Opinion
CIVIL ACTION NO. 03-2467
October 23, 2003
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is presently incarcerated at the State Correctional Institution at Frackville, Pennsylvania. For the reasons stated below, this court recommends that the petition be denied.
I. BACKGROUND
On September 22, 1997, following a non-jury trial before the Honorable Paul W. Tressler, petitioner, represented by counsel, was found guilty of six counts of robbery and three counts of robbery of a motor vehicle. (Response Ex. C.) On September 26, 1997, petitioner was sentenced to an aggregate sentence of sixty to one hundred twenty-seven years imprisonment. Id. This sentence was to run consecutive to sentences then being served of ninety-eight and one-half years to life imprisonment. Id.
Petitioner filed a Notice of Appeal with the Superior Court of Pennsylvania. Petitioner raised the following issues on direct appeal:
1. Did the trial court err in refusing to dismiss all Montgomery County charges involving appellant as being time-barred by the prior Philadelphia County prosecutions and dispositions of other charges arising from the same criminal episode?
2. Did the trial court err in refusing to dismiss all charges against appellant for violation of his speedy trial rights under Rule 1100?
3. Did the trial court err in refusing to suppress all items seized on November 18, 1994 from an apartment in Philadelphia when said seizure was done without a warrant, without exigent circumstances and where any consent was obtained under duress and was not knowingly, voluntarily and freely given?
4. Did the trial court err in refusing to suppress photographic identifications and subsequent identifications flowing therefrom based on an unduly suggestive photographic array?
5. Was the trial court's verdict contrary to the weight of the evidence where some identifications were not made with the appropriate degree of certainty to meet the standard of proof beyond a reasonable doubt?
6. Did the court's sentence (maximum consecutive sentences) exceed the aggravated sentencing range without sufficiently particularized reasoning warranting such an extreme departure?
(Response Ex. K (Appellant's Brief at 6-7).) On December 28, 1998, the Superior Court affirmed the trial court's judgment of sentence.Commonwealth v. Keeling. 736 A.2d 9 (Pa.Super. 1998) (Table). (Response Ex. E.) Petitioner filed a petition for allowance of appeal to the Pennsylvania Supreme Court which was denied on September 30, 1999. Commonwealth v. Keeling. 743 A.2d 916 (Pa. 1999) (Table).
On February 16, 2000, petitioner filed a pro se petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et sea. BY order dated February 23, 2000, Judge Tressler appointed Faith C. Hammes, Esquire to represent petitioner. Ms. Hammes filed a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) and a petition to withdraw as counsel. (Response Ex. G.) On March 15, 2001, Judge Tressler dismissed petitioner's PCRA petition without a hearing. Commonwealth v. Keeling. No. 2660-95 (C.P. Mtgy. County May 11, 2001). (Response Ex. H.) Judge Tressler issued a written opinion following petitioner's appeal from that order. Id. Petitioner then appealed to the Superior Court of Pennsylvania and raised the following issues:
1. Did the post conviction court err by dismissing P.C.R.A., petition based, on trial counselor failure to challenge legality of appellants arrest,. Pursuant to, Art, 1 Sec, 8 9. Also, U.S. Const., 4, 5, 6 14, Amendment, [sic]
2. Did the post conviction court err by dismissing P.C.R.A., petition based, on trial counselor failure to call witnesse's as requested by appellant., Pursuant to, Art, 1 Sec, 9. Also, U.S. Const., 5, 6, 14 Amendment, [sic]
3. Did the post conviction court err by dismissing P.C.R.A., petition based, on the trial counselor failure to investigate and prepare adequately for trial., Pursuant to Art, 1 Sec, 9. Also, U.S. Const., 4, 5, 6 14., Amendment, [sic]
4. Did the post conviction court err by dismissing P.C.R.A., petition based, on trial counselor failure to raise or preserve meritorious issue's for appellate review proceedings interwoven law, [sic]
5. Did the post conviction court err by dismissing P.C.R.A., based, on trial counselor failure to challenge seized evidence admissibility., Pursuant to Art, 1 Sec, 9, Also, U.S. Const., 4, 6, 14., Amendment, [sic]
(Response Ex. L (Appellant's Brief at iii).) The Superior Court of Pennsylvania affirmed the dismissal of the PCRA petition on March 19, 2002. Commonwealth v. Keeling. 799 A.2d 170 (Pa.Super. 2002) (Table). (Response Ex. I.) The Supreme Court of Pennsylvania denied a petition for allowance of appeal on September 20, 2002. Commonwealth v. Keeling. 808 A.2d 570 (Pa. 2002) (Table). (Response Exs. J and N.)
