1

Respondents have submitted the original state court record ("SCR"). It is indexed and consists of 47 documents. It

shall be cited to as "SCR No. __ ."

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK J. POLLARD, )

Petitioner, ) Civil Action No. 07-259 Erie

)

v. )

) District Judge Sean J. McLaughlin

MARK KRYSEVIG, et al., ) Magistrate Judge Susan Paradise Baxter

Respondents. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus [Document

No. 1] be denied and that a certificate of appealability be denied.

II. REPORT

A. Relevant Background1

In or around October 2001, Petitioner Mark J. Pollard was charged with several crimes

relating to the robbery that occurred at a home located at 108 Sobieski Street in Erie,

Pennsylvania. Petitioner was tried before a jury on July 10-11, 2002. Bruce G. Sandmeyer, Esq.,

was his attorney. 

The Superior Court of Pennsylvania summarized the evidence submitted against him at

trial as follows:

At approximately 4:30 p.m. on September 21, 2001, Mark Lupo was walking around

his neighborhood ... and proceeded north on Sobieski Street, Erie, where he lives.

Mr. Lupo heard glass break and then saw four men run from the porch of his house

[at] 108 Sobieski Street. Those men included [Petitioner], whom Mr. Lupo had

known for ten years, two unidentified African-American males, and Matthew Fox,

who was Mr. Lupo's friend. Mr. Fox was being chased by the two unidentified males

and was running behind [Petitioner]. [Petitioner] then turned ... and disappeared

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 1 of 12
2

[from view]. Mr. Lupo was positive in his identification of [Petitioner] as one of the

men who [had run] from the porch..., stating that approximately five minutes before

the incident he saw [Petitioner] driving down Second Street with the two unidentified

men in his car.

Gary Lindsey also lived at 108 Sobieski Street on September 21, 2001.

According to Mr. Lindsey's testimony at [Petitioner's] jury trial, at approximately

4:00 p.m., [Petitioner] arrived at Mr. Lindsey's residence with two unidentified males

and asked for Mark Rumbaugh, a friend and frequent visitor of Mr. Lindsey.

Mr. Lindsey told [Petitioner] that Mr. Rumbaugh was not there, and [Petitioner]

called him a "liar." N.T. Jury Trial-Day 1, 7/10/02, at 38. By that point, Mr. Fox,

who had been in another room in the house, came to the door and repeated that

Mr. Rumbaugh was not present. [Petitioner] stated to his companion, "Show them

what we have, show them what we got." Id. at 46. At that point, one of the two men

with [Petitioner] lifted up his shirt and displayed a gun contained in his waistband.

Fearful, Mr. Lindsey turned away as the man started to reach for the gun. As he was

turning away, he saw "out of the corner of [his] eye" [Petitioner] take a chain from

Mr. Fox's neck. Id. at 40. Mr. Lindsey turned back and saw Mr. Fox start to run.

Mr. Lindsey went outside to follow Mr. Fox, who was being chased by [Petitioner's]

two cohorts. Mr. Lindsey then observed the man who [had] displayed the gun hit

Mr. Fox on the back of the head with it.

Mr. Fox testified that he also lived at 108 Sobieski Street and had known

[Petitioner] for approximately two weeks prior to the incident. Between 4:00 p.m.

and 4:30 p.m. on September 21, 2001, Mr. Fox was working on a computer when he

heard a knock on his door. Mr. Lindsey opened the door and started to speak with

someone. Mr. Fox went to the door to investigate and saw [Petitioner] with two men

whom he did not know talking to Mr. Lindsey. Mr. Fox decided to open the door

fully, and [Petitioner] asked for Mr. Rumbaugh. When Mr. Fox told him that

Mr. Rumbaugh was not at home, [Petitioner] said, "[D]on't lie to me, why you lying

to me." Id. at 53. Mr. Fox retorted that he was not lying and insisted that

Mr. Rumbaugh was at work. Then, [Petitioner] "turned to his friend and said, 'Show

him what we have.[']" Id. at 54. In response, one of the men pulled a gun from his

pants and "waved it." Id. [Petitioner] suddenly grabbed a $1,000 gold chain that

Mr. Fox was wearing, tearing it from his neck. Since the man "was still standing

there with the gun," Mr. Fox was stunned. Id. at 56. He decided to chase [Petitioner]

who already had started down the steps. Mr. Fox proceeded in between [Petitioner's]

cohorts and started to run after [Petitioner]. The two unidentified males followed

behind Mr. Fox, who became aware that he was being chased and was "struck on the

side of the head with the gun" as he turned around to look. Id. at 56.

