Opinion
Civil Action 2:19-cv-804
05-26-2022
FREDERICK COATES, Petitioner, v. DISTRICT ATTORNEY OF ALLEGHENY COUNTY, et al., Respondents.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge.
I. RECOMMENDATION
Pending before the Court is the Petition for a Writ of Habeas Corpus (ECF 4) filed by Frederick Coates (“Petitioner”). It is respectfully recommended that the Court deny each of Petitioner's claims and deny a certificate of appealability.
Respondents attached as exhibits to their Answer (ECF 11) the relevant state-court filings and decisions. The documents shall be cited to by their exhibit and Bates stamp number as follows: “Resp's Ex. at .” Respondents also submitted Petitioner's original state court record, which includes the transcripts from his trial.
A. Relevant Background
At the conclusion of a trial held in April 2016 in the Court of Common Pleas of Allegheny County (“trial court”), a jury found Petitioner guilty of the crimes of Indecent Assault of a Person Less Than 13 Years of Age, Unlawful Contact With a Minor, and Corruption of Minors. Attorney Hannah Akintoye (“trial counsel”) of the Allegheny County Public Defender's Office represented Petitioner at his trial.
At trial, the Commonwealth introduced testimony from the victim (“A.W.”), her mother (“A.T.”), and Detective Nicholas Bobbs. Petitioner testified in his own defense. The trial court, in the Appellate Rule 1925(a) opinion issued on direct appeal, summarized the evidence introduced at Petitioner's trial as follows:
A.W., the victim in this case, testified at trial that she was eight years old and that her birthday is May 8th. (Transcript of Jury Trial on Apr. 21, 2016, hereinafter TT, at 48) A.W. testified that she used to see [Petitioner] when she visited her aunt Sharon Bass' house. (TT 50-51) Bass, who A.W. calls “Aunt TT,” lived in a white house in Crafton. (TT 51-52) A.W. testified that when she was at Aunt TT's house, [Petitioner], who she called “Mr. Fred,” was also in the home and would sometimes be alone in a room with her. (TT 53) She stated that Mr. Fred touched her inappropriately on three separate occasions. Id. The first time [Petitioner] touched her she was watching cartoons in Aunt TT's room while also playing games on her phone. Id. A.W. testified that [Petitioner] entered the room [and] touched his hand to her vaginal area over her clothes. (TT 56) The touching ended when A.W. got up and left the room. (TT 57) The second instance occurred in her brother “Tom Tom's” room. (TT 58) A.W.'s sister Amonte left the room to go to the bathroom, leaving A.W. alone with [Petitioner]. Id. [Petitioner] touched her vagina with his hand over her clothes while A.W. played video games. (TT 5960) He also kissed her on the lips, which she described as different from how her mother kisses her. (TT 60) The third and final incident to which A.W. testified occurred in Tyrique's room. (TT 61) While she was watching cartoons, [Petitioner] entered the room and touched her in the same manner as he had previously. (TT 6364) A.W. identified [Petitioner] in court as the person who had touched her inappropriately. (TT 66-67)
[A.T.], A.W.'s mother, testified that Bass was [a] cousin of A.W.'s father and A.W. spent a lot of time at [Bass'] on the weekends prior to [A.T.] becoming aware of the allegations of abuse. (TT 80-81) [A.T.] testified that [Petitioner] was a childhood friend of Bass who [A.T.] did not know before last summer. (TT 82) [A.T.] noticed a change in A.W.'s behavior and asked her why she was acting so mean. (TT 85) [A.T.] testified that A.W. put her head down and said it was “the man at Aunt TT's house, the bald guy.” (TT 86) A.W. and [A.T.] went to Bass' house and A.W. said it was “Fred” and started crying hysterically. (TT 86)
