195)). The

trial transcript for October 1, 2003, is not contained among the records Respondents submitted to this Court. The

trial court set forth Dr. Shakir's testimony in an opinion (SCR No. 80) and this Court has relied upon that

summarization, which is uncontested.

-2-

II. Relevant Background

On April 14, 1991, Bain's dead body was discovered in her apartment. She way lying on

her back in a pool of blood. (1/6/04 Trial Tr. at 36). Dr. Adbuaas Shakir, the forensic 2

pathologist who performed the autopsy, testified at Petitioner's subsequent trial that Bain died of

asphyxiation due to compression of her neck. (10/1/03 Trial Tr. at 175). He explained that 3

"could mean strangulation, could mean any of [sic] any way in which there's a compression of the

neck which results in preventing her from breathing and preventing oxygen into the blood from

going to the brain." (Id. at 176). Dr. Shakir also found deep incised wounds of the vaginal area

and several "superficial incised wounds [were] seen radially oriented around the anus." (Id. at

182-83). He opined that these wounds were inflicted either after death or shortly before death

when Bain was in a state of shock, as determined from the lack of evidence of struggle. (Id. at

185, 191). There were also several other findings of trauma, including bruises on the neck, chest,

clavicle, and both thighs. (Id. at 183-84). 

It was estimated that Bain was killed on Saturday, April 13 or Sunday, April 14, 1991. 

The police interviewed several individuals that they believed had been at Bain's apartment on

those dates. Petitioner was among those interviewed and police suspected that he murdered Bain

during an attempted robbery. The Commonwealth initially was unable to gather sufficient

evidence to proceed to trial against him, however. It first charged him with Bain's murder in

September 1992, but withdrew the charge. It charged him again in 1993, only to withdraw the

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 2 of 18
 

4

In Batson, the Supreme Court, inter alia, reaffirmed the principle that "the defendant does have the right to be tried by

a jury whose members are selected pursuant to nondiscriminatory criteria. The Equal Protection Clause guarantees the

defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false

assumption that members of his race as a group are not qualified to serve as jurors." 476 U.S. at 84 (internal citations

and quotations omitted). 

-3-

charge for the second time. 

Approximately eleven years after Bain's murder, the results of new and more advanced

DNA testing on the bloodstained jeans linked Petitioner to the murder. Additionally, Amy

Pencille, who in 1993 had pleaded guilty to second-degree murder for her role in the killing of

Bain, gave investigators a statement implicating Petitioner. In June 2002, armed with the new

evidence to support its case, the Commonwealth filed a third criminal complaint charging

Petitioner with Bain's murder. The trial court appointed James Pitonyak, Esq., and Anthony

Logue, Esq., to represent him. The Commonwealth notified the defense that it would be seeking

the death penalty.

Petitioner filed an omnibus pretrial motion that included a motion to suppress several of

the items that the police had seized, including the bloodstained jeans, on the basis that the items

had been obtained pursuant to an illegal search. (SCR Nos. 10, 24-25). A suppression hearing

was held on February 4, 2003. (See Suppression Hr'g Tr.). On February 26, 2003, the trial court

issued an Order denying the motion to suppress. (SCR No. 26).

Prior to a pretrial conference on August 14, 2003, Petitioner's counsel filed a motion to

stay, for discovery regarding jury selection, and to dismiss the array of jurors (8/14/03 Pretrial

Conf. Tr. at 13-20). It was alleged that the jury selection system in Erie County systematically

under-represented and discriminated against minority citizens. Peter Freed, the deputy court

administrator, testified at the pretrial conference and explained how the jury source lists and

arrays are composed. (Id. at 16-18). At the end of the pretrial conference, the trial court denied

Petitioner's motion, holding "there is nothing that points to the process as being unfair. The

process is constitutional. It is fair.... We will look at the array when the array comes in, then we

will deal with any other issues, like Batson [v. Kentucky, 476 U.S. 79 (1986)] as they come 4

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 3 of 18
-4-

up[.]" (Id. at 21). It does not appear that defense counsel raised the issue again during the jury

selection process conducted on September 29 and 30, 2003. 

On October 6, 2003, the jury announced that it was deadlocked and a mistrial was

declared. Thereafter, the Commonwealth withdrew its intent to seek the death penalty. 

