Opinion
CIVIL ACTION NO. 04-658
April 5, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the Rockview State Correctional Institution at Bellefonte, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
FACTS AND PROCEDURAL HISTORY:
On June 8, 2000, Housley's capital murder trial began. A jury, sitting before the Honorable Edward G. Biester, Jr., convicted Housley of first degree murder and robbery on June 12, 2000. After the jury deadlocked in the penalty phase, Judge Biester sentenced Housley to life imprisonment for the murder conviction and a consecutive 10-20 year sentence on the robbery conviction.
Housley filed a timely appeal in the Superior Court claiming:
1. The trial court erred in admitting petitioner's statements regarding a conspiracy with Gary Johnson, without proof of a corpus delecti;
2. The trial court erred in failing to sever the counts charging conspiracy with Gary Johnson;
3. The trial court erred in admitting certain hearsay statements of Gary Johnson.
The Superior Court affirmed the judgment of sentence on July 10, 2001.Commonwealth v. Housley, 2100 EDA 2000. Housley did not seek discretionary review in the Pennsylvania Supreme Court.
On October 15, 2001, Housley filed a petition pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. ¶¶ 9541-9551, presenting evidence that Courtney Boone, Housley's co-defendant, had recanted his testimony implicating Housley. On June 26, 2002, Judge Biester denied Housley's petition, finding that Boone's recantation was unreliable.
Housley again filed a timely appeal in the Superior Court, claiming:
1. The PCRA Court erred in allowing Boone to invoke his Fifth Amendment right and refuse to testify at the PCRA hearing;
2. The PCRA Court erred in finding the recantation testimony was unreliable without conducting a full and fair hearing.
On April 17, 2003, the Superior Court affirmed the denial of collateral relief. Commonwealth v. Housley, 2096 EDA 2002. Again, Housley did not seek discretionary review in the Pennsylvania Supreme Court.
Housley filed this petition for habeas corpus on February 17, 2004, claiming:
1. The court dismissed Boone's recantation without a full and fair hearing;
2. The trial court erred in admitting Housley's statements regarding a conspiracy with Gary Johnson, without proof of a corpus delecti;
3. The trial court erred in failing to sever the counts charging conspiracy with Gary Johnson;
4. The court improperly admitted the hearsay statements of Gary Johnson.DISCUSSION:
To properly understand Housley's claims, it is necessary to review the facts underlying his convictions. On February 8, 1999, Charles Bethea was shot and killed entering the Diva's Gentlemen's Club in Bristol Township. At Housley's trial, the Commonwealth presented Housley's own statement that he and Gary Johnson had followed the victim the night before the shooting, with the intent of robbing him. (N.T. 6/14/00, 145). However, according to Housley, because his car ran out of gas, he and Johnson did not go forward with their plan to rob Mr. Bethea. In his habeas petition, Housley argues that the trial court should have severed the conspiracy charge involving the actions of Housley and Johnson the night prior to Mr. Bethea's murder, should have barred hearsay statements made by Johnson, and should have barred the introduction of Housley's own incriminating statement.
On the night Mr. Bethea was killed, Housley employed the help of another friend, Courtney Boone, whose testimony the Commonwealth presented at trial. Mr. Boone stated that he was the get-away driver on the night Housley killed the victim. Boone testified that he and Housley followed Mr. Bethea on the night of the killing. (N.T. 6/14/00, 18-21). When Mr. Bethea exited his car at Diva's Club, Housley approached him and assaulted him, but Mr. Bethea got away and entered Diva's. (N.T. 6/14/00, 22-27). Patrons inside Diva's described the scene. Mr. Bethea stumbled backwards through the door into Diva's and was shot once in the face by a hooded man wearing a bandana. (N.T. 6/12/00, 52-58). After Mr. Bethea fell to the floor, the hooded culprit searched his pockets and took money from the victim. (N.T. 6/12/00, 58). According to Boone, he heard the shot and drove Housley back home after the shooting. (N.T. 6/14/00, 27-28). In support of his PCRA petition, Housley presented an affidavit from Boone, recanting the incriminating testimony he provided against Housley. (Exhibit attached to Notes of Testimony, 1/17/02).
Housley's girlfriend, Angela Adams, also testified at trial. She said that Housley had called her later on the night of the incident and admitted that he shot someone. (N.T. 6/13/00, 176-77). The next day, according to Angela Adams, Housley admitted to her that he had followed Mr. Bethea to Diva's, pulled a gun on him, and shot him. (N.T. 6/13/00, 181-83).
