Clark v. Secretary Pennsylvania Department of Corrections

687 F. App'x 152
CourtCourt of Appeals for the Third Circuit
DecidedApril 24, 2017
Docket15-3997
StatusUnpublished
Cited by1 cases

This text of 687 F. App'x 152 (Clark v. Secretary Pennsylvania Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Secretary Pennsylvania Department of Corrections, 687 F. App'x 152 (3d Cir. 2017).

Opinion

OPINION *

SHWARTZ, Circuit Judge.

Ronald Clark was convicted of first-degree murder, criminal conspiracy, and possession of an instrument of crime in connection with the shooting of Aineis Sunn Life at the Wayne Junction Deli in Philadelphia on October 7, 1993. Clark filed a habeas petition, asserting that his trial counsel was ineffective for failing to: (1) probe an eyewitness’s drug use and purported recantation of her identification; (2) introduce testimony of the fiancee of another eyewitness to discredit that witness’s testimony; and (3) present testimony of his employer to support his alibi defense. The District Court denied his petition. Even assuming that these failures made his counsel’s performance deficient, Clark has not shown that he was prejudiced by them. We will therefore affirm.

I

A

On October 7, 1993, Life and Clark exchanged words inside the deli at around 9:30 p.m. Clark left the deli briefly, returned with a shotgun, and shot Life in the head.

There were two trials. The first resulted in a hung jury. At both trials, the prosecution presented three eyewitnesses: Kevin Pettiway, Sherry Taggart, and Nijel Bell.

Pettiway testified that he was with Life on the day of the murder. In the evening, he and Life went to the deli. While waiting *155 in the deli, Pettiway noticed Clark standing behind Life and heard Life say, “Can you back up off of me?” App. 728. Clark responded, “Oh, it’s like that,” and then left the store “in a hurry.” App. 729. Petti-way stated that within two minutes of leaving the store, Clark returned with an umbrella that had a shotgun inside it. Clark put the shotgun to the back of Life’s head, said “What you got to say now, motherfucker?” and pulled the trigger. App. 737.

Taggart testified that she worked for the deli, and while she was sweeping the parking lot on the evening of October 7, she noticed a man walk by with an umbrella and enter the store. Taggart observed that man in the deli, whom she identified as Clark in a photo array after the shooting, put a gun to Life’s head, 1 say “what the ‘F’ you say now?” and then shoot Life in the head. App. 885. She ducked behind a car but observed Clark walk out of the deli carrying the umbrella. Taggart then went to Life’s aunt’s house and informed her of the shooting.

Bell testified that at around 9:00 p.m., he and Kevin Dwight (Clark’s co-defendant) had a conversation in a playground near the deli. Bell knew that Dwight carried a shotgun in an umbrella and had it with him that night. Several minutes after speaking with Dwight, Bell walked down the street to his fiancée, Nicole Shaffer, but then stepped away from her .to have another conversation with Dwight. Bell noticed Clark when Clark was walking at a fast pace away from the deli. Bell saw Clark whisper in Dwight’s ear, Dwight hand Clark the umbrella, and Clark walk quickly back toward the deli. Bell testified that he then heard a shotgun blast and observed Clark running from the deli, mumbling something as he passed him, umbrella in hand. Bell entered the deli and saw that- Life had been shot. The next day a woman left a shotgun on Bell’s doorstep, which a ballistics expert confirmed was the murder weapon.

Shaffer did not testify but made a statement to the police following the shooting. She explained that she saw Dwight with the umbrella and shotgun but did not see Clark or see Dwight hand the umbrella to him. She said that she was with Bell around the time of the shooting, but was not with him at every moment because Bell went across the street to speak with others, and she went inside a nearby house to use the bathroom. 2

Clark asserted an alibi defense. He presented testimony from his housemates who said that they were at home with Clark throughout the evening of October 7, drinking, playing chess, and celebrating a job offer Clark received that day to work at the Rittenhouse Hotel. The parties stipulated that Clark interviewed at the hotel on October 6 and began working there on October 11.

Jeffrey Berger, the Director of Employment and Benefits at the hotel, was not called as a witness, but Clark now claims that his attorney should have called him to corroborate his alibi. Berger submitted a declaration to the PCRA court in which he stated that he called Clark’s reference on October 7, but did not state that he conveyed the offer that day. He said that his practice was to convey a job offer on the same .day as he completed the reference *156 check. Accordingly, Berger said “it would have been consistent with my practice to have called Ronald Clark on October 7, 1993 to offer him the position.” App. 1622.

B

Clark raised several issues on direct appeal, including claims for ineffective assistance of counsel, but the Pennsylvania Supreme Court affirmed his conviction and sentence. Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 42-43 (1998). The United States Supreme Court denied certiorari. Clark v. Pennsylvania, 526 U.S. 1070, 119 S.Ct. 1465, 143 L.Ed.2d 550 (1999).

Clark filed a pro se habeas petition pursuant to the Pennsylvania Post-Conviction Relief Act (“PCRA”) seeking reversal of his conviction. The PCRA court denied his request 3 and the Pennsylvania Supreme Court affirmed. 4 Clark filed a 28 U.S.C. § 2254 petition, which was denied. We granted a certificate of appealability on whether trial counsel was ineffective for failing to (1) investigate and present evidence related to Taggart’s alleged drug use at the time of the murder and identification of Clark; (2) present Shaffer’s testimony; and (3) call Berger instead of stipulating about the dates concerning Clark’s employment at the hotel. We will next review the state courts’ and District Court’s rulings on these issues before examining the issues ourselves.

Clark asserts that his trial counsel was ineffective for failing to, investigate and introduce evidence about Taggart’s drug use. Before the PCRA court, Clark presented a declaration from Taggart in which she stated that she was arrested a few days after Life was shot, and she told a detective that she was “high and drunk” when Life was shot and had not slept during the days before the shooting. App. 1577. Taggart explained that she did not really know who the shooter was or get a good look at him because she was under the influence of drugs and alcohol at that time and because she had ducked behind parked cars. Her declaration also said she was forced to testify, and lie, about Clark—including about identifying him in the photo array—-and she “felt so bad” about it that she sent a letter to Clark’s mother telling her that she “was [a] junkie and the police made [her] say what [she] said.” App. 1579.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

CLARK v. BEARD
E.D. Pennsylvania, 2023

Cite This Page — Counsel Stack

Bluebook (online)
687 F. App'x 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-secretary-pennsylvania-department-of-corrections-ca3-2017.