Petitioner's second trial commenced on January 5, 2004, with the selection of a new jury. 

Defense counsel did not raise a challenge to the jury array. 

At trial, the Commonwealth contended that one factor that proved Petitioner's guilt was

that Bain's blood was on his jeans. Through several witnesses and exhibits, it established that

during the investigation of Bain's homicide detectives from the Erie County Police Department

discovered several bags and boxes containing Petitioner's personal items. Among the items

seized were the jeans stained with blood that was later determined through DNA testing to be

Bain's blood. To prove that the bloodstained jeans belonged to Petitioner, the Commonwealth

called Wayne Harbison, who testified that he and Petitioner had made arrangements for

Petitioner to move into his apartment. (1/8/04 Trial Tr. at 132-34). Harbison stated that

Petitioner had moved "a few bags [and] a few boxes" into the apartment. Later, Harbison

decided that he did not want Petitioner to move in with him and so he asked him to move his

belongings out, which Petitioner failed to do. (Id. at 134). Subsequently, the police contacted

Harbison as part of the Bain murder investigation. In the course of Harbison's conversation with

the police, he reported that Petitioner's belongings were still in his apartment. On May 1, 1991,

at Harbison's request, the police accompanied Harbison to his apartment. At that point, the

police discovered the items left there by Petitioner, including the pair of bloodstained jeans. (Id.

at 136-37). 

To further establish that the jeans belonged to Petitioner, the Commonwealth introduced

photographs of Harbison's apartment, the actual items seized from the apartment, and testimony

from the police investigators indicating that there were several identifying items of Petitioner's

personal property found in the bags and boxes seized. (Id. at 27-28, 174-85). Detective James D.

Washburn stated that he tagged the items of Petitioner's personal property found in boxes seized

from the apartment and brought them back to the police station. He identified several items

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 4 of 18
 

5

Pencille pleaded guilty in 1993 to second-degree murder and criminal conspiracy for her role in the death of Bain. 

She was sentenced to life in prison without parole. For years, she did not provide the police with a statement

sufficient to proceed with charges against Petitioner. However, in 2002, Pencille told investigators that she was in the

apartment when Petitioner killed Bain. Her statement, along with the results of new DNA testing that had been

conducted on the bloodstained jeans, prompted the Commonwealth to pursue its case again Petitioner after so many

(continued...)

-5-

found in the bags and boxes seized, including: papers with Petitioner's name and different

addresses; an address book containing the business card of Detective Kuhn, who had given

Petitioner that card earlier in the course of the investigation; and two prescriptions from a Rite

Aid pharmacy both prescribed with Petitioner's name on the label. (Id. at 180-86). 

The Commonwealth then offered expert testimony and reports to establish that the blood

on Petitioner's jeans was Bain’s blood. Dr. Jason Kokoszka, a molecular geneticist with a Ph.D.

in genetics and molecular biology, was qualified as an expert witness for the Commonwealth. 

(Id. at 77-80). He testified that the jeans were stained with the blood from more than one person,

and explained that:

[S]ometimes when you have a mixture, you have one component of that

mixture which is present in much, much higher amounts than the other

components. And that was the situation here. When you have a

component present in higher amounts, your about to call that [sic] what is

called a "primary profile" or a "major contributor." We were able to do

that, and we identified a female profile as a major contributor. And that

profile happened to match the profile we obtained from M. Bain.

And we also detected what's called "secondary types" or "minor types"

present in much, much lower amounts. And [Petitioner] could not be

excluded as being a possible source of those minor types. 

 

(Id. at 88). Dr. Kokoszka further explained that to say someone "could not be excluded" was

different than finding that someone was a match, as it was much less of a statistical certainty. 

The DNA sample, from which Petitioner could not be excluded, would be present in about 1 in

every 300 unrelated African-Americans. (Id. at 90-94, 101). Finally, Dr. Kokoszka testified that

Harbison could be excluded as a whole from being a contributor to the DNA sample taken from

the bloodstained jeans. (Id. at 93-94).