Detective Nicholas Bobbs[ ] testified that he is a 15 year veteran of the City of Pittsburgh, who is currently assigned to the Sex Assault Family Crisis Unit. (TT 92) Pursuant to his investigation, Det. Bobbs interviewed [Petitioner] regarding these allegations. (TT 100) [He] testified that [Petitioner] told him “I picked her up and secured her body against mine like a baby. Her buttocks was in my hand. Yeah, I did it. It was intentional.” (TT 109) The Detective told [Petitioner] that this was not the allegation he was investigating, that the allegations were more sexual in nature. Id. [Petitioner] stated to the Detective, “I stuck my hand on the front of her
pants and touched her vagina.” (TT 109) [Petitioner] said that this happened in TT's bedroom. (TT 110) [Petitioner] told Det. Bobbs that he kissed A.W. on the lips at one point and told her that he loved her. Id. The Detective testified that [Petitioner] denied touching A.W. under her clothing. (TT 112)
[Petitioner] testified that he had been friends with Bass as a child and reconnected with her in 2014. (TT 143) He stated that he frequently visited her house where they would play cards with several other people. Id. He testified he saw A.W. while at Bass' house. (TT 144) In addition, [Petitioner] indicated that he and A.W. are “distant cousins.” Id. He testified that he did not have any memory of any of the allegations of sexual abuse. (TT 144-145) [Petitioner] agreed to be interviewed by the police. (TT 147) [He] testified that after approximately 25 minutes of denials, his emotions got the better of him and he said that he “did it.” (TT 151) He told the Detective that he touched A.W. on her vagina on the inseam of her pants. (TT 153) [Petitioner] stated that he told the police that he kissed A.W. on the cheek but did not tell them that he kissed her on the lips. (TT 154) [Petitioner] told A.W. that he loved her after A.W. had broken her arm. (TT 155) On the witness stand, he flatly denied touching A.W.[ ] in any type of sexually inappropriate manner. (TT 156-157)(Resp's Ex. 34 at 202-04.)
After the trial, Attorney Lisa Perlow, also with the Public Defender's Office, entered her appearance on Petitioner's behalf. The trial court sentenced Petitioner on July 19, 2016 as follows: Count 1, Indecent Assault, 20 to 40 months of incarceration, to be followed by a period of three years of probation; Count 2, Unlawful Contact with a Minor, no further penalty; Count 3, Corruption of Minors, three years of probation, to be served concurrent to the probation imposed at Count 1. Petitioner was also ordered to register for life under the Sex Offender Registration and Notification Act (“SORNA”) as a Tier III sex offender in accordance with 42 Pa. Cons. Stat. §§ 9799.14 and 9799.15. (Resp's Ex. 9 at 61-66.)
Respondents explain that Petitioner was convicted of a Tier III offense under SORNA because he was convicted of Indecent Assault of a Person Less Than 13 Years of Age and that persons convicted of a Tier III offense are subject to lifetime registration. (ECF 11 at 27-28, citing 42 Pa. Cons. Stat. § 9799.15(a)(3)).
At the sentencing hearing, Attorney Perlow advised the trial court that Petitioner wanted to challenge the validity of his judgment of sentence by raising claims of trial counsel's ineffectiveness. Attorney Perlow could not raise these claims because both she and trial counsel worked for the Public Defender's Office. Thus, the trial court appointed Attorney Lisa Leake of the Office of Conflict Counsel to represent Petitioner. (Resp's Ex. 8 at 54, 58-59.)
The trial court also ordered the Sexual Offender Assessment Board to produce a report on Petitioner's potential status as a Sexually Violent Predator (“SVP”). (Resp's Ex. 10 at 67.) However, in February 2017 the Commonwealth moved to withdraw its Praecipe for a SPV hearing, thereby ending the Commonwealth's efforts to classify Petitioner as such. (Resp's Ex. 21 at 10913.) In the meantime Petitioner, through Attorney Leake, filed a direct appeal with the Superior Court of Pennsylvania. Petitioner, through counsel, withdrew this appeal in March 2017 after the Commonwealth ceased its efforts to classify him as an SVP. (Resp's Ex. 18 at 89-97; Resp's Ex. 24 at 117-18; Resp's Ex. 25 at 119.)