On July 7, 2003, petitioner filed the instant petition for a writ of habeas corpus raising the following six issues:
1. Petitioner was denied his rights to a speedy trial.
2. Ineffective assistance of counsel for failure to challenge "per-se" petitioner's legality surrounding the probable cause to arrest on November 18, 1994.
3. Ineffective assistance of counsel for failure to properly challenge "admissibility" of all evidence introduced at trial per-se his client.
4. Ineffective assistance of counsel for failure to investigate and adequately prepare by calling numerous witnesses (two) them [sic] were actually "requested" by petitioner prior to any pre-trial proceeding's [sic].
5. The court erred by failing to suppress the photograph identification's based on the unduly and suggestive photographic array in violation of due process of law.
6. Pennsylvania Post Conviction Relief Act as a corrective process was inadequate to afford petitioner due process rights.
(Petitioner's Mem. Supp. Pet. at 2, 5, 8, 20, 31, and 39.) See also Petitioner's Notice of Clarification (Document No. 16).
In Response, the Commonwealth stated that petitioner raised only four claims and argued that they were unexhausted because, even though the issues were raised in the state courts, they were not raised in federal terms. In the alternative, the Commonwealth contends that the issues should be denied on the merits. (Response at 5-9.)
II. DISCUSSION A. Exhaustion and Procedural Default
As noted above, the Commonwealth argues that petitioner's claims are procedurally defaulted. Before proceeding to examine each of the claims, the court will first review the doctrine of procedural default.
It is well established that a prisoner must present all of his claims to a state's intermediate court, as well as to its supreme court, before a district court may entertain a federal petition for habeas corpus. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel. 526 U.S. 838, 842, 847 (1999); Evans v. Court of Common Pleas. Del. County. Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). "The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert. denied. 504 U.S. 944 (1992). To satisfy the exhaustion requirement, a petitioner must demonstrate that the claim raised in the federal petition was "fairly presented" to the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor. 404 U.S. 270, 275 (1971)). "This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts."Lesko v. Owens. 881 F.2d 44, 50 (3d Cir. 1989), cert. denied, 493 U.S. 1036 (1990).
On May 9, 2000, the Pennsylvania Supreme Court issued Order No. 218 that declares that federal habeas petitioners no longer have to appeal to the state supreme court to satisfy the exhaustion requirement. This order is not be applied retroactively. See Wenger v. Frank. 266 F.3d 218, 225 (3d Cir. 2001), cert denied. 535 U.S. 957 (2002).
However, when the petitioner cannot obtain state court review of his claims because of noncompliance with state procedural rules, the doctrine of procedural default generally bars federal habeas corpus review.Coleman v. Thompson. 501 U.S. 722, 729-32 (1991); Sistrunk v. Vaughn, 96 F.3d 666, 674-75 (3d Cir. 1996). The Supreme Court stated:
[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims.Coleman. 501 U.S. at 735 n.l. Upon a finding of procedural default, review of a federal habeas petition is barred unless the habeas petitioner can show that "(1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered."Peterkin v. Horn. 176 F. Supp.2d 342, 353 (E.D. Pa. 2001): see also Doctor v. Walters. 96 F.3d 675, 683 (3d Cir. 1996).
A state procedural rule provides an independent and adequate basis for precluding federal review of a state prisoner's habeas claims if: "(1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions." Doctor. 96 F.3d at 683-84. "A state [procedural] rule is adequate only if it is `consistently and regularly' applied." Id. at 684.
Petitioner can demonstrate cause for procedural default if he can show that some objective factor external to the defense impeded or prevented his ability to comply with the state procedural rules. Caswell. 953 F.2d at 862. To show prejudice, petitioner must present evidence that this factor did more than merely create a possibility of prejudice; it must have "worked to [petitioner's] actual and substantial disadvantage." Murray v. Carrier. 477 U.S. 478, 494 (1986) (emphasis in original) (quoting United States v. Frady, 456 U.S. 152, 170(1982)). Additionally, the fundamental miscarriage of justice exception to procedural default is only concerned with "actual" innocence, and petitioner must show that it is more likely than not that no reasonable juror would have convicted him absent the claimed error.Schlep v. Delo, 513 U.S. 298, 327 (1995). B. Habeas Corpus Standards
Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The provisions of the AEDPA relevant to the instant matter provide as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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) and (2). With respect to section 2254(d)(1), a federal habeas petitioner is entitled to relief under the "contrary to" clause only if "the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor. 529 U.S. 362, 413 (2000). The Court in Williams was careful to note that most cases will not fit into this category, which is limited to direct and unequivocal contradiction of Supreme Court authority. Id. at 406-08. See also Matteo v. Superintendent. SCI Albion. 171 F.3d 877, 888 (3d Cir.)(en banc) (to prove entitled to relief under "contrary to" clause, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's;. . . petitioner must demonstrate that Supreme Court precedent requires the contrary outcome") (emphasis in original), cert. denied, 528 U.S. 824 (1999).