In addition to the physical and scientific evidence linking Petitioner to Bain's murder, the

Commonwealth also offered the testimony of Amy Pencille. She testified that she and Petitioner 5

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 5 of 18
(...continued) 5

years. The defense vigorously attacked Pencille's credibility. The Commonwealth countered that she had matured and

changed after spending the last decade in prison and that, although she had lied in the past, her trial testimony was

credible. In his closing argument, the prosecutor reminded the jury that Pencille would spend the rest of her life in

prison and that the Commonwealth had made no deal with her in exchange for her testimony. (1/9/04 Trial Tr. at 63;

see also 1/7/04 Trial Tr. at 87). 

-6-

went to Bain's apartment to collect money from her. (1/7/04 Trial Tr. at 91). According to

Pencille, Bain voluntarily allowed them into her apartment. Then, Bain and Petitioner walked

into the bedroom. Pencille said that she remained in the living room for about twenty-five

minutes. When Petitioner came out of the bedroom, Pencille testified, he had blood on his pants. 

He then "grabbed [Pencille] by the hair and threw [her] in the bedroom" where Pencille saw

Bain's dead body. (Id. at 96). 

On January 12, 2004, the jury convicted Petitioner of first-degree murder. On February

17, 2004, the trial court sentenced him to life in prison without parole. Petitioner filed a posttrial motion in which he claimed, in relevant part, that the court had erred in denying the motion

to suppress and for not holding a full hearing on the motion he filed prior to his first trial

challenging the jury array. Petitioner also challenged both the weight and the sufficiency of the

evidence presented against him. (SCR No. 68). The trial court denied the post-trial motion. 

(SCR No. 69). Petitioner next filed his Statement Pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b). (SCR No. 78). On June 9, 2004, the trial court issued a twenty-three page

Rule 1925 Opinion. (SCR No. 80, Commonwealth v. Charlton, No. 1751 of 2002, slip op. (C.P.

Erie June 9, 2004) ("Rule 1925 Opinion")). 

Next, Petitioner's counsel was permitted to withdraw and Assistant Public Defender

Joseph Paul Burt, Esq., entered his appearance before the Superior Court of Pennsylvania. (SCR

No. 81). On or around September 9, 2004, Petitioner, through Burt, filed his Brief For

Appellant, No. 476 WDA 2004 (Pa. Super. Sept. 8, 2004). In that brief, Petitioner raised all of

the claims discussed above except for the claim that there was insufficient evidence to support

the verdict. (He limited his challenge to the jury's verdict by asserting only that it was against the

weight of the evidence). 

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 6 of 18
 

6

Rule 630 of the Pennsylvania Rules of Criminal Procedure provides, in relevant part:

(B) Challenge to the Array.

(1) Unless opportunity did not exist prior thereto, a challenge to the array shall be made

not later than 5 days before the first day of the week the case is listed for trial of criminal cases for

which the jurors have been summoned and not thereafter, and shall be in writing, specifying the

facts constituting the ground for the challenge.

(2) A challenge to the array may be made only on the ground that the jurors were not

selected, drawn, or summoned substantially in accordance with law.

-7-

On November 9, 2005, the Superior Court issued a Memorandum Opinion denying

Petitioner's direct appeal. (SCR No. 84, Commonwealth v. Charlton, No. 476 WDA 2004, slip

op. (Pa.Super. Nov. 9, 2005)). It denied the Fourth Amendment suppression claim and the

weight of the evidence claim on the merits. (Id. at 5-17). The Superior Court held that

Petitioner's claim challenging the racial composition of the jury array was waived because he did

not raise it prior to his second trial. (Id. at 17-19 (citing Pa.R.Crim.P. 630(B); Pa.R.A.P. 302(a) 6

("Issues not raised in the lower court are waived and cannot be raised for the first time on

appeal."); Commonwealth v. Dennis, 695 A.2d 409, 411 (Pa. 1997) (if appellate courts were to

consider issues not raised in the trial court, then the trial would be a mere dress rehearsal)). See

also 42 PA.CONS.STAT.ANN. § 4526(b)-(f). 

On June 14, 2006, the Supreme Court of Pennsylvania denied a petition for allowance of

appeal. (SCR No. 83). Next, on November 6, 2006, Charlton filed a pro se motion under

Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A.. § 9541, et seq. (SCR No.

