Opinion
Civil Action 18-136E
04-26-2021
LORENZO L. MILLS, Petitioner, v. SUPERINTENDENT BARRY R. SMITH, DISTRICT ATTORNEY OF THE COUNTY OF ERIE, PA, and ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
Susan Paradise Baxter District Judge.
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
For the foregoing reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus and Supplement thereto (ECF Nos. 4, 6) be denied and that a certificate of appealability also be denied.
II. REPORT
A. Background
Currently pending before the Court is a Petition for Writ of Habeas Corpus (“Petition”) and Supplement thereto filed by Petitioner Lorenzo L. Mills (“Petitioner”) pursuant to 28 U.S.C. § 2254. (ECF Nos. 4, 6.) Petitioner challenges his judgment of sentence imposed on December 15, 2014, after he pled guilty to robbery at CP-25-CR-0002190-2014 in the Court of Common Pleas of Erie County, Pennsylvania. For this conviction, Petitioner was sentenced to 52 to 104 months of incarceration, and his judgment of sentence was affirmed by the Pennsylvania Superior Court on September 9, 2015. (Resp't Exh. 1, ECF No. 12-1.) Leave to appeal to the Pennsylvania Supreme Court was denied on February 1, 2016. Id.
On or about September 13, 2016, Petitioner filed a petition pursuant to Pennsylvania's Post-Conviction Relief Act (“PCRA”) that was later dismissed by the PCRA court on January 17, 2017. (Resp't Exh. 2, ECF No. 12-2.) An appeal to the Superior Court followed, and, on September 29, 2017, the appellate court affirmed the denial of post-conviction relief. (Resp't Exh. 3, ECF No. 12-3.) Leave to appeal to the Pennsylvania Supreme Court was denied on May 1, 2018. Id.
Petitioner initiated the instant federal habeas proceedings on or about May 11, 2018. (ECF No. 1.) His Petition was docketed on May 22, 2018, and he filed a Supplement thereto on May 24, 2018. (ECF Nos. 4, 6.) Respondents filed their Answer to the Petition on August 6, 2018. (ECF Nos. 11, 12.) Petitioner then filed a Response on November 15, 2018. (ECF No. 16.)
Although docketed as a Supplement, the filing is more appropriately construed as a brief in support of the Petition since it does not advance any additional claims.
The undersigned notes that, according to the DOC's online inmate/parolee locator, Petitioner was paroled from his sentence in July 2019. See http://inmatelocator.cor.pa.gov/#/ParoleeSearchResults (last visited on April 19, 2021).
B. Standard of Review
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal law, ” as the term is used in section 2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000).
The Supreme Court has identified two scenarios where a state court decision will fall into section 2254(d)(1)'s “contrary to” clause. First, a state court decision will be “contrary to” clearly established federal law when the court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). It set forth the following example where a state court decision would be “contrary to” Strickland v. Washington, 466 U.S. 668 (1984), the familiar clearly established federal law governing ineffective assistance of counsel claims.
If a state court were to reject a prisoner's claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be ‘diametrically different,' ‘opposite in character or nature,' and ‘mutually opposed' to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a ‘reasonable probability that . . . the result of the proceeding would have been different.'Williams, 529 U.S. at 405-06 (internal citations omitted). The Supreme Court said that a state court decision will also be “contrary to” clearly established federal law if it “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id. at 406.
The Supreme Court has said that under the “unreasonable application” clause of 28 U.S.C. § 2254(d)(1), a state court decision involves an unreasonable application of Supreme Court precedent “if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.” Williams, 529 U.S. at 407. Under this standard, “a federal habeas court may not grant relief simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. The Supreme Court later expanded on this interpretation of the “unreasonable application” clause explaining that the state court's decision must be “objectively unreasonable, ” not merely wrong; even “clear error” will not suffice. Locklyer v. Andrade, 538 U.S. 63, 75 (2003). “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent Graterford SCI, 677 Fed.Appx. 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[, ] [a] federal court must then resolve the claim without the deference AEDPA otherwise requires.”). Indeed, the Third Circuit recently explained that,
[w]hile a determination that a state court's analysis is contrary to or an unreasonable application of clearly established federal law is necessary to grant habeas relief, it is not alone sufficient. That is because, despite applying an improper analysis, the state court still may have reached the correct result, and a federal court can only grant the Great Writ if it is “firmly convinced that a federal constitutional right has been violated, ” Williams, 529 U.S. at 389, 120 S.Ct. 1495. See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (“[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review . . . none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard”). Thus, when a federal court reviewing a habeas petition concludes that the state court analyzed the petitioner's claim in a manner that contravenes clearly established federal law, it then must
proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote omitted).