(SCR No. 33, Commonwealth v. Pollard, No. 1851 WDA 2003, slip op. at 1-3 (Pa. Super. July

27, 2004) ("Pollard 1")). Based on this evidence, the jury found Petitioner guilty of one count

each of robbery, conspiracy to commit robbery, and receiving stolen property, and two counts of

terroristic threats. 

The trial court sentenced Petitioner on August 28, 2002. It imposed the following

consecutive terms of imprisonment: Count 1 (Conspiracy) – three to six years; and, Count 2

(Robbery) – five to ten years. Thus, the total aggregate prison sentence was eight to sixteen

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 2 of 12
3

years' incarceration (to be followed by ten years' probation for Counts 4 and 5 (Terroristic

Threats)). (See Sentencing Hr'g Tr. at 14-15). All of the sentences imposed were well within the

statutory maximums. At Count 2 (Robbery), the court applied the sentencing enhancement

codified at 42 PA.CONS.STAT. § 9712, which imposes a minimum period of incarceration of five

years on a defendant who visibly possesses a firearm during the commission of a crime of

violence. Section 9712 was applied even though Petitioner had not possessed a firearm because

at the time of his sentencing the controlling authority issued by the Superior Court of

Pennsylvania was clear that "an unarmed accomplice to a crime mandating imposition of a

sentence under § 9712 ... shall be sentenced in accordance thereof if it is shown by the proof that

the unarmed accomplice had knowledge that the firearm was visibly possessed by his co-felon in

the commission of the crime." Commonwealth v. Matos, 555 A.2d 901, 902-03 (Pa. Super.

1989). Accord Commonwealth v. Walker, 562 A.2d 373 (Pa. Super. 1989); Commonwealth v.

Williams, 509 A.2d 1292 (Pa. Super. 1986); Commonwealth v. Grimmitt, 512 A.2d 43 (Pa.

Super. 1986). 

William J. Hathaway represented Petitioner in his direct appeal. Petitioner, through

Hathaway, raised the following relevant claim to the Superior Court:

The lower court erred in applying the deadly weapon enhancement for purposes of

the mandatory minimum sentence in that there was an insufficient predicate for

the application by the court. The appellant constituted an unarmed accomplice

and there was lacking any credible proof that the appellant had actual or

constructive knowledge of his co-defendant's possession of a firearm. The

appellant did not have a firearm on his person or within his immediate physical

control during the course of the criminal episode.

Brief For Appellant, Commonwealth v. Pollard, No. 1851 WDA 2003, 2003 WL 23648205 (Pa.

Super. Feb. 3, 2004). 

On July 27, 2004, the Superior Court issued a Memorandum affirming the judgment of

sentence. It held:

In the present case, the evidence at trial established that [Petitioner] knew

that one of his unidentified companions was in possession of a firearm. First,

[Petitioner] urged that companion to display the weapon. Second, the man was

waving it around just before [Petitioner] took Mr. Fox's necklace. The record

therefore supports the sentencing court's application of 42 Pa.C.S. § 9712(a) under

the cited case law. 

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 3 of 12
 

2

A little more than two years later, and well after Petitioner's judgment of sentence became final, the Pennsylvania

Supreme Court issued Commonwealth v. Dickson, 918 A.2d 95 (Pa. Mar. 9, 2007). In Dickson, the Pennsylvania

Supreme Court overruled the cases that the Superior Court had relied upon in denying Petitioner's direct appeal

challenge to the application of § 9712 at his sentencing. The Pennsylvania Supreme Court held that the language of

§ 9712 was unambiguous and that "unarmed co-conspirators do not fall within" that statute's ambit. Dickson, 918

A.2d at 387. As of this date, neither the Pennsylvania Supreme Court nor the Superior Court has held that Dickson

applies retroactively to cases that were final before its issuance. 