85). In his PCRA motion, Petitioner once again challenged the denial of the suppression motion,

the sufficiency and/or the weight of the evidence, as well as the composition of the jury array. 

(Id.) 

The PCRA Court appointed William J. Hathaway, Esq., to represent Petitioner. On

December 6, 2006, Hathaway submitted a "no merit" letter and a request for leave to withdraw. 

(See attachment to SCR No. 88). On January 11, 2007, the PCRA Court issued a notice

informing Petitioner that it intended to grant Hathaway's request to withdraw and to deny his

PCRA motion, and that he had twenty days to file objections. (SCR No. 88). Petitioner did not

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 7 of 18
-8-

file objections. On February 6, 2007, the PCRA Court issued a nine-page Opinion and Order

denying PCRA relief and notifying Petitioner that he had thirty days to file an appeal. (SCR No.

89, Commonwealth v. Charlton, No. 1751 of 2002, slip op. (C.P. Erie, Feb. 6, 2007)). Petitioner

did not file an appeal to the Superior Court.

Next, Charlton filed in this Court his pro se petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254. In the meantime, he continued to seek relief before the Court of Common

Pleas. On November 5, 2008, he filed a second pro se PCRA motion in which he claimed that he 

was innocent and that Amy Pencille had admitted to a woman named Kate Slater that her trial

testimony was false. He acknowledged that he had been unable to locate Slater in order for her

to sign an affidavit to support his claim that Pencille had recanted her trial testimony. (Second

PCRA Motion at 3-5). 

On February 10, 2009, the PCRA Court issued an Opinion and Order dismissing the

second PCRA motion. (Commonwealth v. Charlton, No. 1751 of 2002, slip op. (C.P. Erie Feb.

10, 2009)). It held that the second PCRA motion was "patently untimely" under the applicable

statute of limitations, 42 Pa.C.S.A. § 9545(b), and therefore it did not have jurisdiction to rule on

the merits. (Id. at 2-4). The PCRA Court further held:

However, assuming arguendo the instant PCRA Petition is properly

before this Court, Defendant has failed to state any grounds for which

relief may be granted. In this instant PCRA Petition, Defendant's sole

contention is that his Co-Defendant, Amy Pencille, told Kate Slater while

confined at SCI Muncy that she did not meet Defendant until April 16,

1991, after the body of Defendant's victim was found. If Defendant's

contention is true, then Amy Pencille's testimony at Defendant's trial

would be false because Ms. Pencille testified she was with Defendant

when he killed the victim in the victim's apartment. See (N.T. 1/7/2004,

Jury Trial – day 2, pp. 92-98). However, Defendant has not stated how

this new information, if proved, would actually prove his innocence.

Additionally, Defendant admits in the instant PCRA that he has been

unable to locate Ms. Slater; and therefore, Defendant cannot prove his

contention even if this Court had a hearing on the merits of the instant

PCRA Petition. Moreover, at Defendant's trial, Ms. Pencille testified that

she previously told police she had not met Defendant until April 16,

1991, after the victim's body had been found. (N.T. 1/7/2004, Jury Trial–

day 2, pp. 98-101). At Defendant's trial, Ms. Pencille credibly stated that

she had previously lied about not meeting Defendant because he

threatened to kill her mother and her son. (N.T. 1/7/2004, Jury Trial –

day 2, pp. 97-101). Thus, Defendant's contention that Ms. Pencille did

not meet him until April 16, 1991 is not new at all, and was indeed raised

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 8 of 18
 

7

The Court takes judicial notice of this docket sheet. It is available to the public online at

<http://ujsportal.pacourts.us/DocketSheets/Appellate.aspx>.

-9-

at Defendant's trial. Moreover, the only person who could prove

Defendant's contention that Ms. Pencille did not meet Defendant until

April 16, 1991 is Ms. Pencille[ ] herself, who Defendant has not offered

to testify. Defendant admits he cannot locate his witness, Kate Slater;

and therefore, Defendant would have no evidence to present at a hearing.

(Id. at 4-5). 

Petitioner filed a pro se appeal to the Superior Court. On September 3, 2009, the

Superior Court issued a per curiam Order dismissing the appeal for failure to file a brief. (See

Appellate Docket Sheet for Commonwealth v. Charlton, No. 683 WDA 2009 (Pa. Super.)). 