Later that same year, Petitioner filed a pro se motion for collateral relief under Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq. (Resp's Ex. 26 at 120-41.) The trial court appointed Attorney Suzanne M. Swan to represent Petitioner. Petitioner, through counsel, filed an amended PCRA petition asserting that Attorney Leake was ineffective for failing to properly preserve and pursue on direct appeal the claim that the jury's verdict was against the weight of the evidence. (Resp's Ex. 27 at 142-60.) The trial court granted Petitioner's amended PCRA petition and reinstated his post-sentence and direct appeal rights. (Resp's Ex. 29 at 174.)
Petitioner, through Attorney Swan, then filed a post-sentence motion in which he asserted that the jury's verdict was against the weight of the evidence. (Resp's Ex. 30 at 175-81.) The trial court denied this motion and then Petitioner, through counsel, filed an appeal with the Superior Court. In this appeal, Petitioner raised two claims: (1) the jury's verdict was against the weight of the evidence; and (2) the trial court imposed an illegal sentence because the lifetime registration requirement under SORNA exceeded the statutory maximum sentences possible for his convictions. (Resp's Ex. 36 at 211-81.) The Superior Court denied both claims on the merits in Commonwealth v. Coates, No. 1506 WDA 2017, slip op. (Pa Super. Ct. Oct. 16, 2018), affirming Petitioner's judgment of sentence. (Resp's Ex. 38 at 321-29.)
After the Supreme Court of Pennsylvania denied a petition for allowance of appeal (Resp's Ex. 42 at 402), Petitioner filed with this Court the pending Petition for a Writ of Habeas Corpus in which he raises three claims for relief, some of which contain subclaims. (ECF 4 at 5-9.) Respondents have filed their Answer (ECF 11) and the state court record. Petitioner did not file a reply. LCvR 2241(D)(2) (“the petitioner may file a Reply (also known as ‘a Traverse') within 30 days of the date the respondent files its Response.”). (See also ECF 14, advising Petitioner of his right to reply).
III. Discussion
A. Jurisdiction
The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody under a state-court judgment. It permits a federal court to grant a state prisoner a writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution.. .of the United States.” 28 U.S.C. § 2254(a). Errors of state law are not cognizable. Id.; see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Indeed, the Court is bound by the state courts' determinations of state law. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004). It is Petitioner's burden to prove that he is entitled to the writ. See, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017).
B. Exhaustion and Procedural Default
The “exhaustion doctrine” requires that a state prisoner raise his federal constitutional claims in state court through the proper procedures before he litigates them in a federal habeas petition. 28 U.S.C. § 2254(b), (c); see, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). It “is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts[.]” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
The United States Court of Appeals for the Third Circuit has explained:
A claim is exhausted if it was “fairly presented” to the state courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. at 848; Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). A petitioner has fairly presented his claim if he presented the same factual and legal basis for the claim to the state courts. See Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam). A petitioner can “fairly present” his claim through: (a) reliance on pertinent federal cases; (b) reliance on state cases employing constitutional analysis in like fact situations; (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007). See also Duncan, 513 U.S. at 366 (“If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.”)
Additionally, and importantly, a petitioner must have “invoke[d] one complete round of the State's established appellate review process[,]” to satisfy the exhaustion requirement. O'Sullivan, 526 U.S. at 845. In Pennsylvania, this requirement means that a petitioner in a non- capital case such as this one must have first presented every federal constitutional claim raised in his federal habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g., Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
As discussed further below, Petitioner did not exhaust any claim cognizable under § 2254(a) (that is, he did not raise any claim of federal constitutional error) on direct appeal or in a PCRA appeal. Because he did not, the cognizable claims he has asserted in the Petition are procedurally defaulted. Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000); Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). See also Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012) (“Procedural default occurs when a claim has not been fairly presented to the state courts (i.e., is unexhausted) and there are not additional state remedies available to pursue[.]”)
