Opinion
CIVIL ACTION NO. 00-CV-2055
December 2, 2003
MEMORANDUM AND ORDER
Presently before the Court is a pro se petition for a writ of habeas corpus (Doc. No. 1). Magistrate Judge James R. Melinson filed a Report and Recommendation (the "R R") (Doc. No. 19) recommending that the petition be denied, and Petitioner filed objections thereto (Doc. No. 21). Petitioner does not object to the factual and procedural background stated in the R R. We therefore adopt that background, FED. R. CIV. P. 72(b), and, for clarity, we will simply restate it here. Because Petitioner is pro se, we will liberally construe his objections. See Haines v. Kerner, 404 U.S. 519, 520 (1972); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969). Where Petitioner has made specific objections, we will review his claims de novo. FED. R. CIV. P. 72(b). For the following reasons, however, we conclude that his petition must be denied.
Background
On December 19, 1990, Petitioner was found guilty of robbery and carrying a firearm on public streets or property following a jury trial in the Court of Common Pleas of Philadelphia County. On February 20, 1991, after denying Petitioner's post-verdict motions, the trial court sentenced Petitioner to a term often to twenty years' imprisonment for robbery, and a consecutive term of two and one-half to five years' imprisonment for illegal possession of a firearm.
Petitioner retained new counsel to represent him on direct appeal in the Superior Court of Pennsylvania. On appeal, Petitioner claimed that his sentence was excessive, and that trial counsel was ineffective for failing to file a motion to modify the sentence rather than an immediate direct appeal. The Superior Court affirmed the judgment of sentence on November 6, 1991. Commonwealth v. Booker, 603 A.2d 1077 ( Pa. Super. 1991) (table). The Supreme Court of Pennsylvania denied allocatur on July 22, 1992. Commonwealth v. Booker, 611 A.2d 710 (Pa. 1992) (table).
On July 27, 1993, Petitioner filed a pro se petition for post-conviction collateral relief under Pennsylvania's Post Conviction Relief Act (the "PCRA"), 42 PA. CONS. STAT. § 9541, et seq. Counsel was appointed, and Petitioner filed an amended petition claiming that: (1) the trial court erred in sentencing Petitioner outside of the state sentencing guidelines; (2) trial counsel was ineffective for failing to file a motion to modify sentence rather than a direct appeal; and (3) appellate counsel was ineffective for failing to preserve the ineffective assistance of counsel claim on direct appeal. Following an evidentiary hearing, the PCRA court denied Petitioner's petition on March 5, 1997.
Petitioner filed a timely appeal in the Superior Court of Pennsylvania asserting the three claims raised before the PCRA court. On June 23, 1999, the Superior Court affirmed the order of the PCRA court. Commonwealth v. Booker, 742 A.2d 199 (Pa.Super. 1999) (table). In an order dated October 14, 1999, the Supreme Court of Pennsylvania denied allowance of appeal. Commonwealth v. Booker, 745 A.2d 1217 (Pa. 1999) (table).
On or about April 20, 2000, Petitioner filed the instant petition for a writ of habeas corpus in which he claims: (1) the trial court erred in sentencing of Petitioner outside of the sentencing guidelines; (2) ineffective assistance of trial counsel for failing to file a motion to modify sentence; (3) ineffective assistance of appellate counsel for failing to preserve Petitioner's "appellate rights under the Fourteenth Amendment"; and (4) the PCRA court denied Petitioner due process of law by conducting the evidentiary hearing in the absence of trial counsel who would have testified in support of Petitioner's claims.
The Commonwealth contends that Petitioner is not entitled to federal habeas relief because his petition has not been properly filed and because it is without merit.
We need not address the issue of whether Petitioner properly filed his habeas petition because we conclude the petition has no merit.