7

III. Discussion

A. Fourth Amendment Claim

 Petitioner contends that his Fourth Amendment rights were violated because the police

seized the bloodstained jeans pursuant to an illegal search. This claim is not cognizable in

federal habeas. In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that a federal

court may not grant a state prisoner habeas corpus relief on a claim that evidence obtained in an

unconstitutional search or seizure was introduced at his trial if the State had already provided an

"opportunity for full and fair litigation" of the Fourth Amendment claim, explaining:

[T]he additional contribution, if any, of the consideration of

search-and-seizure claims of state prisoners on collateral review is small

in relation to the costs. To be sure, each case in which such claim is

considered may add marginally to an awareness of the values protected by

the Fourth Amendment. There is no reason to believe, however, that the

overall educative effect of the exclusionary rule would be appreciably

diminished if search-and-seizure claims could not be raised in federal

habeas corpus review of state convictions. Nor is there reason to assume

that any specific disincentive already created by the risk of exclusion of

evidence at trial or the reversal of convictions on direct review would be

enhanced if there were the further risk that a conviction obtained in state

court and affirmed on direct review might be overturned in collateral

proceedings often occurring years after the incarceration of the defendant. 

The view that the deterrence of Fourth Amendment violations would be

furthered rests on the dubious assumption that law enforcement

authorities would fear that federal habeas review might reveal flaws in a

search or seizure that went undetected at trial and on appeal. Even if one

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 9 of 18
-10-

rationally could assume that some additional incremental deterrent effect

would be presented in isolated cases, the resulting advance of the

legitimate goal of furthering Fourth Amendment rights would be

outweighed by the acknowledged costs to other values vital to a rational

system of criminal justice. 

In sum, we conclude that where the State has provided an opportunity for

full and fair litigation of a Fourth Amendment claim, a state prisoner may

not be granted federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was introduced at his

trial. In this context the contribution of the exclusionary rule, if any, to

the effectuation of the Fourth Amendment is minimal, and the substantial

societal costs of application of the rule persist with special force.

428 U.S. at 493-494 (footnotes and internal citations omitted). See also Deputy v. Taylor, 19

F.3d 1485, 1490 (3d Cir. 1994) (rejecting a Fourth Amendment claim because the petitioner had

had a full and fair opportunity to litigate it in the state court, and noting that under Stone, "[e]ven

otherwise potentially meritorious Fourth Amendment claims are barred on habeas when the

petitioner had a full and fair opportunity to litigate them."). It cannot be disputed that Petitioner

had a full and fair opportunity to litigate his Fourth Amendment claim in the state court. 

Therefore, this claim is denied.

B. Claim Challenging the Jury Array

In his next claim, Petitioner contends that his Sixth Amendment guarantee to an impartial

jury was violated because minorities were under-represented in the jury array. As set forth

above, Petitioner raised this same claim on direct appeal. The Superior Court held that, because

he failed to object to the jury array prior to the second trial as required by Pennsylvania Rule of

Criminal Procedure 630, the claim was waived pursuant to Pennsylvania Rule of Appellate

Procedure 302(a), which states that: "[i]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal." (SCR No. 84, Charlton, No. 476 WDA 2004, slip op. at

17-19). 

Because the Superior Court denied Petitioner relief on this claim based upon a state

procedural rule of waiver, it is barred from federal habeas review under the "procedural default"

doctrine. This doctrine is "grounded in concerns of comity and federalism[.]" Coleman v.

Thompson, 501 U.S. 722, 729-30 (1991). It prohibits federal habeas courts from reviewing a

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 10 of 18
-11-

state court decision involving a federal question if the state court decision is based on a rule of

state law that is "independent" of the federal question and "adequate" to support the judgment. 

See, e.g., Gray v. Netherland, 518 U.S. 152, 162 (1996); Coleman, 501 U.S. at 732. 

A state rule of procedure is "independent" if it does not depend for its resolution on

answering any federal constitutional question. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 75

(1985). Here, the Superior Court's decision was based on the application of a state procedural

rule and thus was "independent" of federal law. A state rule is "adequate" if the state appellate

court reviewing the petitioner's claim refused to review it on the merits because the petitioner

failed to comply with the rule and the state court's refusal was consistent with other decisions. 

Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007); Beard v. Kindler, — U.S. —, 130 S.Ct. 612

(2009) (discretionary state rules can be "adequate"); see also Ford v. Georgia, 498 U.S. 411, 423-

24 (1991) (a state procedural rule is "adequate" if it is "firmly established and regularly followed"

at the time that the alleged procedural default occurred). The Superior Court's application of

Appellate Rule 302(a) was "adequate," since that rule clearly states that issues not raised in the

lower court are waived, and since at the time of Petitioner's waiver, Pennsylvania appellate courts

regularly held that claims were waived when a defendant failed to raised them before the trial

court at the required time (which was, in this case, no later than five days before the first day of

the week his second trial was listed for trial, Pa.R.Crim.P. 630(B)). See 20 G. Ronald Darlington

et al., Pennsylvania Appellate Practice § 302:1 (2008-09 ed.) (collecting cases and explaining

that Pennsylvania courts have applied Appellate Rule 302(a) "consistently" and that "[a]lthough

exceptions to the general rule have been permitted, they occur primarily where either important

issues of public policy are concerned or where counsel had no opportunity to raise an issue

below."). Cf. Clausell v. Sherrer, — F.3d — , 2010 WL 395902 *3 (3d Cir. Feb. 5, 2010)

(rejecting a habeas petitioner's substantive Batson claim because he failed to raise an objection at

trial to the prosecutor's use of peremptory challenges and therefore he forfeited his right to raise a

Batson claim on direct appeal or on collateral review). 

A petitioner whose constitutional claim has not been addressed on the merits in state

court due to the failure to comply with a state procedural rule can overcome the default, thereby

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 11 of 18
 

8

A federal court may also reach the merits of a procedurally defaulted claim if the petitioner establishes a "fundamental

miscarriage of justice" will occur if the default is not excused. The "fundamental miscarriage of justice" exception

applies only in the "extraordinary" case in which the petitioner has presented new evidence of "actual innocence" that

is "so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the

trial was free of nonharmless constitutional error[.]" Schlup v. Delo, 513 U.S. 298, 316, 324 (1995); see also House v.

Bell, 547 U.S. 518 (2006); Goldblum v. Klem, 510 F.3d 204, 225 (3d Cir. 2007); Albrecht v. Horn, 485 F.3d 103,

121-27 (3d Cir. 2007); Hubbard v. Pinchak, 378 F.3d 333, 339-41 (3d Cir. 2004). This is not one of those

extraordinary and rare cases in which the fundamental miscarriage of justice exception is implicated. 

-12-

allowing federal court review, if he can demonstrate "cause" for the default, i.e., that some

objective factor "external to the defense" impeded efforts to comply with the state's procedural

rule, and actual prejudice. Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 8

488, 494 (1986). In this case, Petitioner argues that his trial counsels' failure to challenge the

composition of the jury array prior to the second trial amounts to sufficient "cause" to overcome

his default. This argument fails for two separate reasons. First, an attorney's decision not to raise

a claim is not the type of conduct that satisfies the "cause" requirement. As the Third Circuit

Court has stated:

Examples of "cause" that are "external to the defense" include

interference by the state with the conduct of a defense or the previous

unavailability of the factual or legal basis of a claim. Generally, "cause"

cannot be based on the mere inadvertence of the petitioner or petitioner's

counsel to take an appeal. "[T]he mere fact that counsel failed to

recognize the factual or legal basis for a claim, or failed to raise the

claim despite recognizing it, does not constitute cause for procedural

default." [Murray v. Carrier, 477 U.S. at 486]. Indeed, in Coleman v.

Thompson, 501 U.S. 722 [ ] (1991), the Court addressed . . . the effect of

a litigant's inadvertent failure to take a timely appeal in a state collateral

proceeding. The Court, applying Murray v. Carrier, concluded that an

"ignorant or inadvertent procedural default" does not satisfy the cause

element of cause and prejudice. Coleman, 501 U.S. at 752[.]

Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002) (emphasis added). 