The doctrine of procedural default, like the doctrine of exhaustion, is “grounded in concerns of comity and federalism,” Coleman, 501 U.S. at 730. As the Supreme Court recently explained:
State prisoners . . . often fail to raise their federal claims in compliance with state procedures, or even raise those claims in state court at all. If a state court would dismiss these claims for their procedural failures, such claims are technically exhausted because, in the habeas context, “state-court remedies are. . . ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). But to allow a state prisoner simply to ignore state procedure on the way to federal court would defeat the evident goal of the exhaustion rule. See Coleman, 501 U.S. at 732, 111 S.Ct. 2546. Thus, federal habeas courts must apply “an important ‘corollary' to the exhaustion requirement”: the doctrine of procedural default. Davila [v. Davis], 582 U.S., at -, 137 S.Ct. [2058], 2064 [2017]. Under that doctrine, federal courts generally decline to hear any federal claim that was not presented to the state courts “consistent with [the State's] own procedural rules.” Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).
Together, exhaustion and procedural default promote federal-state comity. Exhaustion affords States “an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights,” Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (per curiam), and procedural default protects against “the significant harm to the States that results from the failure of federal courts to
respect” state procedural rules, Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Ultimately, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without [giving] an opportunity to the state courts to correct a constitutional violation,” Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L .Ed. 761 (1950), and to do so consistent with their own procedures, see Edwards, 529 U.S. at 452-453, 120 S.Ct. 1587.Shinn v. Ramirez, No. 20-1009, - S.Ct. -, 2022 WL 1611786, at *7 (May 23, 2022).
When a claim is procedurally defaulted a petitioner can overcome the default if he shows “cause for the default and actual prejudice as a result of the alleged violation of federal law[.]” Coleman, 501 U.S. at 750. “‘Cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him[.]” Id. at 753 (emphasis in original). A petitioner may also avoid the default of a claim by showing that the federal habeas court's failure to consider it will result in a fundamental miscarriage of justice. See, e.g., Lines, 208 F.3d at 160. This type of “gateway” actual innocence claim requires newly presented evidence of “actual innocence” that is “so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error[.]” Schlup v. Delo, 513 U.S. 298, 316 (1995); see also McQuiggin v. Perkins, 569 U.S. 383 (2013); House v. Bell, 547 U.S. 518 (2006); Reeves v. Fayette, SCI, 897 F.3d 154, 157 (3d Cir. 2018).
C. Standard of Review
In 1996, Congress made important amendments to the federal habeas statutes with the enactment of the AEDPA. Among other things, 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) (citing Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). It reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotations and citation omitted).
AEDPA also put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d). It applies to any federal habeas claim “that was adjudicated on the merits” by the Superior Court and it prohibits a federal habeas court from granting relief unless the petitioner established that the Superior Court's “adjudication of the claim”:
When applying § 2254(d), the federal habeas court considers the “last reasoned decision” of the state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Sup't Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016).
(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, or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
A finding of fact made by a state court has always been afforded considerable deference in a federal habeas proceeding. AEDPA continued that deference and mandates that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). A petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.
If the Superior Court did not adjudicate a federal habeas claim on the merits, the Court must determine whether the absence of an adjudication is because Petitioner did not raise the claim to the Superior Court and, as a result, it is now procedurally defaulted. If the claim is procedurally defaulted, the Court should deny if for that reason. If the claim is not defaulted, or if Petitioner established grounds to excuse his default, the standard of review at § 2254(d) does not apply and the Court reviews the claim de novo. See, e.g., Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
D. Petitioner's Claims
Claim 1
Petitioner asserts in Claim 1 that unidentified “government officials” gave him improper instructions about his right to appeal. (ECF 4 at 5.) The facts Petitioner list in support of this claim show that the nature of his complaint is that after the trial court granted his amended PCRA petition and reinstated his right to file post-sentencing motions, the “higher court,” meaning the Superior Court or the Pennsylvania Supreme Court, denied his claims “without a hearing” at which he “may have proven” his innocence. (Id.)