A. The Recantationl
As previously discussed, Courtney Boone provided incriminating testimony against Housley at trial. However, at the PCRA hearing, Housley presented a notarized statement from Boone, recanting all of the incriminating testimony he provided against Housley. (Exhibit attached to Notes of Testimony, 1/17/02). Instead, Boone wrote in the statement that he had been with Gary Johnson on the night Mr. Bethea was killed. Judge Biester, after holding an evidentiary hearing, rejected Boone's recantation. At the hearing, Boone refused to testify, invoking his Fifth Amendment right against self incrimination. (N.T. 1/17/02, 6-10). Therefore, the only evidence of Boone's recantation was the notarized statement presented by Housley in support of his PCRA petition.
Housley testified that he and Boone were both housed at SCI Camp Hill for a short period of time. Housley stated that during that time, Boone gave him the notarized statement recanting the testimony. On cross examination, however, Housley admitted that Boone feared him in prison and when he and Boone met in the prison, it was not a friendly meeting.
In reviewing the evidence, Judge Biester determined that Boone's recantation lacked credibility. Commonwealth v. Housley, 5800 of 1999 (PCRA Opinion, 6/26/02, Biester, J., at 10), hereinafter "PCRA Opinion." The judge reviewed the trial testimony and determined that there was an abundance of evidence at the trial corroborating Boone's original rendition of the facts. Shamekia Adams, Housley's landlord and sister of his girlfriend, testified at trial that she saw Housley and Boone around one in the morning on the night in question. Id. at 7; N.T. 6/13/00, 139-42. When they entered the house, they asked her not to tell anyone that Housley lived there. (N.T. 6/13/00, 142). Additionally, Angela Adams, Housley's girlfriend, testified that on the night of the murder Housley called her and admitted that he had just killed someone. PCRA Opinion, at 7; N.T. 6/13/00, 176-77'. He later described the scene to Angela Adams and his description, as recited by Ms. Adams, was consistent with the testimony of the eyewitnesses to the shooting. Thus, Judge Biester determined that the recantation lacked credibility. This finding is supported by the facts of the case.
To the extent Housley contends that the court erred in allowing Boone to invoke his Fifth Amendment rights, his claim also lacks merit. The Superior Court explained that "were Boone to have testified in accordance with his affidavit, he would have admitted under oath that he perjured himself in his previous testimony." This is the heart of the protection against self incrimination. "At its core, the privilege reflects our fierce `unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt.'" Pennsylvania v. Muniz, 496 U.S. 582, 596 (1990) (quoting Doe v. United States, 487 U.S. 201, 212 (1988)). Thus, the state courts correctly determined that Boone properly invoked his Fifth Amendment right.
B. Admission of Housley's Incriminating Statement
Housley next complains that the trial court erred in admitting incriminating statements that he made to the police and witnesses. He contends that without independent evidence of the conspiracy with Johnson to rob Mr. Bethea, it was error to allow the Commonwealth witnesses to testify to his statements regarding this matter. In Pennsylvania evidentiary rulings, this is known as the corpus delecti rule.
"Corpus delecti" means, literally, the body of a crime. The corpus delecti consists of the occurrence of a loss or injury resulting from some person's criminal conduct. The corpus delecti rule requires the Commonwealth to present evidence that: (1) a loss has occurred; and (2) the loss occurred as a result of a criminal agency. Only then can the Commonwealth rely upon statements and declarations of the accused to prove that the accused was, in fact, the criminal agent responsible for the loss. The grounds on which the rules rests are the hasty and unguarded character that is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed. . . .
[T]he rule seeks to ensure that the Commonwealth has established the occurrence of a crime before introducing the statements or confessions of the accused to demonstrate that the accused committed the crime. The rule was adopted to avoid the injustice of a conviction where no crime exists. The fact that a crime has been committed by someone must be shown before a confession will be received.Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003).
To the extent Housley's claim involves an error of state law, i.e. the allegedly improper application of a state evidentiary rule, it is beyond the review of habeas corpus. "It is axiomatic that federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension." Wainwright v. Goode, 464 U.S. 78, 83 (1983) (citing Engle v. Isaac, 457 U.S. 1141 (1982)). That is not to say that state court evidentiary rulings may never be reviewed in habeas corpus. Rather, habeas corpus is only appropriate when such evidentiary rulings amount to a violation of due process.