Under the "unreasonable application" clause, a federal habeas court may not issue the writ simply because that court concludes "that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams. 529 U.S. at 411. Relief is appropriate only where the state court decision is also objectively unreasonable. Id. See Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (federal habeas court should not grant the petition unless "the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified" under existing Supreme Court precedent) (quoting Matteo, 171 F.3d at 891), cert. denied. 523 U.S. 980 (2001).
With respect to 28 U.S.C. § 2254(d)(2), which dictates that federal habeas relief may be granted when the state court adjudication was based on an unreasonable determination of the facts in light of the evidence presented, the petitioner must demonstrate that a reasonable fact-finder could not have reached the same conclusions given the evidence. If a reasonable basis existed for the factual findings reached in the state court, then habeas relief is not warranted. Campbell v. Vaughn. 209 F.3d 280, 290-91 (3d Cir. 2000), cert denied, 531 U.S. 1084 (2001). Furthermore, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
C. Standard for Ineffective Assistance Claims
Several of petitioner's claims allege ineffective assistance of counsel. Before addressing the specifics of these claims, the court will first review the standards used to evaluate an ineffective assistance claim.
In Strickland v. Washington. 466 U.S. 668 (1984), the Supreme Court set forth a two prong test that a petitioner must satisfy before a court will find that counsel did not provide effective assistance. Under the Strickland test, a petitioner must show: (1) that his attorney's representation fell well below an objective standard of reasonableness; and (2) that there exists a reasonable probability that, barring counsel's ineffectiveness, the result of the proceeding would have been different. Id. at 687-96. To satisfy the first prong of the Strickland test, a petitioner is required to show that "counsel made errors so serious that counsel was not functioning as `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In evaluating counsel's performance, a reviewing court should be "highly deferential" and must make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Moreover, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (citation omitted).
To satisfy the second prong of the Strickland test, a petitioner must show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome" of the proceeding.Id. It follows that counsel cannot be ineffective for failing to pursue meritless claims or objections. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999); United States v. Fulford, 825 F.2d 3, 9 (3d Cir. 1987). In such a situation, the second prong of the Strickland test has not been satisfied. Furthermore, counsel is not ineffective for failing to raise all possible claims of trial court error on appeal. Counsel may exercise his or her professional judgment as to which claims to pursue. See Jones v. Barnes, 463 U.S. 745, 750-54 (1983) (decision of what issues to raise on appeal is charged to counsel; counsel need not assert every non-frivolous issue to guard against subsequent claim of ineffectiveness). Thus, it is not inappropriate for counsel, after consultation with his client, to override the client's wishes when exercising professional judgment regarding which issues to pursue on appeal. Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996).
D. Petitioner's Claims
This court finds that petitioner has exhausted his state court remedies with respect to his first five claims. The Commonwealth acknowledges that petitioner raised these claims in state court, but just not in federal terms. Review of the state court record reveals that petitioner "fairly presented" his first five claims in the state courts so as to satisfy the requirements of the exhaustion doctrine. The court, therefore, will consider the merits of petitioner's claims. 1. Claim One — Petitioner Claims He Was Denied His Right To A Speedy Trial Under State Law.
The court will address the non-exhaustion of petitioner's sixth claim below.