The Court should deny Claim 1 because it does not state a cognizable claim for habeas relief. That is, it does not allege a violation of any federal constitutional right. The trial court granted Petitioner's amended PCRA petition and reinstated his right to file a post-sentence motion and direct appeal. Petitioner complains that the state appellate courts later denied his claims without a hearing, but he had no federal constitutional right (or a right under state law, for that matter) to a hearing when he was litigating his claims in a post-sentence motion or on appeal.
To the extent that Petitioner is challenging the Superior Court's adjudication of the two claims that Petitioner raised on appeal, those challenges are discussed below.
If Petitioner is also raising a freestanding claim that he is actually innocent, the Court must deny that claim as well. In some habeas cases, a state prisoner asserts in a § 2254 petition that “new” evidence (that is, evidence that was not presented at trial) proves that he is factually innocent. Petitioner proffers no such evidence. In any event, “[i]t has long been recognized that ‘[c]laims of actual innocence based on only newly discovered evidence' are never grounds for ‘federal habeas relief absent an independent constitutional violation.'” Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004) (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)); Albrecht v. Horn, 485 F.3d 103, 121-22 (3d Cir. 2007). There is no allegation of an independent constitutional violation in Claim 1.
In Herrera, the Supreme Court left open the possibility that “in a capital case a truly persuasive demonstration of ‘actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there was no state avenue open to process such a claim.” 506 U.S. at 417. The Court of Appeals has acknowledged that the Supreme Court has yet to definitely resolve the issue of whether a freestanding claim of actual innocence asserted by a non-capital petitioner is cognizable under § 2254. Reeves, 897 F.3d at 160 n.4. The Court of Appeals has further explained that to the extent freestanding actual innocence claims are cognizable, they must be assessed under a very demanding standard “since the petitioner's [freestanding] claim is that his conviction is constitutionally impermissible ‘even if his conviction was the product of a fair trial[.]'” Id. (quoting Schlup, 513 U.S. at 316 and citing House, 547 U.S. at 555). In any event, if indeed a freestanding claim of actual innocence could be brought in a noncapital federal habeas case such as this one, there is no evidence that would entitle Petitioner to habeas relief on such a claim.
Based on the above, it is recommended that the Court deny Claim 1 because it does not raise a claim cognizable under § 2254(a).
Claim 2
In Claim 2, Petitioner contends:
I... was denied due process of law under the Fourteenth Amendment to the U.S. Constitution when the trial court allowed this video to [sic] the jury. The weight of the evidence I put in question, due to the amount of circumstantial and lacking of [sic] evidence that was shown at trial. The prosecution was allowed by [the trial court] to show the video of A.W. with the forensic expert. This video went toward the charge of Agg. Assault (which was thrown out) and should not have been seen by the jury.”(ECF 4 at 7.)
The Commonwealth originally charged Petitioner with the crime of Aggravated Indecent Assault in violation of 18 Pa. Cons. Stat. § 3125(a)(7). It later withdrew that charge after A.W. testified at the preliminary hearing that Petitioner did not digitally penetrate her. (See Trial Tr., 4/21/16, at 4.)
Petitioner asserts that this is the same claim that the Superior Court denied on appeal. (Id.) If that is the case, then he is claiming that the jury's verdict was against the weight of the evidence.
The Court has no authority to review the Superior Court's decision or grant Petitioner relief on a weight-of-the-evidence claim because it is purely a state law claim that is not cognizable under § 2254(a). See Tibbs v. Florida, 457 U.S. 31, 37-45 (1982) (weight of evidence claims raise questions of credibility; it is different from a claim that the evidence was insufficient to support the conviction); see, e.g., McKinnon v. Sup't, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 75 (2d Cir. 2011) (“the argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus[.]”); Stephenson v. Gilmore, No. 2:18-cv-1329, 2021 WL 3667904, at *14 (W.D. Pa. Feb. 23, 2021), report and recommendation adopted, 2021 WL 2882441 (W.D. Pa. July 9, 2021).