4

(SCR No. 33, Pollard 1, No. 1851 WDA 2003, slip op. at 7-8). 

On January 10, 2005, the Pennsylvania Supreme Court denied Petitioner's request for

allocatur. (SCR No. 32). His judgment of sentence became final 90 days later – on or around 2

April 11, 2005 – the last date upon which he could have filed a timely petition for certiorari with

the United States Supreme Court. 

On October 19, 2005, Petitioner filed a pro se motion under Pennsylvania's Post

Conviction Relief Act ("PCRA"), 42 PA.CONS.STAT. § 9541 et seq., in which he raised the

following relevant claims, which are the same claims that he raises in the instant federal habeas

petition:

Claim 1 Appellate counsel on his direct appeal (Hathaway) was ineffective

in failing to argue that the sentencing court violated his due

process rights by imposing a mandatory minimum sentence under

42 PA.CONS.STAT. § 9712 based on a finding by a mere

preponderance of the evidence that he had knowledge of his coconspirator's possession of a firearm during the commission of the

offense.

Claim 2 Trial counsel (Sandmeyer) was ineffective for failing to object to

inadmissible hearsay statements by prosecution witness Matthew

Fox during trial, and for failing to request a curative instruction;

Claim 3 Trial counsel (Sandmeyer) was ineffective in failing to object,

request an immediate curative instruction, and have stricken from

the record certain statements made by the prosecutor in her closing

argument concerning Petitioner's failure to testify in his defense.

(SCR Nos. 34-35). 

The PCRA Court appointed Vincent Nudi, Esq., to represent Petitioner and he

subsequently filed a "no merit" letter and a request to withdraw. On March 21, 2006, the PCRA

Court issued a notice of intent to dismiss the petition without a hearing and an attached opinion

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 4 of 12
 

3

Respondents inexplicably have failed to address the allegations that Petitioner makes in Claim 2 and Claim 3. The

bulk of their Response contains rote language regarding matters such as statute of limitations, exhaustion, and

procedural default – which they acknowledge are not at issue in this proceeding. In the future, greater care must be

given to answering the actual claims and issues presented by the habeas petition.

5

setting forth the court's reasoning. (SCR No. 40). Petitioner filed a pro se response. (SCR No.

41). Thereafter, the PCRA Court issued an order dismissing the petition. (SCR No. 42). 

On June 12, 2007, the Superior Court issued a Memorandum affirming the denial of

PCRA relief. (SCR No. 47, Commonwealth v. Pollard, No. 862 WDA 2006, slip op. (Pa. Super.

June 12, 2007) ("Pollard 2")). It denied each of Petitioner's aforementioned claims on the merits

for reasons that will be discussed in more detail below.

Next, Petitioner filed with this Court a pro se Petition For Writ Of Habeas Corpus

pursuant to 28 U.S.C. § 2254, in which he raises the same three claims that he raised in his

PCRA proceeding. [See Petition, Document No. 1, and Brief In Support, Document No. 4]. 

Respondents have filed their Answer [Document No. 9] and all relevant state court records. 3

B. Discussion

Standard Of Review

Because the Superior Court rejected Petitioner's claims on the merits, this Court's review

of those claims is circumscribed by the standard enacted by the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA"), which is codified at 28 U.S.C. § 2254(d). 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[.]

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 5 of 12
 

4

Petitioner admits that AEDPA's standard of review applies and he candidly acknowledges that this standard adds

another hurdle in addition to the already heavy burden he faces under Strickland. See also Knowles v. Mirzayance, —

U.S. — ,129 S.Ct. 1411, 1420 (2009) (noting "the doubly deferential judicial review that applies to a Strickland claim

evaluated under the § 2254(d)(1) standard."). 

6

28 U.S.C. § 2254(d)(1). See also Williams v. Taylor, 529 U.S. 362, 405-06 (2000); Lambert v.

Blackwell, 387 F.3d 210, 234 (3d Cir. 2004); Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004);

Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000). 

