Opinion
Civil Action No. 04-3157.
September 14, 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 Curran-Fromhold Correctional Facility, here in Philadelphia. For the reasons that follow, I recommend that the petition be dismissed.
FACTS AND PROCEDURAL HISTORY:
On September 4, 2002, after a jury trial before the Honorable Pamela Dembe, Miles was convicted of burglary and theft. Judge Dembe sentenced Miles to 5-10 years' imprisonment, to be followed by a five year probationary term. Miles, who had appeared pro se at trial, filed a timely appeal. On appeal, Miles presented thirteen issues. The Superior Court found all but one of Miles' claims waived. However, with regard to Miles' challenge to the legality of his sentence, the Superior Court found that the trial court erred in imposing a separate probationary sentence for the theft conviction. Thus, the Superior Court affirmed the burglary conviction, but vacated the judgment of sentence for theft. The case was remanded for resentencing. Miles filed a timely petition for allocatur. On June 29, 2004, the Supreme Court of Pennsylvania denied allocatur. Commonwealth v. Miles, 671 EAL 2003.
On July 6, 2004, Miles filed this petition for habeas corpus. In his petition, Miles presents the thirteen issues he presented in his direct appeal (Claims 2-5 and 7-15) and includes two new claims:
1. The verdict was against the weight of the evidence;
2. The prosecutor improperly referred to the defendant's failure to testify;
3. Petitioner was denied the right to counsel and stand-by counsel was ineffective in failing to conduct investigation, discovery, and failing to turn over discovery materials to the Petitioner;
4. The trial court erred in conducting another trial at the same time the jury in Petitioner's case was deliberating;
5. The trial court erred in failing to give a cross-racial identification jury instruction;
6. The witness's identification testimony was unreliable and inconsistent with other testimony;
7. The trial court erred in failing to grant a judgment of acquittal when there was insufficient evidence;
8. The trial judge erred by entering the jury room while the jury was deliberating;
9. The public defender attempted to badger and harass the Petitioner into a guilty plea;
10. The trial court erred in denying Petitioner the right to be present at arraignment;
11. The Clerk of Court erred in failing to docket pro se filings;
12. The Petitioner's right to a speedy trial was violated;
13. The Court erred in failing to advise Petitioner that he must file any appeal through the Public Defender's Office;
14. The Criminal Appeals Unit erred in failing to file Petitioner's Notice of Appeal, instructing him that his issues were unappealable, and sending a copy to the trial judge;
15. The trial court erred in imposing a sentence on a lesser included offense.DISCUSSION: A. Non-cognizable claim
Miles' first claim is not cognizable in habeas corpus. The federal court has no power to grant habeas relief based on a claim that the conviction is against the weight of the evidence.See Tibbs v. Florida, 457 U.S. 31, 42-45 (1982); Smith v. Vaughn, 1997 WL 338851 *8 (E.D. Pa. June 17, 1997). A challenge to the weight of the evidence requires an assessment of the credibility of the evidence presented at trial. The federal court, however, is bound by the credibility determinations made at trial. See Demosthenes v. Baal, 495 U.S. 731, 735 (1983) (citing Marshall v. Lonberger, 459 U.S. 422 (1983) ("weight of the evidence refers to a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other").
B. Unexhausted Claim
Miles' sixth claim, regarding unreliable witness identification, was not presented to the Superior Court in his direct appeal. Thus, it is unexhausted for purposes of habeas corpus. Absent unusual circumstances, in order for a claim to provide a basis for habeas relief, the petitioner must comply with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). This requires the petitioner to give the state courts a fair opportunity to address his allegations of error. If the petitioner has any available avenue through which to present his claims to the state courts, he will not be deemed to have exhausted his state court remedies. 28 U.S.C. § 2254(c).
Here, Miles has yet to present his witness identification claim to the state courts. However, he does still have an avenue through which to do so — the Post Conviction Relief Act. Therefore, this claim is unexhausted and we will recommend that the petition be dismissed. C. Procedural Default
The bulk of Miles' claims are procedurally defaulted. When a petitioner fails to comply with state procedural rules governing appeal and is foreclosed from obtaining review of the claim as a result, the claim is procedurally defaulted.
[I]f 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, federal habeas review is foreclosed unless there is cause and prejudice or a showing of innocence.Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996) (citingColeman v. Thompson, 501 U.S. 722, 750 (1991).
Here, the Superior Court found that six of Miles' claims were waived because he failed to include them in his "Statement of Matters Complained of on Appeal," as required by Pennsylvania Rule of Appellate Procedure 1925(b).