Petitioner's first claim alleges that he was not brought to trial within the time period proscribed in Rule 1100 of the Pennsylvania Rules of Criminal Procedure. (Petitioner's Mem. Supp. Pet. at 2-5.) Petitioner's claim that Rule 1100 of the Pennsylvania Rules of Criminal Procedure was violated raises an issue purely of state law and is not reviewable in a federal habeas proceeding. Federal courts cannot "reexamine state-court determinations on state — law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal court can grant a petition for a writ of habeas corpus only when there has been a violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); Johnson v. Rosemeyer, 117 F.3d 104, 108 (3d Cir. 1997). Petitioner's claim that the Commonwealth violated Rule 1100 does not state a claim under the United States Constitution, since that Rule is not co-extensive with the constitutional speedy trial right and is not constitutionally mandated.Wells v. Petsock, 941 F.2d 253, 256 (3d Cir. 1991), cert denied, 505 U.S. 1223 (1992) ("Pennsylvania's 180-day rule does not define the contours of the federal constitutional right to a speedy trial. . . .We can take no cognizance of non-constitutional harm to the defendant flowing from a state's violation of its own procedural rule, even if that rule is intended as a guide to implement a federal constitutional guarantee."). See also Dugger v. Adams. 489 U.S. 401, 410 (1989) ("[M]ere errors of state law are not the concern of this Court unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution."); Barker v. Wingo, 407 U.S. 514, 523 (1972) ( Sixth Amendment provides no requirement that a state must bring a criminal defendant to trial within a specified period of time); Sadler v. Sullivan. 748 F.2d 820, 825 (3d Cir. 1984) ("the particular terms of [Rule 1100] are neither directly granted by nor required by the Constitution"); Cooper v. Vaughn, 1993 WL 264699, at *3 (E.D. Pa. June 30, 1993) ("Claims which arise under Rule 1100 are . . . state law claims; as such, they provide no ground for federal habeas relief").
Former Rule 1100, Pennsylvania's speedy trial rule, was re-codified as Pa. R. Crim. P. 600 as of April 1, 2001.
Consequently, petitioner's first claim should be denied.2. Claim Two — Ineffective Assistance Of Counsel For Failure To Challenge The Legality Surrounding The Probable Cause To Arrest On November 18, 1994.
Petitioner's second claim is that his counsel (trial counsel presumably) was ineffective for not challenging the legality and constitutionality of his arrest on November 18, 1994. Petitioner asserts as follows in support of this claim:
[It] is [un]disputed by the certified record's [sic] counsel failed his legal obligation's [sic] by not requesting per-se challenge of "Probable Cause" to arrest by [the] officers' [sic]. . . and whether these officer's [sic] had per-se violated "his" client's forth [sic] amendment rights . . . . . .
[H]erein, counsel actually heard testimony at a preliminary hearing on (4/27 28/95) in Montgomery County, Thus [sic] the logical defense would be to prepare a [sic] seeking what is commonly known as a Probable Cause hearing and there can be [no] doubt herein petitioner did not have a Full and Fair Hearing in the State Court.
(Petitioner's Mem. Supp. Pet. at 5-7 (emphasis in the original).)
The Superior Court of Pennsylvania fully addressed this issue stating as follows:
On appeal, Appellant raised the claim, inter alia, that trial counsel in the Philadelphia proceeding rendered ineffective assistance of counsel for failing to preserve and challenge the legality of his November 18, 1994 arrest. In addressing this issue, this Court considered the circumstances surrounding Appellant's arrest and concluded that `the officers possessed reasonable suspicion of Appellant's involvement in criminal activity to justify their initial investigative detention of Appellant so that they could ascertain his identity and gather more information as to his potential involvement in the carjackings which had taken place in the area.' Commonwealth v. Keeling. 481 EDA 2000 (Pa.Super. filed May 31, 2001 at 15) (footnote omitted). The Court further opined that: `Appellant's conduct after being lawfully detained most certainly gave rise to independent cause for his subsequent arrest. The pursuing officers had personally observed Appellant's criminal conduct of pulling a gun and firing it, since they were the intended victims of this criminal activity. Based on their firsthand observations of this conduct, the officers were clearly justified in arresting Appellant for these actions.' Id. at 16.
Thus, since the legality of Appellant's November 18, 1994 arrest has been previously litigated in this Court, it cannot be raised as the present time, 42 Pa. Cons. Stat. Ann. § 9544(a)(2), even if done so "under the cloak of an ineffectiveness of counsel claim." See Commonwealth v. Travaglia, 541 Pa. 108, 121, 661 A.2d 352, 358 (1995). As such, counsel cannot be found ineffective on this basis.Commonwealth v. Keeling. No. 1558EDA 2001, slip op. at 4-5 (Pa.Super.Ct. March 19, 2002) (Response Ex. I.)
The issue of the legality of petitioner's arrest on November 18, 1994 was raised and addressed by the state court and found to be meritless. This court agrees with the state court's conclusion that there was probable cause for the arrest. A police officer may make a warrantless arrest of someone the officer observed committing a crime. See United States v. Watson. 423 U.S. 411, 418 (1976) (commission of crime in presence of officer is sufficient cause to support warrantless arrest). Counsel cannot be found to be ineffective for failing to raise a meritless claim. Petitioner's second claim should be denied.
