Opinion
Civil Action No. 01-1997.
March 29, 2004
MEMORANDUM
I. Introduction
On April 23, 2001, Petitioner Robert L. Graham, pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging his actual innocence and multiple violations of his constitutional rights. The court appointed counsel to assist petitioner, who is mentally deficient, with his claims. On October 31, 2002, the court found that petitioner's mental incompetency affected his ability to file a timely habeas petition, and equitably tolled the applicable statute of limitations, under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Graham v. Kyler, No. 01-1997, 2002 WL 32149019 (E.D.Pa. Oct. 31, 2002). Thereafter, petitioner submitted his first amended petition for habeas corpus. The Commonwealth of Pennsylvania ("respondent" or "the Commonwealth") argues that petitioner's claims are procedurally defaulted because he failed to properly pursue them in the state system. On August 21, 2003, the court held a hearing to determine whether petitioner's claims are procedurally defaulted, and if so, whether such default may be excused, and the court may reach the merits of petitioner's claims. Upon review of the record, the court finds that each of petitioner's claims has been procedurally defaulted and that he is not entitled to a full review of his petition on the merits. Even if the court could reach the merits of his claims, it would be bound by the state's prior factual findings regarding the petitioner's mental competency, and would be required to deny the petition.
II. Procedural History
Petitioner pled guilty on May 23, 1977 in the Court of Common Pleas of Philadelphia County to five counts of burglary, two counts of robbery, and one count of rape; all part of a crime spree that took place between February 22, 1977 and February 25, 1977. On July 27, 1977, he was sentenced by Judge Alfred J. DiBona to not less than ten nor more than twenty years on each of six of those charges. He received a suspended sentence on two of the burglary counts. On motion by the district attorney, the remaining twenty charges against petitioner were nolle prossed. Petitioner filed a notice of appeal. On October 13, 1978, the Superior Court rendered a judgment of non pros pursuant to the lower court's ruling that appeal was improper since petitioner had not first sought leave of court to withdraw his guilty plea.
On May 25, 1979, petitioner filed his first pro se petition for collateral relief under the Pennsylvania Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S.A. § 9541, et seq. (repealed). (Pet. Ex. 46.) He alleged that he was eligible for relief under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution because: 1) his confession was coerced; 2) his confession was taken in the absence of counsel; 3) his right against self-incrimination was infringed; 4) his right to competent counsel was denied; 5) his guilty plea was unlawfully induced; 6) his appeal rights were obstructed by the state; 7) his constitutional rights were otherwise abridged; and 8) new exculpatory evidence was available. Petitioner specifically raised the issues of his mental health history and counsel's failure to request a psychiatric evaluation. On August 9, 1982, appointed counsel filed an amended PCHA petition, alleging only ineffective assistance of counsel and general constitutional violations of petitioner's trial rights. On November 8, 1982, Judge Edward J. Blake held an evidentiary hearing on the petition, during which petitioner had the opportunity to testify. He found that petitioner's guilty plea had been knowingly and voluntarily entered, but reinstated his direct appeal rights nunc pro tunc. Petitioner did not file an appeal.
Petitioner filed a second pro se PCHA petition on May 8, 1984. He alleged multiple violations of his constitutional rights, including, ineffective assistance of counsel, imposition of an unlawful sentence, denial of due process, and equal protection violations. Judge Blake again reinstated his appeal rights nunc pro tunc. Petitioner filed an appeal. It was dismissed without prejudice on October 8, 1985 because petitioner's counsel failed to provide either a McClendon notice or to file an appellate brief. Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
Petitioner filed a third PCHA petition. His appeal rights were again reinstated nunc pro tunc on June 19, 1986 by the Honorable Joseph O'Keefe. Petitioner filed an appeal. Appointed counsel filed an Anders brief pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Thereafter, the Superior Court addressed the following: 1) whether petitioner was placed in double jeopardy by virtue of pleading guilty to one count of Burglary while having the remaining counts of Theft and Receiving Stolen Property nolle prossed; 2) whether petitioner was entitled to have some of the counts against him dismissed because of an untimely preliminary hearing; 3) whether the Court of Common Pleas had jurisdiction of petitioner's criminal case; 4) whether the sentence imposed was illegal; and 5) whether petitioner's guilty plea was knowing and intelligent. See Commonwealth v. Graham, No. 2022, mem. op. at 2 ( Pa. Super. 1986). The Superior Court found that petitioner's guilty plea was voluntary and affirmed the judgment of sentence. Commonwealth v. Graham, 525 A.2d 815 (Pa.Super. 1987). Petitioner did not seek allocatur to the Pennsylvania Supreme Court. Thus, his conviction became final on May 25, 1987, after the 30-day period to petition the Pennsylvania Supreme Court had expired.