It may be that Petitioner is also asserting in Claim 2 that the prosecution introduced insufficient evidence to support the jury's verdict. In contrast to a weight-of-the-evidence claim, a claim that there was insufficient evidence to support the jury's verdict implicates a petitioner's due process rights and thus is cognizable in a federal habeas case. See, e.g., Travillion v. Sup't Rockview SCI, 982 F.3d 896, 902 (3d Cir. 2020) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). Petitioner may also be claiming that the trial court erred when it permitted the prosecution to introduce A.W.'s forensic interview over the defense's objection. (See Trial Tr., 4/26/16, at 4-5.) If in fact Petitioner is asserting these two claims in Claim 2, the Court should deny them as procedurally defaulted because he did not raise them in his appeal to the Superior Court and there are no grounds to excuse his default. (See Br. for Appellant in Commonwealth v. Coats, No. 1506 WDA 2017 (Pa. Super. Ct. Feb. 27, 2018), Resp's Ex. 38 at 211-59). Additionally, the assertion that the trial court erred when it allowed the Commonwealth to introduce A.W.'s forensic interview raises only an issue of state law (that is, whether the interview was admissible under the Pennsylvania Rules of Evidence). Thus, that claim is not cognizable in federal habeas corpus under § 2254(a) and should be denied for that reason as well.
Because A.W. testified at the trial, Petitioner cannot assert that the admission of the video of her forensic interview violated his rights under the Confrontation Clause.
In conclusion, it is recommended that the Court deny Claim 2 because it does not raise a claim cognizable under § 2254(a). If Petitioner is asserting a claim of federal constitutional error in Claim 2, it is procedurally defaulted because Petitioner did not raise it to the Superior Court.
Claim 3
In Claim 3 Petitioner asserts his Sixth Amendment right to effective counsel was violated because trial counsel “failed to present my case” and did not subpoena Sharon Bass to testify as a defense witness. (ECF 4 at 8.) As Respondents point out in the Answer, after Petitioner's reinstated direct appeal concluded, he could have filed another PCRA petition and litigated his claims of trial counsel's ineffectiveness in state court. (ECF 11 at 20.) Because Petitioner did not do so, and the time for him to file another PCRA petition within the applicable one-year statute of limitations has expired, 42 Pa. Cons. Stat. § 9545(b), Petitioner procedurally defaulted his claims of trial counsel's ineffectiveness. Once again, Petitioner does not contend that there are any grounds to exhaust the procedural default of any of the claims asserted in the Petition.
Under Pennsylvania law, a defendant typically may not litigate ineffective assistance of trial counsel claims on direct appeal. Such claims must be raised in a PCRA proceeding. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (abrogated in part on other grounds by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021)).
Moreover, Petitioner's assertion that trial counsel “failed to present my case” is too vague and boilerplate to state a claim for federal habeas relief. Although pro se filings must be construed liberally and with a measure of tolerance, Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts requires that a habeas petition must “specify all the grounds for relief available to the petitioner” and “state the facts supporting each ground.” Merely asserting legal conclusions does not fulfill the requirements of Rule 2(c). Mayle v. Felix, 545 U.S. 644, 649 (2005). Broad, general allegations that trial counsel was unprepared, failed to consult the petitioner or sufficiently subject the prosecution's case to adversarial testing lack the required specificity to raise a valid habeas claim. Id. at 656. As for Petitioner's assertion that trial counsel should have subpoenaed Sharon Bass, the Court notes that at trial the prosecutor informed the jury that the Commonwealth was not going to present testimony from Bass because “[s]he was asleep and not in the room when these incidents [the criminal acts charged] occurred. So she doesn't have any valuable information to give to you.” (Trial Tr., 4/21/16, at 26.) Petitioner fails to describe what testimony Bass could have provided to assist his defense.