3. Claim Three — Ineffective Assistance Of Counsel For Failure To Properly Challenge "Admissibility" Of All Evidence Introduced At Trial.
Petitioner's third claim is that counsel was ineffective for failing to request a suppression hearing to challenge "[n]umerous item's [sic] seized and illegally introduced at trial." (Petitioner's Mem. Supp. Pet. at 8.) Petitioner raised this issue in his PCRA petition. The PCRA court rejected this argument concluding that "this issue is meritless, as counsel litigated the suppression of evidence both at trial and on direct appeal." Commonwealth v. Keeling. No. 2660-95, slip op. at 3 (C.P. Mtgy. County May 11, 2001). (Response Ex. H.) See also Response Ex. C at 3-4 (Transcript of September 22, 1997 Hearing on Pretrial Motions — Defense counsel addressed his Motion to Suppress "all items seized on or about November 18th, 1994 at an apartment in Philadelphia.").
Counsel cannot be ineffective for failing to take a course of action which he in fact took. Petitioner's third claim should be denied.
4. Claim Four — Ineffective Assistance Of Counsel For Failure To Investigate And Adequately Prepare By Calling Numerous Witnesses.
In his fourth claim, petitioner alleges that "trial counsel was ineffective for failing to conduct any adequate pre-trial investigation or interview with numerous `potential' witnesses (5) Five and (2) Two of whom were actually placed on notice about [sic] through both verbal and written communication's [sic]." (Petitioner's Mem. Supp. Pet. at 20.) The United States Constitution does not require counsel to call each and every witness that is suggested to him by his client. Bowen v. Blaine, 243 F. Supp.2d 296, 311 (E.D. Pa. 2003). A decision not to use certain witnesses does not constitute ineffective assistance of counsel if it "amounted to a tactical decision within the parameters of reasonable professional judgment." Duncan v. Morton. 256 F.3d 189, 201 (3d Cir.), cert denied, 534 U.S. 919 (2001). Furthermore, even if counsel should have called the witnesses to testify, in order to show ineffective assistance of counsel, petitioner must show "a reasonable likelihood that . . . information [not presented] would have dictated a different trial strategy or led to a different result at trial." Lewis v. Mazurkiewicz. 915 F.2d 106, 115 (3d Cir. 1990).
The first witness petitioner identifies is "C.O. Leather." Petitioner claims that this witness was "needed to prove and `support' being relinquished to officials of authority in New York State." Id. at 21. Petitioner contends that "had the judge heard [C.O. Leather's] actual testimony `clarifying' direct authorized [sic] releasing petitioner from prosecution in Montgomery County he would have completely [dismissed] all charges, pursuant to Rule, 1100." Id. The second witness petitioner identifies is Sergeant Osborne, "theactual arresting officer," whose testimony would have concerned "the [legalities] of petitioner's arrest on November [sic] 18, 1994."Id. at 22 (emphasis in original). The third witness petitioner identifies is Assistant District Attorney Edmund J. Campbell to address the speedy trial issue under Pa. R. Crim. P. 1100. Id. at 26. The fourth witness petitioner identifies is Mr. John Carroll, the apartment manager of the complex where petitioner resided. Id. at 28. Petitioner contends that Mr. Carroll's testimony was relevant to the search of his apartment and the suppression of evidence removed from that apartment. Id. The fifth and final witness petitioner identifies is Ms. Chandra Sutton, petitioner's companion and the individual who consented to the police searching the apartment in which petitioner resided. Id. at 28-29.
On appeal from the denial of his PCRA petition, the Superior Court of Pennsylvania addressed petitioner's claim that trial counsel was ineffective for failing to call C.O. Leather and Sergeant Osborne. The court rejected petitioner's claim of ineffective assistance of counsel stating as follows:
A review of the record reveals that Appellant failed to establish that Sergeant Osborne and Mr. Leather were available to testify, and were prepared to cooperate and testify on behalf of Appellant. In addition, the record is devoid of affidavits setting forth the contents of the alleged testimony of Sergeant Osborne and Mr. Leather. Thus, Appellant's claim of ineffective counsel for failure to call requested witnesses is without merit.Commonwealth v. Keeling. No. 1558 EDA 2001, slip op. at 6 (Pa.Super.Ct. March 19, 2002) (Response Ex. I).