On April 23, 2001, petitioner filed the present federal habeas petition, pro se. Counsel was appointed on January 25, 2002. After this court found that equitable tolling of the statute of limitations was appropriate, petitioner filed an amended petition on March 25, 2003, alleging multiple violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. He advances the following grounds for relief: 1) actual innocence; 2) coerced confession; 3) violation of due process and access to counsel; 4) ineffective assistance of counsel; 5) mentally challenged status; 6) improper identification; 7) cruel and unusual punishment; and 8) judicial bias.
On May 1, 2001, petitioner filed his fourth petition in state court, pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. His state claims paralleled those in his federal petition. State appointed counsel submitted a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 ( Pa. Super. 1988), stating that the petition was not timely filed. On that basis, the petition was subsequently denied by the Superior Court.
III. Discussion
A. Exhaustion and Procedural Default
Before a state prisoner may obtain federal review of the merits of his habeas corpus petition, he must first exhaust the remedies available in the state court system. 28 U.S.C. § 2254 (b). This requirement serves the interests of federalism and comity by ensuring that where a state prisoner alleges that his conviction or confinement violates federal law state courts have the first opportunity to review the claim and provide any appropriate relief. See, e.g., Rose v. Lundy, 455 U.S. 509, 515 (1982). Thus, before a prisoner can present his claims to a federal court, he must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's appellate review process."O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A petitioner has failed to exhaust his claims if he "has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). However, a failure to exhaust in the state courts will be treated as "excused" on the basis of futility if "it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law." Grey v. Netherland, 518 U.S. 152, 161 (1996) (quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)); Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001).
However, when further state court review is foreclosed by state procedural law, a petitioner's claims are treated as procedurally defaulted. Such claims may only be heard on the merits by a federal court if there is a basis for excusing the procedural default. Thus, a federal court is prevented from entertaining a procedurally defaulted claim unless the petitioner can demonstrate: 1) "cause for the default and actual prejudice as a result of the alleged violation of federal law", or 2) that "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Taylor, 501 U.S. 722, 750 (1990). The existence of cause for procedural default generally turns upon whether the petitioner can show that some "objective factor external to the defense" impeded a petitioner's, or counsel's, attempt to comply with the state's procedural rule.Murray v. Carrier, 477 U.S. 478, 488 (1986). Cause may exist where the "factual or legal basis for a claim was not reasonably available to counsel" or where "some interference by officials made compliance impracticable." Id. (internal citations omitted). Ineffective assistance of counsel may constitute cause, but only under limited circumstances. Id. at 488-89; Edwards v. Carpenter, 529 U.S. 446, 451-53 (2000). Even if a petitioner establishes cause for the procedural default of his claims, he must still demonstrate that he experienced "actual prejudice," such that the error in the proceedings "worked to his actual and substantial disadvantage" and was of "constitutional dimensions."United States v. Frady, 456 U.S. 152, 170 (1982). Further, the "fundamental miscarriage of justice" exception to procedural default has been narrowly interpreted to apply only "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496.
Petitioner has repeatedly sought to use the state court appeal and post-collateral relief processes for a wide variety of claims over the past twenty-six years. He never presented any of his claims, including those in his current amended federal petition, to the Pennsylvania Supreme Court in any form. Petitioner's opportunity for direct review terminated on May 25, 1987 upon the expiration of the thirty-day period to petition for allocatur to the Pennsylvania Supreme Court from the Superior Court's adverse ruling. See Pa.R.A.P. 1113. Petitioner's claims were not preserved by the Pennsylvania Supreme Court's Order Number 218, issued on May 9, 2000, which provides for the exhaustion of a state prisoner's claims without the filing of a petition for discretionary review, because that Order is not retroactive and "does not apply in cases in which the time to petition for review by the state supreme court expired prior to the date of the order." Wenger v. Frank, 266 F.3d 218, 226 (3d Cir. 2001). Thus, petitioner has not exhausted his claims in the state court system.
As evidenced by the Pennsylvania Superior Court's response to his most recent state petition for post-collateral relief, the state can no longer entertain petitioner's claims because they are untimely. Under the Pennsylvania Post-Conviction Relief Act ("PCRA"), which replaced the Post-Conviction Hearing Act in 1996, any petition for collateral relief must be made within a year of the date that a conviction becomes final, unless it falls into one of the enumerated exceptions. See 42 Pa.C.S.A. § 9545(b)(1-4); Commonwealth v. Laird, 726 A.2d 346, 351 ( Pa. 1999) (the PCRA in effect at the time of the original filing of the petition governs the claims). This provision is jurisdictional. Commonwealth v. Peterkin, 722 A.2d 638, 641 (Pa. 1998). In finding petitioner's May 1, 2001 petition untimely, the state court found that his claims did not fall into one of the exceptions. Therefore, petitioner's claims are procedurally defaulted and cannot be reviewed by this court in the absence of cause and prejudice, or a showing that failure to review the claims would result in a fundamental miscarriage of justice.