Petitioner's First Claim: Sentencing Error
Petitioner's first claim is that the trial court erred when it sentenced him to a maximum sentence which was outside the aggravated range specified in the Pennsylvania sentencing guidelines. We agree with the R R that this claim is not cognizable because a challenge to a state court's discretion at sentencing is not reviewable in a federal habeas proceeding. See Pringle v. Court of Common Pleas, 744 F.2d 297, 300 (3d Cir. 1984). See also 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("We have stated many times that `federal habeas corpus relief does not lie for errors of state law.'") (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). It was within the trial court's discretion to sentence Petitioner outside the range specified in the Pennsylvania sentencing guidelines. See 42 PA. CONS. STAT. § 9721(b). The sentence imposed by the trial court did not exceed statutory limits. See 19 PA. CONS. STAT. §§ 1103, 3701, and 42 PA. CONS. STAT. § 9756(b). Accordingly, we have no jurisdiction to review Petitioner's first claim.
Petitioner also argues that Apprendi v. New Jersey, 530 U.S. 466 (2000) entitles him to relief. In Apprendi, the Supreme Court held that "[o]ther 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." 530 U.S. at 490. In this case, Petitioner was not subjected to an enhanced statutory maximum sentence. Rather, Petitioner received a sentence within the statutory limits which does not implicate Apprendi and we have no jurisdiction to review that decision. Accordingly, we conclude that Petitioner's first claim has no merit and must be dismissed.
We need not discuss whether Petitioner exhausted his Apprendi claim because we find that the claim is clearly without merit. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
Petitioner's Second Claim: Ineffective Assistance of Trial Counsel
Petitioner's second claim asserts that his trial counsel was ineffective for failing to file a post-trial motion to modify his sentence. As noted in the R R, this claim was first raised on direct appeal in the Superior Court of Pennsylvania. After determining that Petitioner had waived his challenge to the discretionary aspects of his sentencing because he had failed to file a motion to modify his sentence, the Superior Court considered his ineffective assistance of counsel claim and found as follows:
To sustain an ineffectiveness claim, appellant must show that the omission was of arguable merit, that counsel's chosen course had no reasonable basis designed to serve appellant's interests, and that appellant suffered prejudice as a result of counsel's ineffectiveness. Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987). After thoroughly reviewing appellant's brief, we find that appellant's cursory allegation does not meet the Pierce standards. Additionally, there is no evidence in the record or in appellant's brief that appellant ever asked trial counsel to file a motion to modify sentence. Appellant has the burden of informing counsel of his desire to pursue known appellate rights. Commonwealth v. Ross, 432 A.2d 1073, 1076 ( Pa. Super. 1988). See Commonwealth v. Cook, 547 A.2d 406, 408 (Pa.Super. 1988) (counsel will not be deemed ineffective for failing to file a post-trial motion when appellant has not requested counsel to file the motion). For these reasons, we find that appellant's allegation of ineffectiveness lacks merit, and we will not reach the merits of appellant's challenge to the discretionary aspects of sentencing.Commonwealth v. Booker, No. 708, slip op. at 2-3 (Pa.Super.Ct. Nov. 6, 1991).
When considering a petition for a writ of habeas corpus, we must presume that factual determinations by a state court are correct unless they are rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e). The state court found no evidence in the record to support Petitioner's claim that he asked his trial counsel to file a post-trial motion to modify his sentence. The Magistrate Judge found that Petitioner failed to present any facts to rebut that finding, and he therefore presumed that Petitioner did not make such a request. Accordingly, the Magistrate Judge could not conclude that the state court's rejection of Petitioner's ineffectiveness of counsel claim was contrary to, or involved an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984); or that the state court's determination was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(1) (2).
In his objections, Petitioner points to three letters that he claims show that he did ask his trial counsel to file a post-trial motion to modify his sentence. The first letter is from John P. Cotter, Petitioner's PCRA counsel, to Petitioner's trial counsel. The letter is dated October 17, 1996, nearly six years after Petitioner's convictions. In the letter Mr. Cotter states that he "understand[s]" that Petitioner asked his trial counsel to file a motion to modify his sentence.