Under Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) and its progeny, any issue not raised before the lower court in a Rule 1925(b) statement is deemed waived on appeal. Six of the thirteen issues presently before us must be waived for failure to raise them in the concise statement.Commonwealth v. Miles, 3398 EDA 2002, at 4-5. The Superior Court concluded that Miles had failed to present the following claims in his 1925(b) Statement: (a) the challenge to the sufficiency of the evidence (Claim 7); prosecutorial misconduct (Claim 2); error in the jury instructions (Claim 5); court's conducting simultaneous trials (Claim 4); allegation of judicial impropriety (Claim 8); and ineffective counsel for suggesting Petitioner accept a guilty plea (Claim 9).
Specifically, Rule 1925(b) states:
(b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.
The Superior Court also found an additional six claims were waived. Although Miles included them in his 1925(b) statement, the Court found that the allegations were vague and rambling. Thus, the trial court was denied the opportunity to meaningfully review these additional claims.
Although the remaining seven issues on appeal seem to have been included in appellant's Rule 1925(b) statement, we find that six of those issues must be similarly waived as the trial court could not decipher appellant's vague and rambling statement and was merely guessing at what precisely it was that he was complaining about. "[A] Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all." Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.Super. 2002) (citing Commonwealth v. Dowling, 779 A.2d 683, 686 (Pa.Super. 2001)).Commonwealth v. Miles, 3398 EDA 2002, at 5.
Based on this reasoning, the Superior Court found the following claims waived, as well: ineffective counsel for denying the defendant discovery materials (Claim 3); denial of the right to appear at arraignment (Claim 10); failure of the Clerk to file paperwork (Claim 11); defendant was denied a speedy trial (Claim 12); failure of the Court to advise defendant that a notice of appeal had to be filed by the public defender (Claim 13); the criminal appeals unit failed to file defendant's notice of appeal and advised him his issues were unappealable (Claim 14).
Here, the Superior Court refused to address the merits of these twelve claims based on Petitioner's failure to properly present the claims in his Matters Complained of on Appeal. In order to provide the basis for a procedural default, the state procedural rule upon which the state court relied must be independent of the federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991). Clearly, Rule 1925(b) is independent of federal law. In order to be considered adequate, the state rule of procedure must be firmly established and regularly followed at the time of the alleged default. Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)); Doctor v. Walters, 96 F.3d 675, 686 (3d Cir. 1996).
After reviewing the state law at the time of Miles' default — late in 2002, the state law clearly required that all appealable issues be presented in the Statement of Matters Complained of on Appeal. In October, 1998, the Supreme Court of Pennsylvania stated:
from this day forward, in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.Commonwealth v. Lord, 553 Pa. 415, 420 (1998).
Similarly, at the time of Miles' default, the state court had determined that "a Concise Statement that is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all."Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.Super. 2002) (citingCommonwealth v. Dowling, 779 A.2d 683, 686 (Pa.Super. 2001)). Thus, the Superior Court's decision, finding these twelve claims waived was an independent and adequate state ground, constituting a procedural default in the federal court.
Such a default may be excused only upon a showing of cause for the default and prejudice resulting, therefrom, or that a failure to consider the claim will result in a fundamental miscarriage of justice. Sistrunk, 96 F.3d at 673. Miles has failed to supply either. He does not explain his failure to properly present the claims and does not supplement the claims with any showing of factual innocence as is necessary to establish a fundamental miscarriage of justice. McCleskey v. Zant, 499 U.S. 467, 495 (1991) (citing Kuhlmann v. Wilson 477 U.S. 436, 454 (1986)). Therefore, the defaults will not be excused.
D. Remaining Claim
Finally, Miles claims that the state court erred in imposing sentences on both burglary and theft. The Superior Court determined that, in fact, the trial court did err in sentencing Miles. Pennsylvania law provides that "[a] person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree." 18 Pa.C.S.A. § 3502(d). In Miles' case, the theft of which he was convicted was a misdemeanor, not a felony. Thus, the sentence imposed on the theft conviction had to be vacated, which the Superior Court has already done. Because Miles has already obtained relief on this claim in the state court, it is now moot.
Miles has yet to be resentenced because he sought allocatur in the Pennsylvania Supreme Court.
E. Conclusion
Miles presents this court with one, viable, unexhausted claim — the witness identification claim. The remainder of his petition is either not cognizable, procedurally defaulted because he failed to follow the state rules of appellate procedure, or moot because he has already achieved success in the state system. He has an avenue through which to present his one unexhausted claim to the state courts. Therefore, we will recommend that the petition be dismissed.
For the above stated reasons, I make the following:
RECOMMENDATION
AND NOW, this 14th day of September, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be dismissed. 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 DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.