Petitioner argues, generally, that any procedural default of his claims should be excused because of his mental deficiency. The third circuit has found that mental deficiency, even where accompanied by illiteracy, does not constitute "cause" for procedural default. Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993) (finding mental retardation and illiteracy is not "external" to the defense, within the meaning of Murray v. Carrier, 477 U.S. 478 (1986)). Other circuits that have addressed this issue in detail have similarly set a high standard for when mental illness establishes "cause." Cawly v. DeTella, 71 F.3d 961, 696 (7th Cir. 1995) (finding petitioner's depression is not sufficient because it is not an external impediment);Ervin v. Delo, 194 F.3d 908, 915 (8th Cir. 1999) (holding mental illness may be cause for default where petitioner makes conclusive showing that he was suffering from a mental disease, disorder, or defect that may substantially affect his capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation." (citations omitted)); Holt v. Bowersox, 191F.3d 970 (8th Cir. 1999) (requiring determination of whether petitioner's highly symptomatic schizoaffective disorder prevented him from making rational decisions during period for postcollateral review); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1998) (finding diagnosis as "borderline mental defective" did not establish cause); Smith v. Newsome, 876 F.2d 1461, 1465 (11th Cir. 1989) (suggesting petitioner would have to establish that he "lacked the mental capacity to understand the nature and object of habeas proceedings" to establish cause for procedural default of state claim). Thus, petitioner's mental status, even coupled with his unfortunate functional illiteracy, does not constitute "cause" for the procedural default of his claims.
Contrary to petitioner's assertions, the court's prior finding that the statute of limitations should be equitably tolled because of petitioner's mental deficiency does not compel a finding that the procedural default of his claims should be excused. Although the court reviewed petitioner's entire personal and mental health history in reaching its decision on the issue of equitable tolling, its conclusions regarding competency applied only to the period between April 1996 and April 1997, when the petition could have been timely filed. Graham v. Kyler, No. 01-1997, 2002 WL 32149019, *10 (E.D.Pa. October 31, 2002). The court's decision regarding equitable tolling only ensured that the court would have jurisdiction to reach the next stage of the proceedings — the determination of whether the individual claims had been procedurally defaulted.
Even assuming that the court could excuse petitioner's procedural default and reach the merits of his individual claims, each of his allegations would be deemed legally frivolous.
B. Petitioner's Claims
Before turning to petitioner's individual claims, it is important to emphasize that this court is bound by the state courts' previous factual findings regarding petitioner's mental competency. Under Maggio v. Fulford, 462 U.S. 111 (1983), federal courts reviewing habeas petitions are obligated to defer to state court determinations of mental competency. Id. at 116-18. Moreover, under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court may not overturn a state court's resolution of any claim that was adjudicated on the merits in a state court unless that adjudication "(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)(1)-(2). Contemporaneous with Mr. Graham's guilty plea, Judge DiBona found petitioner was mentally competent. After an extensive colloquy, he accepted the plea as knowing and voluntary. Upon reviewing this plea and after an evidentiary hearing on the issue, Judge Blake also found that petitioner had freely and intelligently entered his guilty plea and that it "was not affected by any psychiatric condition that existed at that time." (N. Tr. PCHA Hearing 11/8/82 at 16.) On appeal, the Superior Court explicitly found that the guilty plea colloquy revealed the voluntariness of Mr. Graham's plea.Commonwealth v. Graham, No. 2022, mem. op. at 2 ( Pa. Super. 1986). Therefore, under law, this court cannot now say that these state court determinations were wrong.
1. Actual Innocence
Petitioner's first claim is that he is actually innocent of the charges to which he pled guilty, because he alleges that he was in police custody at the time the crimes were committed. Specifically, he claims that he was arrested on February 18, 1977 and remained in police custody until February 26, 1977, when he was charged with a laundry list of offenses for crimes that allegedly occurred between February 22 and 25. In support of this allegation, he suggests that police intake records from the 8th and Race Street Police Headquarters would prove his custodial status, and asserts that records exist that establish that he was arraigned before a magistrate judge on February 19, 1977. He also claims that he made a telephone call to his family from 8th and Race Street on February 23, 1977. Extensive attempts by both parties to locate such records have been futile. (See Docket # 63.)
Additionally, petitioner attempts to support his claim of innocence by arguing that there was no physical evidence that implicated him in any of the crimes. He argues that the Commonwealth never produced fingerprint or any other tangible evidence to show that he was at any of the crime scenes. He also contends that a D.N.A. test of the victim's rape kit would establish his innocence. The hospital where the victim was supposedly taken does not now have any record of a rape kit. (See Docket # 91.)