Here, petitioner states summarily that these five witnesses were available and would have testified as he desires. Yet, petitioner offers no affidavits or other evidence to support these conclusory statements. This claim can be denied on this ground alone. See Zettlemoyer v. Fulcomer. 923 F.2d 284, 298 (3d Cir.) (court rejected claim of ineffective assistance of counsel for failing to procure certain witness testimony because petitioner "neither alleges nor offers evidence that any such testimony was forthcoming or available upon reasonable investigation"), cert. denied. 502 U.S. 902 (1991). Additionally, petitioner presents no evidence showing "a reasonable likelihood that . . . information [not presented] would have dictated a different trial strategy or led to a different result at trial."Lewis. 915 F.2d at 115.
Petitioner asserted that the testimony of Sergeant Osborne would have supported his claim that his arrest was illegal. As stated above, the state courts thoroughly addressed this issue and rejected it. Petitioner presented no evidence that testimony from Mr. Osborne would have required a different result. Petitioner asserted that the testimony of Mr. Leather and ADA Campbell would have supported his speedy trial argument. Again, as stated above, the state courts thoroughly examined and rejected this argument. Petitioner presented no evidence that these individuals would have testified on his behalf or that a different outcome would have resulted. Finally, petitioner contended that the testimony of Mr. Carroll and Ms. Sutton would have supported his position that certain evidence should have been suppressed. The state courts thoroughly examined and rejected this argument. The trial court held an extensive hearing at which the speedy trial and suppression issues were addressed.See Response Ex. C (transcript from Pretrial Motions hearing on September 22, 1997 indicating that the proceeding commenced at 11:45 a.m. and convened at 4:50 p.m.). Petitioner submitted no evidence that these individuals were available and would have testified on his behalf. Nor does petitioner show that a different result would have occurred.
For all of these reasons, petitioner's fourth claim should be denied.
5. Claim Five — The Court Erred By Failing To Suppress The Photograph Identifications Based On The Unduly And Suggestive Photographic Array.
In his fifth claim, petitioner asserts "a due process violation from overly suggestive identification procedure's [sic] and the Trial and Appellate Court `erred' in admitting evidence that depict petitioners [sic] photograph with `physical anomalies [unique] in appearance from other photograph's [sic] in the array' and moves to exclude such testimony due to the unique [lump's [sic] and buries] on petitioner's face and such violated the due process clauses [sic] protection against certain suggestive identification procedures." (Pet.'s Mem. Supp. Pet. at 32.) Petitioner contends that the entire photographic array should have been suppressed because the photograph used in identifying him by several witnesses was taken the day he received "buries" during his arrest by police. Id. at 33. Petitioner argues that in his picture in the photographic array shown to witnesses, there was swelling around his eyes. Id.
Petitioner raised this issue on direct appeal. In rejecting this argument, the trial judge described the photographic array: "The array was comprised of photographs of eight black males, all with similar complexions, dark eyes, short hair and slight beards resembling goatees. Defendant, number two in the array, was the only one with a mark resembling a bump above his right eye, but the mark is not obvious."Commonwealth v. Keeling. No. 2660-95, slip op. at 9 (C.P. Mtgy. County April 20, 1998). (Response Ex. D.) The trial judge also explained the procedure followed during the inspection of the array by witnesses.
The first group of victims viewed the array at a police station in Philadelphia. The victims were brought one at a time into a room to see the array. A detective, an assistant district attorney and an assistant public defender appointed to represent defendant were in the room at the time. No one told the victims how many arrays they would view, how the array was assembled, or whether the suspect was in the array. No one suggested which photo the victim should select. After viewing the array, each victim was segregated from those who had yet to see it.
The second group of victims viewed the array at the offices of the Cheltenham Township Police Department. This time, each victim viewed the array while alone in a room with a police detective, but in all other respects the police followed the same procedure as they had with the first group of victims. One victim was in Florida at the time of the investigation, so the authorities arranged to have local FBI agents show him the array.Id. at 9-10.
Petitioner's counsel argued a motion to suppress the identifications from the photographic array at the September 22, 1997 hearing on pre-trial motions. (Response Ex. C at 87-165 (Transcript of Hearing on Pre-Trial Motions).) The hearing included testimony from the assistant district attorney and detective who conducted the identification process as well as one of the victims who made an identification. Id. Petitioner's counsel raised the same argument at issue here, i.e., petitioner's photograph was unduly suggestive because of the appearance of a bump above his eye.Id. at 164. Judge Tressler rejected this argument stating as follows:
As far as the eyes are concerned, I'm not sure whether the defendant has swollen eyes or just a bump or like a wart or something over his one eye, but I certainly wouldn't have noticed it had it not been brought to my attention. As a matter of fact, when [the victim who testified at the pre-trial motions hearing] was asked, he didn't notice it until it was brought to his attention and even then he didn't know what it was. Detective Rickard hadn't noticed it until it was brought out and had I not focused on it intently, I wouldn't have noticed it. There's certainly nothing suggestive about the fact that a person has a bump on their eyebrow.Id. at 164-65. Judge Tressler stated that the fact that some of the victims noted that they were not sure that petitioner was the perpetrator did not require the identifications to be suppressed. Rather, those comments were "something that obviously can be pursued at trial."Id. at 165.