The "clearly established Federal law," 28 U.S.C. § 2254(d)(1), in which to analyze

Petitioner's claims of ineffective assistance of appellate and trial counsel is set forth in Strickland

v. Washington, 466 U.S. 668 (1984). Under Strickland, Petitioner must show that counsels' 4

"representation fell below an objective standard of reasonableness." 466 U.S. at 688; see also

Williams, 529 U.S. at 390-91. "A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 

Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). 

"However, [b]ecause of the difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel's conduct falls within the wide range of professional assistance;

that is, the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy." Id. (quoting Strickland, 466 U.S. at

689). "[I]t is only the rare claim of ineffective assistance of counsel that should succeed under

the properly deferential standard to be applied in scrutinizing counsel's performance." United

States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997). 

Petitioner also must show under Strickland that he was prejudiced by his counsels'

alleged deficient performance. This requires Petitioner to "show that 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.

The Superior Court applied the correct legal standard to Petitioner's ineffective assistance

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 6 of 12
7

of counsel claims. (SCR No. 47, Pollard 2, No. 862 WDA 2006, slip op. at 5-6; see also

Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999) (the legal standard for evaluating

ineffective assistance claims in a PCRA proceeding is the same as the federal Strickland

standard)). Therefore, the Superior Court's adjudication of Petitioner's claims was not "contrary

to" Strickland. Werts, 228 F.3d at 202-04 ("[A] state court decision that applied the

Pennsylvania [ineffective assistance of counsel] test did not apply a rule of law that contradicted

Strickland and thus was not 'contrary to' established Supreme Court precedent."). 

The only remaining question for this Court is whether the Superior Court's adjudication

of any of Petitioner's claims was an "unreasonable application" of Strickland. To prevail under

this standard of review, Petitioner must demonstrate that the Superior Court's adjudication

"cannot reasonably be justified under existing Supreme Court precedent." Hackett, 381 F.3d at

287; Knowles, 129 S.Ct. at 1420 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The

question under AEDPA is not whether a federal court believes the state court's determination was

incorrect but whether that determination was unreasonable – a substantially higher threshold"));

Waddington v. Sarausad, — U.S. — , 129 S.Ct. 823, 831 (2009) (where it is the state court's

application of governing federal law that is challenged, "the state court's decision must be shown

to be not only erroneous, but objectively unreasonable.") (internal citations and quotations

omitted). 

For the reasons set forth below, Petitioner has not shown that the Superior Court's

adjudication of any his claims was an unreasonable application of Strickland. 

Claim 1

Petitioner contends that Hathaway was ineffective for failing to contest on direct appeal

the constitutionality of the application of § 9712 in his sentencing. As set forth infra, Hathaway

had argued to the Superior Court that Petitioner should not have been subject to the mandatory

minimum sentence set forth at § 9712 because there was no credible proof that he had actual or

constructive knowledge that his accomplice had a firearm, and also because the firearm was not

in his possession nor within his immediate physical control during the course of the robbery. 

Hathaway, however, did not contend that the application of § 9712 was an error of constitutional

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 7 of 12
 

5

The statutory maximum for robbery in this case was 20 years' imprisonment. (SCR No. 40 at 12 (citing 18

PA.CONS.STAT. § 1103(1)). The statutory maximum for conspiracy to commit robbery is also 20 years. (Id.) Thus,

Petitioner's five to ten year term of imprisonment was within the statutory maximum.

 

6

In Blakely, the Supreme Court held that that the "statutory maximum" for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. 

542 U.S. at 303. In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose

after finding additional facts, but the maximum she may impose without any additional findings. Id. 

8

proportion, and in Claim 1 Petitioner contends that he should have. Specifically, Petitioner

asserts that Hathaway was ineffective for failing to argue that the application of § 9712 violated

the Supreme Court's pronouncement in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that:

"Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt." 

In rejecting this claim, the Superior Court held that there was no merit to Petitioner's

argument that his constitutional rights were violated by the application of § 9712 since the

imposition of the minimum sentence did not exceed the statutory maximum authorized by the 5

jury's verdict and therefore Apprendi and its progeny Blakey v. Washington, 542 U.S. 296 (2004)

were not offended. See also Commonwealth v. Kleinicke, 895 A.2d 562 (Pa. Super. 2006). 