Petitioner never specifically raised these allegations in the state courts, and therefore they are procedurally defaulted. Although a prisoner's actual innocence may be grounds for excusing procedural default, even in the absence of cause and prejudice, petitioner has not met this standard. Murray v. Carrier, 477 U.S. 478, 496 (1986); Calderon v. Thompson 523 U.S. 538, 559 (1998). In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court narrowly interpreted the "miscarriage of justice" exception to procedural default, finding it applicable only where the petitioner offers "new evidence" that he is "actually innocent" of the crime, such that "a court cannot have confidence in the outcome of the trial." Id. at 316. "New evidence" may include "exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence."Id. at 324. Petitioner, despite the court's indulgence of his discovery requests, has not offered any new evidence to suggest that he is innocent of the underlying crimes.
Even if petitioner could conclusively establish his innocence, the Supreme Court has held that claims of actual innocence, based on newly discovered evidence, do not "state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993). The role of a federal habeas court is "to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact."Id.
The evidence of petitioner's guilt, on all counts, is overwhelming. Petitioner was arrested by the Philadelphia police as he was attempting to break into an apartment building in the same area where, and in the same manner as, his other crimes were committed. Officer John Russell testified at petitioner's preliminary hearing that he arrested Mr. Graham on February 25, 1977, after he observed him ringing all of the door bells at 322 So. 11th Street, and trying to force open the front door with his shoulder. (N. Tr. Prelim. Hr'g 3/7/77, 10-12.) Upon pat down, the police recovered a .22 caliber pistol. The evidence offered at the preliminary hearings also shows that on February 22, 1977, petitioner burglarized two apartments at 1208 Lantern Way, after kicking in their doors. (N. Tr. Prelim. Hr'g 3/7/77 23-24.) He subsequently robbed a man at 332 South Juniper Street, and committed a rape at 2134 Pine Street, after knocking in an apartment door. (N. Tr. Prelim. Hr'g 4/4/77 at 5 and 3/16/77 at 3.) The next day, petitioner went to 414 So. 15th Street, pushed the front door in with his shoulder, and proceeded to knock down the doors of the first and second floor apartments. (N. Tr. Prelim. Hr'g 3/7/77 at 22.) On February 24, 1977, petitioner broke into an apartment house at 1011 Spruce Street, again by "hunching" down the front door. He then proceeded to enter six apartments by kicking in their doors. (N. Tr. Prelim. Hr'g 3/7/77, 24-25.)
Petitioner was identified by several of his victims. Each had the opportunity to clearly observe him in the midst of the crime. The rape victim unequivocally identified Mr. Graham as her assailant during the preliminary hearing on that charge. (N. Tr. Prelim. Hr'g 3/16/77 at 3.) Petitioner's current claim that she identified him because he was the only African-American man in the courtroom is unavailing. Although she was blindfolded during the rape, she testified that before the blindfolding she had ample time to observe petitioner. She looked at him from the time when he broke into her apartment, pointed the handgun at her, and demanded that she give him her money. Further, after she removed the blindfold, she had a physical confrontation with him. A composite drawing was made from her recollection. (N. Tr. Prelim. Hr'g 3/16/77 at 15.)
Similarly, descriptions by the other criminal complainants who saw petitioner during his crime spree are entirely consistent with what petitioner confessed he did. One of the robbery victims only tentatively identified Mr. Graham as the person who accosted him in his apartment at 332 South Juniper Street on February 22, 1977. (N. Tr. Prelim. Hr'g 4/4/77 at 5.) However, he clearly remembered that his assailant was carrying a suit bag, a distinctive identification detail also mentioned by the rape victim. (N.Tr. Prelim. Hr'g 4/4/77, 7-8 and N. Tr. Prelim. Hr'g 3/16/77, 5-6.) This is consistent with the other criminal complaints, as well as petitioner's confession. (N. Tr. Prelim. Hr'g 3/7/77 at 23.) Another robbery victim indicated that she encountered her assailant as she entered her apartment, in the same manner as petitioner admits he threatened her. (N. Tr. Prelim. Hr'g 4/4/77, 3-4 and 16.) Discrepancy between the robbery victim's recollection of a hammer, and petitioner's admission that he used a gun, is not dispositive of a claim of improper identification because the instruments of crime could be easily mistaken in emotional circumstances. While this victim was not asked during her direct testimony to specifically identify petitioner in the courtroom she observed a line-up earlier and did not disagree when defense counsel referred to the defendant as her assailant. (N. Tr. Prelim. Hr'g 4/4/77 at 10 and 14.) It is sufficient to conclude, as the court does here, the independent evidence of modus operandi of the apartment break-ins all fit with what petitioner told the police that he did.
