Crocker v. Klem

450 F. App'x 136
CourtCourt of Appeals for the Third Circuit
DecidedNovember 4, 2011
DocketNo. 09-1112
StatusPublished
Cited by10 cases

This text of 450 F. App'x 136 (Crocker v. Klem) 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
Crocker v. Klem, 450 F. App'x 136 (3d Cir. 2011).

Opinion

OPINION OF THE COURT

FISHER, Circuit Judge.

Tysheem Crocker appeals from the District Court’s denial of his petition for writ of habeas corpus. For the reasons stated [137]*137below, we will affirm the District Court’s order.

I.

We write principally for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.

On October 5, 1997, two rival New York gangs, the Cream Team and the Gods, engaged in an altercation on Maple Street in York, Pennsylvania. Tysheem Crocker (“Crocker”) was the leader of the Cream Team, and his co-defendant Melvin Bethune (“Bethune”) was a member of the same. Kendu Smith (also known as “Do-Work”) was the leader of the Gods. After a physical altercation between Bethune and a member of the Gods, Crocker and Bethune drove to New York City to gather three other co-conspirators, including “Corleone,” to retaliate against the Gods. They met up with Danny Steele (“Steele”), another member of the Cream Team, at a laundromat between Queen Street and Maple Street in York before proceeding to a Super 8 Motel to plan the assault. Crocker rented the motel room under the name Shondell Shamble.

According to Steele, who testified on behalf of the Commonwealth of Pennsylvania (“Pennsylvania”) at Crocker and Bethune’s trial, the group discussed retaliating against Do-Work and anyone who was with him. The group then drove to retrieve guns that were stored in a house located on Maple Street and proceeded to the corner of Maple Street, where Do-Work was playing dice with a number of people, including Raymond Clark (“Clark”). Crocker confronted Do-Work and drew his machine gun, but when he attempted to fire his gun, the gun jammed. Immediately thereafter, one of the unnamed co-conspirators from New York discharged his firearm, which caused the remaining Cream Team members to open fire on the Gods and other people playing dice. Crocker and his co-conspirators chased after various individuals. Corleone, Steele, and an unnamed co-conspirator ran in Clark’s direction. Corleone shot Clark twice and killed him.

Police officers conducted an investigation, focusing on Crocker, Steele, and Bethune. Steele pled guilty to conspiracy to commit murder in return for unspecified consideration by Pennsylvania. Corleone was never apprehended. On January 19, 1998, Crocker was arrested in New York, at which time he gave the name Shondell Shamble to the arresting officers. Crock-er’s case was consolidated with Bethune’s case, and Steele testified on behalf of Pennsylvania at their trial. On January 15, 1999, Crocker was found guilty of first-degree murder and criminal conspiracy. He was sentenced to life imprisonment for the murder conviction and to a concurrent twenty-to-forty-year term of imprisonment for the criminal conspiracy conviction.

After his conviction and sentence were affirmed on direct appeal, Crocker filed a pro se Post Conviction Relief Act (PCRA) petition under 42 Pa.C.S.A. §§ 9541-9546. Counsel was appointed, and the petition was denied on March 2, 2001. Crocker’s PCRA counsel failed to file a direct appeal, so Crocker was granted leave to file an appeal nunc pro tunc. But PCRA counsel still failed to file the appeal, so pursuant to a second PCRA petition filed by Crocker, new counsel was appointed. On August 15, 2001, a direct appeal was filed from the denial of his first PCRA petition but was denied. On May 15, 2003, Crocker filed his third PCRA petition, which the PCRA court dismissed as untimely. In the meantime, Crocker timely filed a petition for writ of habeas corpus in the District Court on September 29, 2003. On May 11, 2004, [138]*138the Superior Court of Pennsylvania affirmed the PCRA court’s dismissal of Crocker’s third PCRA petition. On May 24, 2004, the District Court stayed his habeas corpus petition to allow Crocker to exhaust state court review of his claims. On December 9, 2008, the District Court denied Crocker’s petition for habeas corpus. Crocker timely appealed the District Court’s order.

II.

The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1381, 2241, and 2254. We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253.

III.

A.

Crocker submits that trial counsel rendered ineffective assistance by failing to investigate the prosecution’s contention that Crocker rented a Super 8 Motel room the night of the murder and used that room to plan the murder conspiracy. He argues that the District Court erred by not granting an evidentiary hearing regarding this claim in light of newly discovered evidence. We disagree. The District Court properly declined to address the merits because Crocker procedurally defaulted on this claim due to a state procedural bar.

All claims that a petitioner in state custody attempts to present to a federal court for habeas corpus review must have been fairly presented to the state court. See 28 U.S.C. § 2254(b). Thus, with limited exceptions, “federal courts refrain from addressing the merits of any claim raised by a habeas petitioner that was not properly exhausted in state court.” Lines v. Larkins, 208 F.3d 153, 159 (3d Cir.2000) (citing Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Claims “deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner establishes cause and prejudice or a fundamental miscarriage of justice to excuse the default.” Id. at 160 (internal citations and quotations omitted).

Crocker raised this claim based on newly discovered evidence for the first time when he appealed the PCRA court’s dismissal of his third PCRA petition to the Pennsylvania Superior Court. Under Pennsylvania law, “[ijssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa. R.App. P. 302(a). Thus, the Pennsylvania Superior Court held that Crocker’s ineffective assistance of counsel claim was waived on appeal because Crocker failed to raise it in his PCRA petition for the PCRA court to review. Pennsylvania v. Crocker, 855 A.2d 129 (Pa.Super.2004). When a state law bars a petitioner from seeking further review of his claims in state court, the claims are procedurally defaulted. Lines, 208 F.3d at 160. Thus, we may not review this procedurally defaulted claim unless Crocker establishes cause and prejudice or a fundamental miscarriage of justice to excuse the default. Id. at 159.

Crocker fails to show cause and prejudice to overcome this procedural default.

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Bluebook (online)
450 F. App'x 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crocker-v-klem-ca3-2011.