The AEDPA further provides for relief if an adjudication “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)(2). Under § 2254(d)(2), a state court decision is based on an “unreasonable determination of the facts” if the state court's factual findings are “objectively unreasonable in light of the evidence presented in the state-court proceeding, ” which requires review of whether there was sufficient evidence to support the state court's factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Within this overarching standard, a petitioner may attack specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play, instructing that the state court's determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).
C. Discussion
1. Claims one through four
The first four claims in the Petition all challenge the trial court's jurisdiction, each appearing to be a variation of the same argument. Essentially, Petitioner argues that, through poor draftsmanship of its constitution in 1776, and through other drafting errors in the later versions of its constitution (which Petitioner contends are invalid to amend or supersede the 1776 constitution anyway), Pennsylvania deprived itself of the power to punish criminal offenses. His specific claims, as set forth in his Petition, appear to be as follows: (1) he was prosecuted under criminal rules of court, procedure and evidence adopted by the Pennsylvania judicial branch in violation of the federal constitution; (2) there is no express state constitutional provision providing Pennsylvania with authority to enact a state crimes code; (3) he was prosecuted under criminal statutes that were legally inoperative upon ratification of the 1968 Pennsylvania constitution since that constitution contained no savings clause; and (4) he was prosecuted under a criminal code that exists in spite of no constitutional provision providing for such code in the 1968 version of the Pennsylvania constitution. (ECF No. 4); see also (ECF No. 6.)
It is noted that in his Supplement, Petitioner's fourth claim appears to be different than what appears in his Petition and more closely resembles that of his first claim in the Petition. Specifically, in his Supplement Petitioner appears to argue that the Pennsylvania Supreme Court violated the doctrine of separation of powers by promulgating rules of court, criminal procedure, and evidence and that the legislature cannot delegate rule-making authority to the judiciary. See (ECF No. 6, pp.8-10.)
It appears that Petitioner raised all of his claims before the Pennsylvania Superior Court on direct appeal and, in a footnote, the appellate court rejected the claims as frivolous based on its holding in Commonwealth v. Stultz, 114 A.3d 865 (Pa. Super. 2015), wherein the Superior Court addressed the same jurisdictional arguments and found them to be meritless. (Resp't Exh. 1, ECF No. 12-1, p.20.) Such a finding amounts to an adjudication on the merits and, as such, this Court must apply deference to the Superior Court's decision under the AEDPA. See Parker v. Angelone, 959 F.Supp. 319, 323 (E.D. Va. Apr. 11, 1997) (“[A] dismissal of a state habeas petition as frivolous qualifies as an adjudication on the merits under 28 U.S.C. § 2254(d).”) Thus, this Court may not grant habeas relief unless Petitioner can show that the Superior Court's adjudication of his claims was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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).
It appears that Petitioner is raising the exact jurisdictional challenges as those raised by the appellant in Stultz.
The habeas statute provides that a federal court cannot entertain a habeas petition on any ground other than that the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Accordingly, the United States Supreme Court has held that federal courts cannot grant habeas relief based on violations of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, in evaluating the ground for relief in a habeas corpus petition, the court is limited to reviewing federal bases for relief. Id. at 68. Additionally, and important here, federal habeas courts lack authority to review alleged violations of state constitutions. See Reinert v. Larkins, 379 F.3d 76, 94 n.4 (3d Cir. 2004) (“[W]e, as a federal court sitting in habeas jurisdiction, would not have the authority to review a violation of the state constitution.”).
Except for his first claim, an apparent federal challenge to Pennsylvania court rules and rules of criminal procedure and evidence, Petitioner's claims are indisputably based on his premise that the Pennsylvania constitution and laws promulgated pursuant to it are invalid, based on state law principles. Petitioner has not alleged that his conviction or imprisonment directly violates any provision of the United States Constitution or laws of the United States and, as such, his claims are non-cognizable as they are based entirely on perceived errors in state law. See, e.g., Solano v. Lamas, No. 3:10-CV-1915, 2014 WL 2567166, at *12 (M.D. Pa. June 6, 2014) (dismissing petitioner's “non-existence of crimes claim” that the crimes of which he was convicted do not exist because the 1968 Pennsylvania constitution does not contain a savings clause); Baenig v. Pitkins, No. 1:10-CV-0114, 2010 WL 2595230, at *6 (M.D. Pa. Apr. 20, 2010), recommendation adopted by, 2010 WL 2595212 (M.D. Pa. June 24, 2010) (finding that similar claim challenging the 1968 Pennsylvania constitution was not a cognizable claim in a federal habeas proceeding); Mitchell v. Pitkins, No. 10-294, 2010 WL 1837833, at *2 (E.D. Pa. Apr. 14, 2010), recommendation adopted by, 2010 WL 1837829 (E.D. Pa. Apr. 30, 2010) (dismissing similar claims challenging defects in 1968 version of Pennsylvania constitution and state criminal code for same reason).