Despite his current claims of duress, petitioner confessed to the crimes charged. He provided lengthy factual detail of his actions and pled guilty in open court with the assistance of counsel. (See, e.g. N. Tr. 5/23/77, 33-35.) Petitioner's confession was totally consistent with the physical evidence and the testimony offered at his preliminary hearings. Likewise, both petitioner's pre-sentence report and client interview records document his confession and acceptance of responsibility. (See Pet. Ex. 18; Def. Response to Petition and Amended Petition for Writ of Habeas Corpus, Ex. A.)
2. Coerced Confession
Petitioner also now claims that his confession was coerced by Philadelphia police officers. He claims that after his arrest he was stripped and placed in a black cell. He alleges that, "officers put a phone book on [his] head and repeatedly beat it with slap jacks until [he] signed a confession admitting to committing the crimes that happened after [he] was in custody." See Petition for Writ of Habeas Corpus (Doc. # 1). However, petitioner never substantively brought this claim before the state courts. In his first pro se PCHA petition, he checked the box next to "the introduction of a coerced confession into evidence," on the state-provided form. (Pet. Ex. 46.) Although he alleged that his statement was "obtained by mental suppression and suggestion," he failed to provide any further factual allegations of coercion. (Id. at 3.) Subsequently-appointed counsel did not pursue, or even raise, this claim, and it was not pursued on appeal. (Pet. Ex. 46.) Because petitioner did not exhaust his coerced confession claim in state court, it is now procedurally defaulted.
Even were the court permitted to consider the merits of petitioner's claims, petitioner has offered no evidence that his confession is the result of physical coercion by the police. This court cannot accept as truth allegations that have absolutely no evidentiary support. Nothing in the record even hints that petitioner was the victim of any kind of police coercion after his arrest that resulted in his confession before his guilty plea.
The court has observed that petitioner may be open to external suggestion, however, based upon the record, the court cannot credit his current allegations of mental coercion during the confession. The interrogating officer testified that he administered the required Miranda warnings to the petitioner, and that the petitioner waived his rights prior to signing the confession. (N. Tr. Prelim. Hr'g 3/7/77, 18-20; N. Tr. Prelim. Hr'g 4/4/77, 15-16.) Also, the notes from petitioner's client interview file show that he told the interviewer that there were "no threats, no promises" made by the police during his interrogation and confession. (Def. Response to Petition and Amended Petition for Writ of Habeas Corpus, Ex. A.) Further, petitioner had ample opportunity during his guilty plea colloquy to tell the court, if it was true, that he had been forced to confess to crimes he did not commit. This, he did not do. To the contrary, he explicitly informed the court that he had been notified of his rights, and that he had voluntarily detailed his recent criminal actions. (N. Tr. 5/23/77 at 34.) Furthermore, petitioner acknowledged, at that proceeding, that by pleading guilty he was waiving the opportunity to challenge the evidence against him, including his confession. (Id. at 20.)
It would appear that the record before the state court was solely that petitioner confessed to rape, multiple robberies, and the many burglaries, not because he was coerced by the police, but because he had, in fact, committed them.
3. Due Process
Petitioner's third claim is that he was denied access to counsel for the first seventeen (17) days that he was in custody. Citing his alleged February 18, 1977 arrest, he claims that he was unable to consult with counsel until his first preliminary hearing on March 7, 1977. In addition, petitioner alleges that his confession was a direct result of being interrogated without counsel present. Petitioner never explicitly brought these claims before the state courts. Although he checked the box next to "the introduction into evidence of a statement obtained in the absence of counsel at a time when representation is constitutionally required" on the state-provided form for his first pro se PCHA petition, he did not make any further allegations about being denied counsel during his interrogation or before his preliminary hearing. (Pet. Ex. 46.) No state court has had the opportunity to review petitioner's current claims, and therefore, they are procedurally defaulted.
Although petitioner brings these allegations as purported violations of his Sixth and Fourteenth Amendment rights, they are more appropriately interpreted under the Fifth Amendment, as incorporated against the states. The Sixth Amendment right to counsel does not attach until the commencement of "`adversary judicial criminal proceedings.'" U.S. v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)); Powell v. Alabama, 287 U.S. 45, 57 (1932). Petitioner's current claims relate solely to his custodial interrogation and the time that passed before his first preliminary hearing when he was officially charged with the burglary offenses. Therefore, he is alleging violations of his fifth amendment right to counsel. Miranda v. Arizona, 384 U.S. 436 (1966).
As previously stated, the court cannot credit Mr. Graham's claim that he was in custody prior to his arrest on February 25, 1977. Officer John Russell testified at his preliminary hearing that on that date Mr. Graham was arrested after he was observed attempting to burglarize an apartment building. (N. Tr. Prelim. Hr'g 3/7/77, 10-16.)