Finally, Petitioner also asserts in Claim 3 that his lifetime registration requirement amounts to an “illegal sentence” because it allegedly exceeded the statutory maximum for his crimes. (ECF 4 at 8.) When Petitioner raised this claim to the Superior Court, he argued:
The maximum sentences for [each of the crimes for which he was convicted] was 3 ½ to 7 years' imprisonment. None of these convictions could be given a life sentence upon conviction. However, [Petitioner] received SORNA registration (an additional punishment) for his lifetime pursuant to 42 Pa. C. S. § 9799.14(b), (c), (d), and § 9799.15.
A sentence is deemed illegal when it is greater than the lawful maximum sentence that could be given for that offense. Now that the consequences pursuant to SORNA are deemed “punishment” under [Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)], the lifetime registration requirement imposes a lifetime sentence, which is greater than the lawful maximum for [Petitioner's] offenses. The registration requirement must be limited to, at most, the lawful maximum for the convictions. [Petitioner] argues that the registration requirement in his case should be limited to the length of the sentence imposed, or 7 years. This would correct the illegal sentence and be in accord with the Muniz definition of “punishment.” (Br. for Appellant in Commonwealth v. Coats, No. 1506 WDA 2017, Resp's Ex. 38 at 256-57.)
The Superior Court denied this claim on the merits for the same reasons given in Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. Ct. 2018). (Coates, No. 1506 WDA 2017, slip op at 9, Resp's Ex. 38 at 328-29.) In Strafford, the Superior Court held:
Our Supreme Court has explained the well-settled principle that the General Assembly “has the exclusive power to pronounce which acts are crimes, to define crimes, and to fix the punishment for all crimes. The legislature also has the sole power to classify crimes[.]” Commonwealth v. Eisenberg, 626 Pa. 512, 98 A.3d 1268, 1283 (2014) (citation and quotation omitted).
Our General Assembly has authorized courts to impose specific punishments when fashioning a sentence, and specified maximum terms and
amounts of those punishments. These categories of punishment include (1) partial or total confinement, (2) probation, (3) state or county intermediate punishment, (4) a determination of guilt without further penalty, and (5) a fine. 42 Pa.C.S. § 9721.
With respect to the punishment of incarceration, 18 Pa.C.S. § 1103 governs the maximum authorized sentence of imprisonment for felony convictions. By a separate statute, these maximum allowable terms also apply to probationary sentences, a different category of punishment authorized by the General Assembly. In 42 Pa.C.S. § 9754(a), the legislature directed that “[i]n imposing an order of probation the court shall specify at the time of sentencing the length of any term during which the defendant is to be supervised, which term may not exceed the maximum term for which the defendant could be confined, and the authority that shall conduct the supervision.” Id. (emphasis added). Thus, the legislature explicitly connected the authorized punishments of incarceration and probation by statute.
However, most sentencing alternatives are not tied to the maximum authorized term of incarceration. For example, the legislature has authorized courts to include in sentences the requirement that a defendant pay a fine or restitution. These categories of punishment are not limited by the maximum period of incarceration; rather, the legislature set different maximum authorized amounts of punishment a court may impose as part of its sentence. See, e.g., 18 Pa.C.S. § 1101 (defining maximum fines); 18 Pa.C.S. § 1106 (providing statutory scheme for restitution for injuries to person or property).
In SORNA the legislature authorized courts to include periods of registration as part of a sentence. Similar to the treatment of the payment of fines or restitution, the legislature did not tie the period of registration to the length of incarceration. See 42 Pa.C.S. § 9799.14 (“Sexual offenses and tier system”); 42 Pa.C.S. § 9799.15 (“Period of registration”). SORNA's registration provisions are not constrained by Section 1103. Rather, SORNA's registration requirements are an authorized punitive measure separate and apart from [the petitioner's] term of incarceration. The legislature did not limit the authority of a court to impose registration requirements only within the maximum allowable term of incarceration; in fact, the legislature mandated the opposite and required courts to impose registration requirements in excess of the maximum allowable term of incarceration.
