                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2009

Conn v. Lavan
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4444




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Recommended Citation
"Conn v. Lavan" (2009). 2009 Decisions. Paper 1300.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1300


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-4444
                                    ____________

                                    JOHN CONN,
                                                     Appellant
                                          vs.

             THOMAS LAVAN; THE DISTRICT ATTORNEY OF THE
             COUNTY OF PHILADELPHIA; THE ATTORNEY
             GENERAL OF THE STATE OF PENNSYLVANIA
                              ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Civ. No. 04-CV-01990)
                  District Judge: Honorable Lawrence F. Stengel

                                    ____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 2, 2009
                  Before: BARRY, WEIS and ROTH, Circuit Judges.

                                (Filed: May 28, 2009)
                                    ____________

                                      OPINION


WEIS, Circuit Judge.

             John Conn appeals the District Court’s order denying his habeas corpus

petition. We will affirm.

                                           1
              On February 20, 1981, a jury empaneled in the Court of Common Pleas of

Philadelphia County, Pennsylvania, convicted Conn of second degree murder, arson,

burglary, and theft. The convictions arose from a series of events in which Martha

Greiss, an elderly, deaf woman was killed and her house was burgled and set ablaze.

Conn was sentenced to a mandatory term of life imprisonment for murder and a

consecutive term of five to ten years for arson.

              After exhausting his direct appeal capabilities, Conn filed a pro se petition

under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq.,

raising a number of claims for relief. The Court of Common Pleas denied his petition.

The Pennsylvania Superior Court affirmed on October 2, 2003, and the Pennsylvania

Supreme Court denied allowance of appeal on February 18, 2004.

              On May 7, 2004, Conn filed a pro se petition for habeas corpus in the

District Court. In that petition, Conn set forth a claim he had pursued during his PCRA

proceedings – that he received ineffective assistance of counsel because his trial counsel

failed to investigate or call Robert Dugan as a witness. On June 7, 2004, Conn filed a

motion to amend his habeas corpus petition. The District Court granted Conn’s motion

on June 9, stating, “Petitioner’s amendment shall be filed by July 9, 2004.” Conn filed an

amended petition on July 7, 2004, that raised seven additional issues.

              A magistrate judge issued a report and recommendation on Conn’s petition

on January 31, 2005. With respect to the claim that he received ineffective assistance of



                                             2
counsel because his trial counsel failed to call for Dugan’s testimony, the magistrate

judge found that the Pennsylvania Superior Court reasonably applied Strickland v.

Washington, 466 U.S. 668 (1984). The magistrate judge also determined that the

remainder of Conn’s claims, which were presented in his amended petition, were barred

by the statute of limitations set forth in 28 U.S.C. § 2244(d).1 Accordingly, the magistrate

judge recommended that Conn’s petition be denied.

              In an order entered August 31, 2005, the District Court approved and

adopted the magistrate judge’s report and recommendation over Conn’s objections and

denied his habeas corpus petition in its entirety. Subsequently, on January 22, 2008, we

granted Conn’s petition for a certificate of appealability as to the following issues:

              “1) whether [Conn’s] trial attorney was ineffective for failing
              to investigate or call Robert Dugan as a witness; and 2)
              whether the District Court erred in denying appellant
              equitable tolling because the Magistrate Judge’s order
              granting his motion to amend misled him into believing he
              had until July 9, 2004, to add his new claims.”

              Since the District Court did not hold an evidentiary hearing, our review of

its order is plenary. Holland v. Horn, 519 F.3d 107, 111 (3d Cir. 2008).

              We will address the ineffective assistance of counsel issue first. Conn

argues that the Pennsylvania Superior Court “utterly failed” in applying Strickland to his




              1
                 28 U.S.C. § 2244(d) provides, with qualifications, a general one-year
period of limitations for persons in custody pursuant to a state court judgment to file a
petition for a writ of habeas corpus.

                                              3
PCRA petition.

              We agree with the District Court that the Superior Court’s application of

Strickland was not unreasonable. “[A] federal court may not grant a state prisoner’s

habeas application unless the relevant state-court decision ‘was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.’” Knowles v. Mirzayance, 129 S.Ct. 1411, 1418

(2009) (quoting 28 U.S.C. § 2254(d)(1)). Given the overwhelming qualitative and

quantitative evidence of Conn’s guilt at trial and our “doubly deferential” review in this

case, id. at 1420, we cannot say that the Superior Court’s conclusion was unreasonable.

              Conn did not demonstrate a reasonable probability that the result of his trial

would have been different had counsel investigated Dugan’s knowledge of the events at

issue or called Dugan as a witness. See id. at 1422 (to establish the “prejudice” that

Strickland requires, a claimant of ineffective assistance of counsel must demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different” (quoting Strickland, 466 U.S. at 694)).

Consequently, Conn is not entitled to habeas corpus relief on his claim that he received

ineffective assistance of counsel.

                 We do not have authority to review the second issue identified in the

certificate of appealability – whether the District Court erred in denying equitable tolling

of § 2244(d)’s statute of limitations for the remaining claims presented in the amended



                                              4
habeas corpus petition.

              The Supreme Court has held that when a District Court denies a habeas

corpus petition on procedural grounds, a certificate of appealability “should issue . . .

when the prisoner shows . . . ‘that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.’”

Jimenez v. Quarterman, 129 S.Ct. 681, 684 n.3 (2009) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)).

              The District Court’s denial of the seven habeas claims first presented in the

amended petition of July 7, 2004, was founded on a procedural basis. Conn has not

demonstrated that jurists of reason would debate that any of the seven issues first

presented in that petition state a valid claim of the denial of a constitutional right. After

further review, we conclude that we improvidently granted the certificate of appealability

on the equitable tolling issue. See Khaimov v. Crist, 297 F.3d 783, 786 (8th Cir. 2002) (a

certificate of appealability initially granted by the Court of Appeals was improvidently

granted in an appeal from the denial of a habeas corpus petition because, while the

District Court’s resolution of procedural issues was debatable, the substantive

constitutional claims raised by the petitioner were meritless). Consequently, we lack

jurisdiction over the equitable tolling issue we identified in the certificate of appealability.

See Lambert v. Blackwell, 387 F.3d 210, 230 (3d Cir. 2004) (“[w]e only have jurisdiction



                                               5
if this Court or a District Court has properly issued a certificate of appealability pursuant

to 28 U.S.C. § 2253(c)”).

              In sum, we lack jurisdiction to review the merits of the procedural issue, but

will affirm the District Court’s order denying Conn’s habeas corpus petition.




                                              6