Petitioner was interviewed by the police after his arrest in the absence of counsel because he waived his right to have counsel present during the interrogation. There is nothing in the record that indicates that this waiver was not voluntary, or that petitioner did not knowingly and intelligently relinquish his rights. Edwards v. Arizona, 451 U.S. 477, 482 (1981) (citations omitted). Detective Kuhlmeir, who interrogated petitioner after his arrest, testified that he gave the required Miranda warnings. (N. Tr. Prelim. Hr'g 3/7/77, 18-20; N. Tr. Prelim. Hr'g 4/4/77, 15-16.) He recited petitioner's answers to the seven questions required by the 75 Misc. 3 card used by the Philadelphia Police Department to ensure that arrested persons were informed of their rights. (N. Tr. Prelim. Hr'g 3/7/77 at 19.) Likewise, during his guilty plea colloquy, petitioner acknowledged that he volunteered to make the statement without counsel present. (N. Tr. 5/23/77 at 34.)
4. Ineffective Assistance of Counsel
Petitioner alleges that his appointed counsel was deficient in multiple respects. First, petitioner claims that counsel's advice to plead guilty amounted to coercion because it should have been obvious to counsel that petitioner did not, and could not, comprehend his legal situation in the short time that they had together. In support of this contention, petitioner cites counsel's discussion with Judge DiBona during sentencing, regarding petitioner's ability to understand the significance of his guilty plea. Likewise, petitioner claims that counsel was ineffective for failing to file a motion requesting that Mr. Graham undergo a psychiatric evaluation. Petitioner also suggests that counsel should have discovered that he was allegedly in custody during the time of his crime spree.
The conversation between the court and counsel was as follows:
The Court: Have you explained to him all the consequences of a guilty plea and all the other alternatives which are available to him?
Mr. Crummet: I think so, Your Honor
The Court: You have spoken to him this morning I take it, the last?
Mr. Crummet: Yes. The last few minutes.
The Court: Did he appear to understand fully what you were saying to him?
Mr. Crummet: I believe so, Your Honor.
The Court: Are you aware of anything which might prevent your client from fully understanding everything that's said to him today concerning his guilty plea?
Mr. Crummet: I think the correct answer to that is as a lay person, I am not. I am aware of his mental history, however. But as a layman, I have not noticed anything that would prevent his understanding.N.T. p. 8, May 23, 1977.
Although petitioner has raised allegations of ineffective assistance of counsel, in some form, in each of his petitions for post-collateral relief in the state courts, he has never presented these claims to the Pennsylvania Supreme Court. Therefore, this claim is procedurally defaulted, and petitioner has not met the cause and prejudice standard to excuse such default.
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must allege that his counsel's performance was deficient, and that the deficient performance was sufficiently severe as to undermine "the proper functioning of the adversarial process," such that it could not produce a fair result. Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner does not allege facts sufficient to meet this standard and, if the merits were reached, he could not prevail. Petitioner pled guilty to the crimes with which he was charged. During his guilty plea colloquy, petitioner verbally assented when Judge DiBona asked him whether "your attorney explained to you what this means, the consequences of pleading guilty to these eight charges and all the other alternatives which are available to you?" (N. Tr. 5/23/77 at 6.) Judge DiBona also discussed the rights that petitioner was forfeiting by pleading guilty, rather than proceeding to trial. (Id. 5/23/77, 9-26.) Counsel explicitly informed the court that he was prepared to offer a full defense, and to file appropriate pre-trial suppression motions, if Mr. Graham opted for trial. (Id. 5/23/77 at 21-22.) In sum, there is no evidence that counsel failed to provide adequate legal advice to Mr. Graham or that counsel was unprepared for his defense. Thus, the court cannot credit petitioner's current allegations of ineffectiveness.
Counsel was not obligated to file a motion for a psychiatric evaluation on behalf of the petitioner. By pleading guilty, the petitioner waived the opportunity to raise his mental competency as a defense. The record shows that counsel and the court were aware that petitioner had a history of mental illness. During the plea colloquy, Judge DiBona asked petitioner whether he had ever been in a mental institution, the duration of his stay, and whether he had received any subsequent treatment. (N. Tr. 5/23/77 at 7.) Petitioner clearly stated that he was not currently suffering from a mental illness that would prevent him from understanding the proceedings. (Id.) Counsel's statement, that "as a layperson" he was not aware of anything that would prevent Mr. Graham from understanding the proceedings or entering a knowing plea, is not, as petitioner contends, proof that he was ineffective or should have requested a psychiatric evaluation.
Again, the court cannot credit petitioner's allegation that he was in custody during the time the crimes for which he plead guilty were committed. Therefore, it cannot find that counsel was ineffective on that basis.