Petitioner does assert in his first claim that he was prosecuted under court rules and criminal rules of procedure and evidence adopted by the judicial branch in violation of the United States Constitution. As noted by the Superior Court in Petitioner's direct appeal, this claim was deemed frivolous based on the court's review of the same claim in Stultz wherein it addressed the claim as follows:
Specifically, Petitioner claims violations of Article I, section 1 (authorizing legislative power in Congress); Article II, section 1 (establishing the positions of President and Vice President); Article IV, section 3, clause 1 (Admissions Clause) and section 4 (Republican Form of Government Clause); Article VI, clause 2 (the Supremacy Clause); and Article VII (relating to ratification).
. . . . The Pennsylvania Constitution has specifically authorized our Supreme Court to promulgate rules governing the practice, procedure, and conduct of all of the courts in the Commonwealth. Pa. Const. Art. V § 10(c); see also Commonwealth v. McMullen, 961 A.2d 842, 847 (Pa. 2008) (“T[he] [Supreme] Court retains exclusive rule-making authority to establish rules of procedure.”). Hence, the legislature did not delegate rule-marking authority, but the people of Pennsylvania, in voting to ratify the amendments to the 1874 Constitution, i.e., the 1968 constitution, specifically authorized the Pennsylvania Supreme Court to craft rules governing court procedures. Since this practice does not violate a specific provision of the federal constitution, this delegation is not improper.
Instantly, it is apparent that Appellant misunderstands the doctrine of separation of powers. While no governmental branch “should exercise the functions exclusively committed to another branch[, ]” Commonwealth v. Melvin, 103 A.3d 1, 14 (Pa. Super. 2014) (quoting Sweeney v. Tucker, 375 A.2d 698, 706 (Pa. 1977)), a constitutional violation does not automatically occur when one governmental branch exercises a power specifically delegated to it. Under Pennsylvania constitutional law, the legislature does not have the authority to pass purely procedural criminal rules. Thus, the Supreme Court's promulgation of such rules does not per se infringe upon the legislature's authority to pass
statutory law. Importantly, nothing in the federal constitution specifically prohibits a state from delegating to its high court the authority to craft procedural or evidentiary rules. Indeed, the Tenth Amendment provides that the powers not delegated to the federal government and not specifically prohibited from the states by the Constitution are reserved to the people and the states. See U.S. Const. Am. X.
Appellant's reliance on the Republican Form of Government Clause, Supremacy Clause, and various other provisions within the federal constitution is misplaced. Nothing within the clauses cited by Appellant expressly or impliedly prohibits a state from authorizing its supreme court to adopt procedural and evidentiary rules. The Supremacy Clause does not prohibit citizens of a state from making or passing state constitutional law. Where the federal constitution prohibits specific state action, it sets forth the prohibition in clear “No State shall” language. U.S. Const. Art. I, § 10; U.S. Const. Am. XIV. Nowhere does the federal constitution provide that the citizens of a state do not have the power to create a state constitution that delegates the drafting of criminal procedural rules or evidentiary rules to the courts. While a state cannot pass a law that violates the federal constitution, the federal constitution has always allowed states broad authority to pass state constitutions and state law.
Indeed, early Pennsylvania case law recognized the power of a court to create rules even absent an express constitutional provision. Barry v. Randolph, 3 Binn. 277, 278 (Pa. 1810) (Chief Justice Tilghman writing, “Every court of record has an inherent power to make rules for the transaction of its business, provided such rules are not contradictory to the law of the land.”); Id. (Justice Yeates opining, “courts must necessarily have the power of framing such rules, as they think best calculated to carry the laws into execution with convenience and despatch.”); Vanatta v. Anderson, 3 Binn. 416, 423 (Pa. 1811) (it is not denied that [the courts] have power from the nature of the constitution, to make rules for the relation of their practice.”); Snyder v. Bauchman, 8 Serg. & Rawle 336, 338-339 (Pa. 1822) (“Without this [rule-making] power it would be impossible for Courts of justice to dispatch the public business. Delays would be interminable, and delay not unfrequently is the object of one of the parties. Every Court, therefore, must have stated rules to go by, and they are the properest judges of their own rules of practice.”).