6

Because appellate counsel cannot be deemed ineffective for failing to pursue a meritless issue,

the Superior Court rejected Petitioner's claim that Hathaway's performance was constitutionally

deficient. (SCR No. 47, Pollard, No. 862 WDA 2006, slip op. at 6-8). 

There is no basis under AEDPA to disturb the Superior Court's adjudication. It does not

grant relief on the type of constitutional claim that Petitioner contends Hathaway should have

raised. See, e.g., Commonwealth v. Mitchell, 883 A.2d 1096 (Pa. Super. 2005) (no right to jury

trial for five year minimum mandatory sentence under § 9712 based on finding that defendant

visibly possessed a firearm); see also Kleinicke, supra. Thus, if Hathaway had challenged the

application of § 9712 on constitutional grounds, that claim would have been denied. Since

Hathaway cannot be faulted for omitting a meritless issue on appeal, the Superior Court's

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 8 of 12
7

This claim is regarding the following exchange during Fox's cross-examination:

Sandmeyer: You describe some two African American males were on the steps on September

21 , correct? st

Fox: Yes.

Sandmeyer: Had you ever seen those seen those two individuals before?

Fox: One of them I did, yes.

Sandmeyer: Where had you seen that individual?

Fox: With [Petitioner]. The other time that [Petitioner] came to the door looking for

Matt he was with him. The one with the gun I've never seen before until that day. 

The other one, I seen him.

Sandmeyer: Okay. And did you know who that individual was?

Fox: I wasn't sure about it, but I was told that it was like his brother-in-law, married to

his sister. His name was Will. That's just what I heard.

(N.T., Day 1 at 61 (emphasis added)). 

9

decision was not an unreasonable application of Strickland. See, e.g., Johnson v. Tennis, 549

F.3d 296, 302 (3d Cir. 2008). In addition, Petitioner cannot show that he was prejudiced because

he cannot establish that, but for Hathaway's alleged ineffectiveness, there is a reasonable

probability that he would have received relief on direct appeal. 

Claim 2

In his next claim, Petitioner argues that his trial attorney, Sandmeyer, was ineffective for

eliciting alleged hearsay statements from prosecution witness Matthew Fox during crossexamination, and for failing to request a curative instruction. In response to a question asked by

Sandmeyer, Fox stated that he had recognized one of the accomplices as Petitioner's brother-inlaw, based upon what he had been previously told. Petitioner contends that Fox's identification 7

of his brother-in-law was inadmissible hearsay. He argues that he was prejudiced by Fox's

testimony because the jury would have believed that it was more likely than not that he had

criminally conspired with the two otherwise unidentified males accompanying him on the day of

the incident if the jury had accepted as true testimony that one of those individuals was related to

him. 

In rejecting this claim, the Superior Court held that (without determining the "highly

debatable point that Mr. Fox's had uttered inadmissible hearsay") Petitioner could not show that

he was prejudiced because "the evidence of [his] participation in a criminal conspiracy is so

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 9 of 12
 

8

In addressing on direct appeal Petitioner's claim that there was insufficient evidence to support a verdict of conspiracy,

the Superior Court held:

In the present case, the evidence establishes that there was a constant association among [Petitioner]

and the two co-conspirators. They were viewed driving together just prior to the crime, they approached

the front door of 108 Sobieski Street together, and they fled together. Indeed, one of [Petitioner's] two

companions aided [Petitioner] during the flight by striking Mr. Fox on the head with a gun. [Petitioner]

knew about the commission of the crime since he was actively involved in it, he asked his companion

to display a gun, and then actually stole the chain from Mr. Fox.

We do not view as relevant the fact that the three men originally approached the house in

search of Mr. Rumbaugh. The fact remains that [Petitioner] asked for his cohort to display the weapon

and then took Mr. Fox's necklace. As noted, rarely is there direct evidence of an actual agreement;

however, conspiracy will be found if a defendant intended to commit the crime along with his coconspirator. Here, the evidence supports the finding that [Petitioner] directed his confederate to show

the gun to Mr. Fox in order to further the robbery. Hence, we find the evidence was sufficient to

support the jury's conclusion that [Petitioner] engaged in a conspiracy.

(SCR No. 33, Pollard 1, No. 1851 WDA 2003, slip op. at 6-7). 