Second, while the Supreme Court has recognized that attorney error that constitutes

ineffective assistance of counsel within the meaning of Strickland v. Washington, 466 U.S. 668

(1984) can constitute "cause" for relief from a procedural default, Coleman, 501 U.S. at 753-54,

in the instant case Petitioner may not rely on his trial counsels' alleged ineffective assistance to

avoid his default. Concerned with comity and the prospect of placing federal courts in the

anomalous position of adjudicating unexhausted state claims, the Supreme Court requires that "a

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 12 of 18
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claim of ineffective assistance of counsel [must] be presented to the state courts as an

independent claim before it may be used to establish procedural default." Murray, 477 U.S. at

488-89. This Petitioner failed to do, as he has never exhausted properly a claim that his trial

attorneys were ineffective for failing to challenge the jury array prior to the second trial. 

Thus, based upon all of the foregoing, Petitioner's claim challenging the composition of

the jury array is procedurally defaulted. 

C. Weight Of the Evidence

In his final claim, Petitioner contends that the jury's verdict was against the weight of the

evidence. It is not cognizable in federal habeas because it raises solely an issue of state law. 

Tibbs v. Florida, 457 U.S. 31, 37-45 (1982) (weight of evidence claims raise questions of

credibility; it is different from a claim that the evidence was insufficient to support the

conviction); see also Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas

court has no power to grant habeas corpus relief because it finds that the state conviction is

against the 'weight' of the evidence[.]"). In conducting habeas review for a state prisoner such as

Petitioner, this Court is limited to deciding whether his state conviction violated the Constitution

of the United States, 28 U.S.C. § 2254(a), and may not rule on issues of purely state-law error. 

See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal courts may not "reexamine state

court determination on state-law questions").

It may be that Petitioner is seeking to raise the claim that there was insufficient evidence

to support the jury's verdict. Unlike a challenge to the weight of the evidence, a challenge to the

sufficiency of the evidence does express a federal constitutional claim. See Robertson v. Klem,

580 F.3d 159, 165 (3d Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 321 (1979) ("it is

clear that a state prisoner who alleges that the evidence in support of his state conviction cannot

be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a

reasonable doubt has stated a federal constitutional claim" and that "it follows that such a claim

is cognizable in a federal habeas corpus proceeding."); and citing Fiore v. White, 531 U.S. 225,

228-29 (2001) (per curiam) ("We have held that the Due Process Clause of the Fourteenth

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 13 of 18
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Amendment forbids a State to convict a person of a crime without proving the elements of that

crime beyond a reasonable doubt.")). 

If, in fact, Petitioner is raising a claim challenging the sufficiency of the evidence, that

claim is denied as procedurally defaulted because he failed to exhaust it properly in the state

court. In order to exhaust a claim properly, a petitioner must "fairly present" it to each level of

the state courts. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citing 28 U.S.C. § 2254(b);

O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir.

1996), abrogated on other grounds by Beard v. Kindler, — U.S. — ,130 S.Ct. 612 (2009)). For

state prisoners convicted in the Commonwealth of Pennsylvania, this requirement typically

means that a petitioner in a non-capital case must present every claim raised in his federal

petition to both the Common Pleas Court and the Superior Court either on direct appeal or during

PCRA proceedings. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). The failure

to fully exhaust federal claims in state court bars the consideration of those claims in federal

court by means of habeas corpus because they have been procedurally defaulted. Cristin, 281

F.3d at 410 (citing Coleman, 501 U.S. at 731; Wainwright v. Sykes, 433 U.S. 72, 90 (1977)); see

also Whitney v. Horn, 280 F.3d 240, 251-52 (3d Cir. 2002) (the procedural default doctrine

applies to bar federal habeas relief when a state court has declined or would decline to address a

petitioner's federal constitutional claims because he failed to meet a state procedural

requirement); Lines, 208 F.3d at 160-65.

As set forth above, Petitioner raised a sufficiency of the evidence claim in his post-trial

motion and in his Rule 1925(b) Statement, but he failed to "fairly present" the claim in the brief

he filed with the Superior Court, see Brief For Appellant, No. 476 WDA 2004 (Pa. Super. Sept.

8, 2004), as required by Rules 2111 and 2116 of the Pennsylvania Rules of Appellate Procedure. 