Accordingly, we conclude that [the petitioner's] lifetime registration requirement authorized by SORNA does not constitute an illegal sentence. [Petitioner] is not entitled to relief.Strafford, 194 A.3d at 172-73.
Respondents argue that Petitioner's claim that the lifetime registration requirement rendered his sentence illegal is not cognizable under § 2254(a) because it does not state a violation of his rights under the federal constitution. They are correct. Sentencing is a matter of state criminal procedure that seldom falls within the purview of federal habeas review. See, e.g., Chapman v. United States, 500 U.S. 453, 465 (1991); Wooten v. Bomar, 361 U.S. 888 (1959); Jones v. Sup't of Rahway State Prison, 725 F.2d 40, 42-43 (3d Cir. 1984). Thus, a federal court normally will not review a state sentencing determination that falls within the statutory limit, Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984), as the severity of a sentence alone does not provide a basis for habeas relief. Smith v. Wainwright, 664 F.2d 1194, 1196 (11th Cir. 1981) (holding that a sentence imposed within the statutory limits cannot be attacked in habeas proceeding).
Most federal habeas courts deny a challenge to lifetime registration as noncognizable under § 2254(a) for a different reason: the petitioner is not challenging the lawfulness of his “custody.” For example, in Munoz v. Smith, 17 F.4th 1237 (9th Cir. 2021), a sex offender convicted in Nevada filed a habeas petition challenging the lifetime supervision which consisted of a $30 monthly fee, electronic monitoring, and a requirement that he may reside at a residence only upon approval of his parole officer. 17 F.4th at 1238-39. The United States Court of Appeals for the Ninth Circuit held “these conditions do not severely and immediately restrain the petitioner's physical liberty. Petitioner is therefore not challenging his ‘custody,' and his claims are not cognizable in federal habeas.” Id. at 1239; id. at 1241 (a habeas petitioner cannot challenge the non-custodial portion of a criminal sentence). In contrast, in Piasecki v. Court of Common Pleas, Bucks County, 917 F.3d 161 (3d Cir. 2019), the Court of Appeals for the Third Circuit held that the combined effect of the much more burdensome conditions imposed on the petitioner in that case, who was a Pennsylvania prisoner, was sufficiently severe to amount to custody.
A sentence violates the Eighth Amendment only when it is extreme and “grossly disproportionate to the crime.” Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring) (“The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.”) (citation omitted). If Petitioner is raising an Eighth Amendment claim (and he does not specifically state that he is), it is procedurally defaulted because he did not raise it to the Superior Court when he argued to it that his sentence was illegal and there are no grounds to excuse his default of such a claim.
Here, the Superior Court explained that Pennsylvania law required that Petitioner's trial court impose the challenged registration requirement and that that requirement was not violative of state law. (Coates, No. 1506 WDA 2017, slip op at 9, Resp's Ex. 38 at 329.) This Court has no authority to reevaluate its decision in that regard. See, e.g., Priester, 382 F.3d at 402 (“Federal courts reviewing habeas claims cannot ‘reexamine state court determinations on state-law questions.'”) (quoting Estelle, 502 U.S. at 67-68). Thus, because the Superior Court held that the trial court did not impose a punishment greater than what was permitted under Pennsylvania law, the lifetime registration requirement does not implicate Petitioner's rights under the federal constitution.
Therefore, it is recommended that the Court deny Claim 3 because he procedurally defaulted his claims of trial counsel's ineffectiveness and his challenge to the lifetime registration requirement is not cognizable under § 2254(a).
E. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from.. .the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue...only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
“When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying those standards here, jurists of reason would not find it debatable whether each of Petitioner's claims should be denied for the reasons given herein. Accordingly, the Court should not issue a certificate of appealability on any of Petitioner's grounds for relief.
IV. CONCLUSION
Based on the foregoing, it is respectfully recommended that the Court deny each claim raised in the Petition and deny a certificate of appealability as to each claim. 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, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017); Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).