 

9

Dacus was the only witness presented by the defense. She testified that that she had observed two African American

males approach Petitioner on a basketball court early in the afternoon on the day of the crimes. She stated that they

(continued...)

10

overwhelming as to make" Sandmeyer's alleged ineffectiveness "regarding Mr. Fox's remarks

completely harmless." (SCR No. 47, Pollard 2, No. 862 WDA 2006, slip op. at 9-10). The

Superior Court's adjudication easily withstands AEDPA's standard of review. It cannot be said

that there is a reasonable probability that the jury would not have convicted him of conspiracy to

commit robbery but for Fox's testimony that he had heard that one of Petitioner's accomplices

was his brother-in-law. The Commonwealth introduced sufficient evidence to establish the

existence of a conspiracy, and the testimony of Fox at issue in this claim was inconsequential to 8

that conviction. 

Claim 3 

In his final claim, Petitioner contends that Sandmeyer was ineffective for failing to object

to the following remarks made by the prosecutor in her closing argument, which he contends

improperly referenced the fact that he had exercised his right not to testify:

Mr. Sandmeyer also indicates to you or tries to convince you that maybe not

everybody testified that should have or could have. Well as you saw today,

Mr. Sandmeyer presented witnesses as well in the form of Miss [Lisa Marie] Dacus.

9

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 10 of 12
(...continued) 9

started kicking him. (N.T., Day 2 at 14-15). In his closing argument, Sandmeyer referenced Dacus's testimony when

he asked the jury to consider whether "an individual [would] get into a fight with two people and then go off with

them and commit a robbery or whatever was being done that day[?]" (Id. at 20; see also id. at 21 ("[A]sk yourself,

would [Petitioner then willingly go with these people and be the leader of an endeavor[?]"). 

11

He had the option with other people. And if there would be any inconsistencies with

our missing witnesses, or who he's telling you are missing, given the fact that he not

only did have Miss Dacus testify, I would suggest that not only absent witnesses are

the fault of the Commonwealth.

(N.T., Day 2 at 34). 

The Superior Court denied this claim because it determined that the prosecutor was not

commenting on Petitioner's right to remain silent, and therefore there was no basis for Sandmeyer

to object. (SCR No. 47, Pollard 2, No. 862 WDA 2006, slip op. 10-11). A review of the trial

transcript supports the Superior Court's conclusion and no habeas relief is warranted under

AEDPA. 

During his closing argument, Sandmeyer highlighted inconsistencies in the testimony

given by the prosecution witnesses. (N.T., Day 2 at 20-29). He then questioned why the

prosecution failed to call Mark Lupo's father as a witness, since he was living at the home at 108

Sobieski Street and apparently was sitting in the living room when Petitioner and his accomplices

came to the door. (See N.T., Day 1 at 29-30, 44-45). When considered in context, a fair reading

of the prosecutor's subsequent challenged remarks supports the conclusion that she was

responding to Sandmeyer's criticism that the prosecution did not call as a witness Lupo's father,

and she was in turn suggesting that if the father could have provided the defense with any helpful

testimony, Sandmeyer would have called him to support the defense case. Thus, Petitioner's

contention that the prosecutor impermissibly commented on his failure to testify is without merit,

and there was no basis for Sandmeyer to object. Moreover, Petitioner has not shown that he was

prejudiced by Sandmeyer's failure to do so. 

C. Certificate of Appealability

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

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 11 of 12
12

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 Petitioner's claims are

without merit. Accordingly, a certificate of appealability should be denied.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the Petition for Writ of

Habeas Corpus be denied and that a certificate of appealability be denied. 

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.D.2 of the Local Civil Rules, Petitioner is allowed to file objections in accordance with the

schedule established in the docket entry reflecting the filing of this Report and Recommendation. 

Failure to file timely objections may constitute a waiver of any appellate rights. See Nara v.

Frank, 488 F.3d 187 (3d Cir. 2007). 

 

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Dated: April 21, 2010

cc: The Honorable Sean J. McLaughlin

United States District Judge

Case 1:07-cv-00259-SJM-SPB Document 14 Filed 04/21/10 Page 12 of 12