Following the Pennsylvania Supreme Court's ruling in Commonwealth v. Brown. 676 A.2d 1178 (Pa. 1996), the court ruled that the array was not unduly suggestive. The trial court judge opined as follows:
In Brown, as in this case, a witness was shown a photographic array of eight black males, but the witness was not told that the suspect was in the array, and no one suggested the witness choose a particular photo. In the Brown array, only one person had a complexion similar to that of the defendant, and one person wore glasses, despite the fact that the witness had not reported seeing glasses on the perpetrator. In this case, the men in the array shared similar complexions, hair styles and facial hair. Although defendant was the only member of the array with a mark over his eye, it was not obvious. Thus, defendant's photograph in this array was even more similar to the others than was the photograph of the defendant in Brown. Under the standard established by Brown, the array in this case was not unduly suggestive.
The fact that the witnesses in this case could not say for certain that the defendant's photograph was that of the wrongdoer does not invalidate their identification. In Brown, the witness told police she was "not one hundred percent sure," but that the photograph she chose looked like the perpetrator. Although she was not able to identify the defendant at trial, the Brown court upheld the trial judge's refusal to suppress the photo identification. Following Brown, this court properly denied defendant's similar motion to suppress.Id. at 10 (citations omitted).
The Superior Court of Pennsylvania, in affirming the judgment of sentence, agreed with the trial court that the photographic array was not unduly suggestive. The Superior Court noted that the "photographs included no identifying information, and the police in no way sought to influence the victims while they viewed the photographs."Commonwealth v. Keeling. No. 4428 Phila. 1997, slip op. at 15 (Pa.Super.Ct. Dec. 28, 1998). (Response Ex. E.) The Superior Court also reviewed the array and reached the same conclusion as the trial court, i.e., "the bump is not noticeable unless it is brought to the attention of the viewer." Id.
The Due Process Clause prohibits the use of identification procedures which are "unnecessarily suggestive or conducive to irreparable mistaken identity." Stovall v. Denno, 388 U.S. 293, 302 (1967). "[R]eliability is the linchpin in determining the admissibility of identification testimony. . . . Mason v. Brathwaite, 432 U.S. 98, 114 (1977). See United States v. Higgins, 458 F.2d 461, 465 (3d Cir. 1972) (seven factors to consider in determining whether an identification procedure is suggestive). It is also clear that the admission or exclusion of evidence is within the sound discretion of the trial court. Commonwealth v. Banks. 521 A.2d 1 (Pa.),cert. denied, 484 U.S. 873 (1987). Moreover, it is well established that "evidentiary errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial." Bisaccia v. Attorney General of State of New Jersey. 623 F.2d 307, 312 (3d Cir.) (citingDonnelly v. DeChristoforo, 416 U.S. 637, 642-43 (1974)), cert. denied, 449 U.S. 1042 (1980).
Fact questions underlying ultimate conclusions concerning the constitutionality of state pretrial identification procedures are governed by the statutory presumption of correctness of state court findings of fact in a federal habeas corpus proceeding. Sumner v. Mata, 455 U.S. 591, 597 (1982). See also 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a state court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). However, "the ultimate question as to the constitutionality of the pretrial identification procedures . . . is a mixed question of law and fact" not governed by the statutory presumption of correctness of state court findings of fact. Sumner, 455 U.S. at 597.
This court finds that the trial court properly denied a defense motion to suppress the photographic array containing petitioner's photograph. The trial court and appellate court properly examined the procedure used by the detectives in obtaining pretrial identifications from the witnesses. Similarly, the state courts examined the photograph of petitioner in question and concluded that the bump on his eyebrow was not noticeable. This court is bound by these factual findings. Although the court is not bound by the state courts' ultimate determination that the photographic array was not unduly suggestive, this court, upon denovo review, agrees with the state courts' ultimate conclusion that it was not. Consequently, petitioner's fifth claim should be denied.