Petitioner also claims that his appellate counsel was ineffective. Due process entitles a criminal defendant to effective assistance of counsel on his first appeal as of right.United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)). The two-pronged standard of Stickland v. Washington, 466 U.S. 668 (1984) applies to claims of ineffective appellate counsel.Cross, 308 F.3d at 315 (citations omitted). Although petitioner's appellate history is fairly intricate, the court could not find that petitioner's appellate counsel was ineffective. Looking first at the prejudice prong, the court cannot say that there was ever a "reasonable probability" that Mr. Graham would have prevailed on his appeal. Id. at 315 (citing Strickland, 466 U.S. at 694-95). Failure to satisfy either prong of the Strickland standard is sufficient to dismiss an ineffective assistance of counsel claim. Therefore, the court would not reach the issue of whether appellate counsel's performance fell below "an objective standard of reasonableness." Strickland, 466 U.S. at 688. The Superior Court found that petitioner's appellate counsel followed the requirements of Anders v. California, 386 U.S. 738 (1967) andCommonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), when it granted permission to withdraw, found the appeal "wholly frivolous," and affirmed the judgment of sentence. See Commonwealth v. Graham, No. 2022, mem. op. at 3 ( Pa. Super. 1986).
5. Mentally Challenged Status
Petitioner suggests that his long history of abuse and mental illness, detailed by this court in Graham v. Kyler, 01-1997, 2002 WL 32149019 (E.D.Pa. Oct. 31, 2002), rendered him incapable of entering a knowing and intelligent guilty plea in this case.
Although petitioner raised this claim in some state court filings, he never presented it to the Pennsylvania Supreme Court. It is therefore procedurally defaulted. Although the third circuit has not yet defined the level of mental deficiency that would constitute cause, the court finds that petitioner's mental health history does not present a situation in which the court could excuse the default. Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993).
In order for a guilty plea to be constitutionally sound, the record must demonstrate that it was knowing and voluntary.Boykin v. Alabama, 395 U.S. 238 (1969). It must be clear that the defendant understood that he was waiving some of his federal rights, and that there were consequences to doing so. See id. at 244. The plea colloquy between petitioner and Judge DiBona clearly meets the constitutional standard for a knowing and voluntary plea, as was recognized by both Judge Blake and the Superior Court. (See N. Tr. 5/23/77; N. Tr. PCHA Hearing 11/8/82 at 16; Commonwealth v. Graham, No. 2022, mem. op. at 2 (Pa.Super. 1986)).
Petitioner claims that because of his mental deficiencies, he was incompetent, and, therefore, that it was impossible for his guilty plea to have been knowing and voluntary. The standard for competence to plead guilty is the same as that for standing trial, namely, "whether the defendant has `sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has `a rational as well as factual understanding of the proceedings against him.'" Godinez v. Moran, 509 U.S. 389, 398 (1993) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)). During petitioner's guilty plea colloquy, Judge DiBona specifically inquired into petitioner's mental health history, as well as his ability to consult with counsel. (N. Tr. 5/23/77 at 6-8.) Petitioner informed the court that he had not been treated for any mental disorder since he left Eastern State School and Hospital in 1969. (Id. at 7.) He also affirmed that he had had the opportunity to discuss the charges and consequences of pleading guilty with counsel. The court then asked Mr. Graham whether he was "presently suffering from any physical of metal disability which would prevent [him] from fully understanding everything that's being said?" (Id.) Petitioner answered in the negative. (Id.) Likewise, although acknowledging petitioner's mental health history, petitioner's counsel informed the court that "as a layman, I have not noticed anything that would prevent his understanding" in entering a guilty plea. (Id. at 8.) After ensuring himself of petitioner's competency, Judge DiBona accepted Mr. Graham's guilty plea as knowing and voluntary.
A state court's factual findings, which underlie a determination of mental competency, are entitled to deference by a federal court when reviewing a habeas petition. Maggio v. Fulford, 462 U.S. 111, 117 (1983). In response to petitioner's first state PCHA petition, Judge Blake held an evidentiary hearing, during which Mr. Graham testified. He determined that petitioner had freely and intelligently entered his guilty plea and that it "was not affected by any psychiatric condition that existed at that time." (N. Tr. PCHA Hearing 11/8/82 at 16.) Part of the evidence before Judge Blake was the petitioner's pre-sentence investigation report, which was prepared on July 15, 1977. (Pet. Ex. 18.) This report included copies of previous psychiatric evaluations of the petitioner, including a finding by Robert J. Coon, M.D., dated November 28, 1972, that "this man can be processed through the judicial system without any special concern for his mental status." (Id. at 8.) While Dr. Coon, and other evaluators have diagnosed petitioner with a number of mental disorders, none of them has advanced an opinion that those disorders rendered him incompetent to stand trial, or precluded him from entering a knowing and voluntary guilty plea in a case. Thus, this court must defer, as a matter of law, to the findings of Judge DiBona and Judge Blake, and must find that petitioner, despite his history of mental illness, was competent to enter a knowing and voluntary guilty plea to the charges for which he is now imprisoned.