The other two letters are both from Petitioner to Mr. Cotter and contain Petitioner's assertions that he asked his trial counsel to file such a motion. Those letters are dated August 21 and 28, 1995.
The three letters submitted by Petitioner are not clear and convincing evidence that Petitioner asked his trial counsel to file a motion to modify his sentence. The letter authored by Mr. Cotter and dated October 17, 1996, fails to state any factual basis for Mr. Cotter's "understand[ing]" that Petitioner asked his trial counsel to file such a motion. Presumably, Mr. Cotter gained his "understand[ing]" from Petitioner. The other two letters contain nothing more than Petitioner's assertions that he made the request to his trial counsel. However, the Philadelphia Court of Common Pleas specifically rejected as not credible Petitioner's testimony that he made such a request. Commonwealth v. Booker, No. 0023, slip op. at 3 (Pa. Commwt. Ct. Aug. 25, 1989). At best, the three letters simply reassert testimony that a state court has found not credible. In sum, we find that the letters have little, if any, evidentiary value. It follows that Petitioner has failed to meet the "clear and convincing" standard of proof required under 28 U.S.C. § 2254(e). Accordingly, we find no error in the state court's rejection of Petitioner's claim of ineffectiveness of counsel. See Then v. INS, 58 F. Supp.2d 422, 434 (D.N.J. 1999) ("[E]ffective assistance of counsel requires only that counsel respect the desire of the client to file an appeal.") (citing United States ex rel. O'Brien v. Maroney, 423 F.2d 865, 868 (3d Cir. 1970)).
Petitioner's Third Claim: Ineffective Assistance of Appellate Counsel
Petitioner's third claim is that his appellate counsel was ineffective for failing to preserve his due process rights. The Magistrate Judge construed this claim as consistent with a claim Petitioner raised before the PCRA court: that Petitioner's appellate counsel was ineffective for failing to preserve a challenge to the discretionary aspects of his sentence. The PCRA court found that because the Superior Court had rejected Petitioner's sentencing challenge and his claim that trial counsel was ineffective for failing to file a motion to modify sentence, appellate counsel could not be deemed ineffective for failing to preserve these issues on appeal. Commonwealth v. Booker, No. 1111, slip op. at 4 (Pa.Super.Ct. Aug. 25, 1998). The Magistrate Judge agreed that appellate counsel cannot be found ineffective for failing to preserve a meritless claim. Petitioner does not state any specific objections to this finding. Under the circumstances, we accept the finding of the Magistrate Judge and deny Petitioner's third claim.
Petitioner's Fourth Claim: Due Process Violation
Petitioner's fourth claim is that the PCRA court denied Petitioner due process of law by conducting an evidentiary hearing in the absence of trial counsel who would have testified in support of Petitioner's claims. The Magistrate Judge found that Petitioner procedurally defaulted this claim by failing to timely raise it in state court. He further found that Petitioner failed to assert any facts to establish either cause and prejudice, or actual innocence, so that a federal court could review his claim despite it being unexhausted and procedurally defaulted. Petitioner makes a number of vague objections to the findings of the Magistrate Judge. However, Petitioner does not deny that his claim is unexhausted and procedurally defaulted. Furthermore, Petitioner fails to assert any facts to establish either cause and prejudice, or actual innocence, so that we could review his claim. Therefore, we adopt the Magistrate Judge's finding, and deny Petitioner's fourth claim.
Rather, Petitioner admits that he did not raise the due process claims in state court.
After a thorough review we are compelled to conclude that none of Petitioner's claims have any merit. We also find no probable cause to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
An appropriate order follows.
ORDER
AND NOW, on this 2nd day of December, 2003, it is ORDERED as follows:
1. The objections to the Report and Recommendation are OVERRULED.
2. The Report and Recommendation is APPROVED and ADOPTED.
3. The Petition For Writ Of Habeas Corpus is DISMISSED.
4. There is no probable cause to issue a certificate of appealability.
IT IS SO ORDERED.