6. Claim Six — Pennsylvania's PCRA As A Corrective Process Was Inadequate To Afford Petitioner Due Process Of Law.
Reading petitioner's sixth argument in the broadest sense possible, it appears petitioner contends that PCRA counsel was ineffective for stating in a Finley letter that petitioner's PCRA claims lacked merit and withdrawing from her representation of petitioner. (Petitioner's Mem. of Law Supp. Pet. at 39-45.) Petitioner also contends that the PCRA court erred when it dismissed the PCRA petition without a hearing. Id. at 44-45.
Petitioner contends in his habeas petition that PCRA counsel failed to address in her Finley letter all of the issues he raised in his PCRA petition. (Petitioner's Mem. Supp. Pet. at 41.) A careful review of petitioner's PCRA petition (Response Ex. F) and counsel's Finley letter (Response Ex. G), reveals that PCRA counsel addressed all of the issues petitioner raised in petitioner's PCRA petition and explained in her letter why those issues were meritless.
Petitioner has not exhausted his state court remedies with respect to his sixth claim. He did not raise these issues on appeal from the PCRA court's dismissal of his PCRA petition. Petitioner could raise these issues in a second PCRA petition, however, the time for filing such petition has passed. See 42 Pa. Cons. Stat. Ann. § 9545(b); Whitney v. Horn. 280 F.3d 240, 251 (3d Cir. 2002) ("It is now clear that this one-year limitation is a jurisdictional rule that precludes consideration of the merits of an untimely PCRA petition, and it is strictly enforced in all cases, including death penalty appeals."). Because petitioner cannot now return to the Pennsylvania courts, his unexhausted sixth claim has become procedurally defaulted for purposes of habeas review. This court cannot excuse the procedural default because petitioner has shown neither cause for the default nor that the federal court's failure to consider the claim will result in a fundamental miscarriage of justice.
However, because petitioner's sixth claim clearly lacks merit, the court will address its merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
There is no constitutional right to counsel in a state post-conviction proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987). Consequently, there is no Sixth Amendment right to effective assistance of counsel in state post-conviction proceedings. Tillett v. Freeman. 868 F.2d 106, 108 (3d Cir. 1989); David v. Price. 1998 WL 404546, at *3 (E.D. Pa. July 15, 1998). Because petitioner's ineffective assistance of PCRA counsel claim does not arise under the Constitution or laws of the United States, it is not cognizable under 28 U.S.C. § 2254.
Petitioner also contends that the PCRA court erred when it dismissed the PCRA petition without a hearing. However, Pa. R. Crim. P. 907 permits a judge to dismiss a PCRA petition without a hearing "when the petition and answer show that there is no genuine issue concerning any material fact and that the defendant is entitled to relief as a matter of law."
Pa. R. Crim. P. 907. Moreover, this claim is not cognizable in a federal habeas proceeding since petitioner has "no constitutional right to an evidentiary hearing at the post-conviction level." Jones v. Kyler, 2003 WL 22331773, at *14 (E.D. Pa. July 23, 2003) (RR, Smith, M.J.), approved and adopted by Order, No. 02-9510 (E.D. Pa. Aug. 13, 2003) (VanAntwerpen, J.). No constitutional provision or federal law entitles petitioner to any state collateral review. Pennsylvania v. Finley, 481 U.S. at 557. See Mason v. Myers, 208 F.3d 414, 417 (3d Cir. 2000) (a delay in a collateral proceeding cannot be the basis of a petition for a writ of habeas corpus); Seller v. Ward. 135 F.3d 1333, 1339 (10th Cir.) (habeas petitioner's claim that state court misapplied its own state's post conviction procedure and thereby barred petitioner from opportunity to fully litigate claim did not state a cognizable federal habeas claim because states are not constitutionally required to grant post conviction review), cert. denied. 525 U.S. 1024 (1998). Petitioner's sixth claim should be denied.
Petitioner also appears to argue that he was not permitted to raise all of the issues he wanted to in his PCRA petition. (Petitioner's Mem. Supp. Pet. at 44.) However, the PCRA judge noted in his decision dismissing the PCRA petition, that he sent petitioner a notice that the court intended to dismiss the PCRA petition and afforded him twenty days to file a response. Commonwealth v. Keeling. No. 2660-95, slip op. at 2 (C.P. Mtgy. County May 11, 2001). Even though petitioner did not properly file his response following the procedure sent forth in the notice, the PCRA court nonetheless specifically noted that it considered petitioner's response in rendering its decision. Id. at 2 n. 1. To the extent petitioner wanted to present additional arguments, he clearly had the opportunity to do so.
For all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 23rd day of October, 2003, the court respectfully recommends that the petition for a writ of habeas corpus be DENIED, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003).