6. Improper Identification
Petitioner claims that he was not properly identified by either the police or the purported victims in his case. He alleges that the police officers testified falsely at his preliminary hearing when they said that he met the description of a person who was suspected of committing burglaries in the area where he was arrested. He also claims that none of the descriptions on the criminal complaint forms was detailed enough to identify him as the perpetrator of the crimes, and that the stipulations and testimony given at his preliminary hearings were constitutionally insufficient. In particular, he suggests that the rape victim failed to adequately identify him during the preliminary hearing. He suggests that she identified him as the rapist, not because he looked like the composite drawing that she had helped the police to create, but because he was the only black man in the courtroom. Petitioner also alleges that the composite drawing should have been produced in court.
Petitioner raised these allegations for the first time in the instant federal habeas petition. Because the claim of improper identification was never raised in any state court proceeding it is procedurally defaulted. Petitioner has not established cause and prejudice to excuse the default.
By pleading guilty, petitioner waived the opportunity to challenge the evidence against him, including the eyewitness identifications. See, e.g., Boykin v. Alabama, 395 U.S. 238, 243 (1969) (by entering a guilty plea, defendant waives privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers). The testimony offered during petitioner's preliminary hearing was offered to establish that there was sufficient evidence to hold him over for trial. See Commonwealth v. Wansley, 375 A.2d 73 ( Pa. Super. 1977) (citing Commonwealth v. Mullen, 333 A.2d 755 ( Pa. 1975)). Contrary to petitioner's current claims, as discussed above, several of his victims identified him as the perpetrator of the crimes against them.
Because petitioner knowingly and voluntarily plead guilty, the court will not entertain his allegations that ignore the eye-witness evidence against him.
7. Cruel and Unusual Punishment
Petitioner also claims that his lengthy sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment.
Although petitioner alleged that his sentence was "illegal" in his nunc pro tunc direct appeal, he never raised the argument that it was cruel and unusual punishment before the state courts. Like petitioner's other claims, this claim is procedurally defaulted and there is no cause and prejudice to excuse the default.
Petitioner was sentenced to ten to twenty years on six of the eight charges to which he pled guilty. During the plea colloquy, Judge DiBona notified petitioner that he could receive as a maximum jail sentence of eighty to one hundred sixty years. As the Superior Court acknowledged, "while [Mr. Graham's] sentence is a heavy one, it does not exceed the statutory limits and cannot be considered illegal." Commonwealth v. Graham, No. 2022, mem. op. at 3 (Pa.Super. 1986).
Although the Supreme Court has "on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime," successful challenges, outside of the context of capital punishment, are "exceedingly rare." Rummel v. Estelle, 445 U.S. 263, 271-72 (1980); see also Ewing v. California, 538 U.S. 11 (2003). Likewise, "federal courts should be reluctant to review legislatively mandated terms of imprisonment." Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam). The factors to consider, in determining whether a sentence is so disproportionate that it violates the Eighth Amendment are: "(i) the gravity of the offense, and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Solem v. Helm, 463 U.S. 277, 292 (1983). A cursory review of these factors demonstrates that petitioner's allegation of cruel and unusual punishment is without merit. Mr. Graham was sentenced within the statutory limits set out by the Pennsylvania legislature for a series of violent crimes. Although his sentence is lengthy, it is not unconstitutional.
8. Judicial Bias
Petitioner claims that he was the victim of judicial bias during the court proceedings leading up to his sentence. Specifically, he argues that then Judge Lynne Abraham, who presided over his preliminary hearings on the robbery charges, and Judge DiBona, who accepted his guilty plea and sentenced him, were biased against him because of his race. Petitioner offers no evidence, but unfounded accusations.
In any event, like his other claims, this claim is procedurally defaulted. Petitioner never brought it before the Pennsylvania Supreme Court. The first time that he presented this allegation was in the instant habeas petition. He has not established cause and prejudice or actual innocence to excuse the default.
In Pennsylvania, judicial recusal is required whenever there is a substantial doubt regarding a judge's ability to be impartial.Commonwealth v. Boyle, 447 A.2d 250, 252 (Pa. 1982) (citations omitted). Motions for recusal should first be directed to the judge who presided over the proceeding in question. Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998). Petitioner never gave either Judge Abraham or Judge DiBona the opportunity to timely respond to his accusations. Furthermore, petitioner's only basis for his claims of racial prejudice is the fact that both of these jurists made rulings that were unfavorable to him. It is well established that "[a]dverse rulings alone do not . . . establish the requisite bias warranting recusal, especially where the rulings are legally proper." Id. at 90.
IV. Conclusion
For the forgoing reasons, petitioner's § 2254 petition is denied. A certificate of appealability will not issue.
An appropriate order follows.