As a result, the Superior Court did not address it. Because Petitioner did not exhaust properly the

insufficiency of the evidence claim before the state courts, it is procedurally defaulted and this

Court may not review it on the merits. 

However, even if the claim were not procedurally defaulted, this Court would still deny it. 

The trial court adjudicated it on the merits in the Rule 1925(b) Opinion. Accordingly, that

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adjudication is entitled to deference under the standard of review set forth at 28 U.S.C. §

2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 

AEDPA "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). It provides, in relevant part:

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; 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(d)(1). See also Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Lambert,

387 F.3d at 234. 

The "clearly established Federal law" in which to analyze the sufficiency of the evidence

claim is set forth in Jackson v. Virginia, 443 U.S. 307 (1979). In a habeas corpus proceeding,

where the sufficiency of the evidence is in contention:

[T]he critical inquiry on review of the sufficiency of the evidence to

support a criminal conviction .... does not require a court to ask itself

whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt... Instead, the relevant question 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. Byrd, 105 F.3d 145, 147 (3d Cir. 1997) (quoting Jackson v. Virginia, 443 U.S. at 318-

19) (internal citations and quotes omitted). See also Robertson, 580 F.3d at 165; Orban v.

Vaughn, 123 F.3d 727, 731-33 (3d Cir. 1997).

In adjudicating this claim, the trial court applied the Pennsylvania equivalent of the

Jackson v. Virginia standard. (SCR No. 80, Rule 1925(b) Opinion at 5-6 (citing Commonwealth

v. Tau Kappa Epsilon, 609 A.2d 791, 793 (Pa. 1992); Commonwealth v. Jackson, 485 A.2d 1102

(Pa. 1984)). See also Evans v. Court of Common Pleas, Delaware County, 959 F.2d 1227, 1233

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(3d Cir. 1992) (the test for insufficiency of the evidence is the same under both Pennsylvania and

federal law). It set forth an extensive review of the evidence offered at trial to explain why a

rational finder of fact could have found beyond a reasonable doubt each of the elements of firstdegree murder. (Id. at 6-16). The trial court explained that a rational finder of fact could have

found the first and second elements (the specific intent to kill and that Bain was unlawfully

killed) from the extensive evidence establishing the gruesome and violent nature of Bain's death. 

It then explained that a rational trier of fact could have found beyond a reasonable doubt the third

element, that Petitioner did the killing, through the DNA evidence and Pencille's testimony. (Id.) 

The trial court's adjudication withstands AEDPA's standards of review, and it cannot be

concluded that the Commonwealth did not submit sufficient evidence to support its verdict under

the standards presented by Jackson v. Virginia. 

 D. Certificate of Appealability

28 U.S.C. § 2253 governs the issuance of a certificate of appealability for appellate

review of a district court's disposition of a habeas petition. It provides that "[a] certificate of

appealability may issue ... only if the applicant has made a substantial showing of the denial of a

constitutional right." Where the federal district court has rejected a constitutional claim on its

merits, "the petitioner must demonstrate that reasonable jurists would find the district court's

assessment of the constitutional claims debatable or wrong[.]" Szuchon v. Lehman, 273 F.3d

299, 312 (3d Cir. 2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Applying this

standard here, jurists of reason would not find it debatable whether the claim raised in the 

Petition For a Writ Of Habeas Corpus are without merit. Accordingly, a certificate of

appealability should be denied.

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IV. CONCLUSION

For the foregoing reasons, the Petition For a Writ Of Habeas Corpus is denied and a

certificate of appealability is denied. An appropriate Order follows.

 

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Dated: February 25, 2010

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 17 of 18
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAMES CHRISTOPHER CHARLTON, )

Petitioner, ) Civil Action No. 07-200 Erie

)

v. ) Magistrate Judge Baxter

)

DAVID WAKEFIELD, et al., )

Respondents. )

ORDER 

AND NOW, this 25day of February, 2010;

IT IS HEREBY ORDERED that the Petition For a Writ Of Habeas Corpus Pursuant To

28 U.S.C. § 2254 [Document No. 7] is denied and a certificate of appealability is denied. The

Clerk of Courts is directed to close this case.

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Case 1:07-cv-00200-SPB Document 21 Filed 03/01/10 Page 18 of 18