In his habeas petition, although Housley does not mention a violation of due process or the denial of a fair trial, he does claim that the application of the corpus delecti rule violated the Constitution. The problem is that he never alerted the state courts to the constitutional dimension of his claim. Absent unusual circumstances, the federal court will not consider the merits of a habeas corpus petition unless the petitioner has complied with the exhaustion requirement of 28 U.S.C. ¶ 2254(b)(1)(A). That requires that the state courts be given a fair opportunity to review the Petitioner's claims.
Both the legal theory and the facts supporting a federal claim must be fairly presented to the state courts before bringing a habeas corpus petition. Landano v. Rafferty, 897 F.2d 661, 669-670 (3d Cir.), cert. denied, 498 U.S. 811 (1990). This ensures "that the same method of legal analysis that is used by the federal court in resolving the petitioner's claim was also readily available to the state court when it adjudicated the claim." Id. Here, although Housley presented a claim involving the corpus delecti rule in the state courts, he never alerted them to an underlying due process violation. Thus, his claim is unexhausted. See Duncan v. Henry, 513 U.S. 364. 366 (1995)("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."). Therefore, Housley is not entitled to habeas relief.
At this point, any attempt on Housley's part to present a due process claim to the state courts would fail. The claim has been waived and any PCRA petition he filed would be considered untimely. See 42 Pa.C.S.A. ¶¶ 9544(b); 9545(b). Thus, it is procedurally defaulted for purposes of habeas corpus. See Teague v. Lane, 489 U.S. 288, 308 (1988) (plurality opinion)(petitioner's failure to properly present claims pursuant to state procedural rules results in a procedural default); see also Wainwright v. Sykes, 433 U.S. 72 (1976)(same). Since Housley offers no reason for his failure to present this claim earlier and does not supplement his petition with any evidence of innocence, the default will not be excused. See infra, at 9.
C. Severance of Conspiracy Charges
Housley next argues that the court erred in failing to grant the motion to sever the conspiracy charges. As previously discussed, the evidence presented at trial included the fact that Housley and Gary Johnson had followed the victim, with the intent of robbing him, the night before the murder. Housley argues that the trial court erred in failing to sever the information charging the counts relating to this incident.
Again, Housley presents an issue of state law. Throughout his state appeals, Housley couched this claim in terms of a violation of Pennsylvania Rule of Criminal Procedure 1128. The violation of a state rule of criminal procedure is not cognizable in habeas corpus. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions").
Pennsylvania Rule of Criminal Procedure 1128 is now codified at Pa.R.Cr.P. 583, and provides: "The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together."
D. Admission of Hearsay Statements
Finally, Housley argues that the court erred in admitting hearsay statements of Gary Johnson. Because Housley failed to properly present this claim to the state courts, it is considered procedurally defaulted in the federal habeas forum. Claims are considered procedurally defaulted if the "final state court presented with a federal claim refuses to decide its merits based on an established state rule of law independent of the federal claim and adequate to support the refusal." Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
Here, the Superior Court found that Housley's hearsay claim was waived because he failed to present the claim in his matters complained of on appeal. Commonwealth v. Housley 2100 EDA 2000, at 8. Since the Superior Court refused to address the merits of Housley's claim based on a state procedural rule, see Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (any issue not presented to the lower court in a Rule 1925(b) statement is deemed waived on appeal), the claim is defaulted and may only be addressed if Housley establishes cause for the default and prejudice resulting, therefrom, or that failure to address the claim will result in a fundamental miscarriage of justice. Sistrunk, 96 F.3d at 674-75.
Housley fails to offer any reason for his failure to present his hearsay claim in his post verdict motions. Thus, he has failed to establish cause for his default. Therefore, his claim can only be considered upon a showing of a fundamental miscarriage of justice, which requires the petitioner to supplement his claim with a "colorable showing of factual innocence." McCleskev v. Zant, 499 U.S. 467, 495 (1991) (citingKuhlmann v. Wilson 477 U.S. 436, 454 (1986)). The burden is on the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Carrier, at 496). Housley has failed to supplement his claim with any showing of innocence. Therefore, the default should not be excused.
Any attempt to allege ineffective assistance of counsel to excuse the default would fail because Housley did not allege in his PCRA appeal that trial counsel was ineffective for failing to present the hearsay claim in the Rule 1925(b) statement, as required by the state procedural rule. Therefore, the claim would be unexhausted. See Edwards v. Carpenter, 529 U.S. 446. 452 (2000) (quoting Carrier, at 489)("[A] claim of ineffective assistance . . . must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.").
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 5th day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be denied. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this ___ day of ___, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DENIED.
3. There is no basis for the issuance of a certificate of appealability.