While the courts and legislature shared rule-making functions during this Commonwealth's early years, it is obvious that the separation of powers doctrine did not prohibit courts from enacting procedural rules. Further, besides Pennsylvania, numerous other states have either judicially decided or by constitution provided that procedural rule-making is exclusively a function of the judiciary. Other states' courts and legislature share power over making such rules, or the legislature has enacted law delegating such authority to the courts. For all the aforementioned reasons, Appellant's position fails.Stultz, 114 A.3d at 877-879 (footnotes omitted).
The Superior Court in Stultz carefully explained why the Pennsylvania Supreme Court's promulgation of rules governing the practice, procedure and conduct of all court proceedings in Pennsylvania does not violate federal law, and, to the extent the Superior Court in Petitioner's direct appeal relied on its reasoning in Stultz when it found this claim to be frivolous, Petitioner has simply not demonstrated that the state court's adjudication was contrary to or involved an unreasonable application of federal law or was an unreasonable determination of the facts in light of the evidence presented. As such, these claims should therefore be denied.
2. Claim five
In Petitioner's fifth claim he argues that the trial court illegally imposed court costs and fines in violation of his right to due process. Specifically, Petitioner claims that the court was required to conduct a hearing to assess his ability to pay these court costs and fines before imposing them at sentencing. Petitioner raised this claim in his PCRA petition and on appeal from the dismissal thereof. Said claim was construed as a challenge to the legality of Petitioner's sentence, and, after citing the applicable state law, specifically Pa.R.Crim.P 706, and related statutes, the Pennsylvania Superior Court found no merit to the claim because in Pennsylvania a hearing on a defendant's ability to pay is not required at the time that costs are imposed. Rather, a hearing is only required in the event that a defendant fails to make payment as ordered. See Resp't Exh. 3, ECF No. 12-3, pp.58-59 (citing Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013).
Although the United States Supreme Court has never specifically addressed the situation presented in this claim whereby a criminal defendant claims entitlement to a hearing on his ability to pay court costs before a court imposes them at sentencing, it has considered challenges to several state recoupment statutes. Specifically, in James v. Strange, 407 U.S. 128 (1972), the Supreme Court found unconstitutional a Kansas recoupment statute that permitted the state to recoup court-appointed attorney and other legal defense fees without permitting the defendant to raise any of the defenses permitted to other civil judgments. Most importantly, the recoupment provision did not permit the defendant to defend the execution of the recoupment based on an inability to pay. Id. at 135-36. As a consequence, the Court found that the Kansas statute violated the Equal Protection Clause.
In Fuller v. Oregon, 417 U.S. 40 (1974), the Supreme Court considered whether an Oregon recoupment statute could constitutionally require a convicted defendant “to repay the [s]tate the costs of providing him with effective representation of counsel, when he is indigent at the time of the criminal proceeding[, ] but subsequently acquires the means to bear the costs of his legal defense.” Id. at 41. The Fuller Court distinguished the Oregon statutory model from the one at issue in James and held that unlike the Kansas statute, Oregon treated debt for court-appointed attorney fees the same as other civil judgments, allowing the same exemptions to collection and therefore “free of the kind of discrimination that was held in James v. Strange to violate the Equal Protection Clause.” Id. at 47-48. In addition, unlike in James, the Oregon statute was not mandatory and required the trial court to consider at sentencing the defendant's future ability to pay. Id. at 45-46. Based on these distinctions, the Court upheld the constitutionality of the Oregon recoupment scheme.
In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court again considered a state attempt to recoup court-appointed attorney fees and held that absent a finding of intentional failure to pay or other fault by the probationer, a sentencing court may not revoke an indigent defendant's probation because he is unable to pay his court-ordered debt. Id. at 672-73.
Neither James, Fuller or Bearden endorse a single model for state recoupment of court-imposed costs and fees. Although the Fuller Court held the Oregon scheme constitutional, and that scheme required a presentence determination of future ability to pay, nothing in Fuller suggests that a presentence determination or hearing is constitutionally mandatory. Indeed, the Pennsylvania Superior Court has concluded that “Fuller compels a trial court only to make a determination of an indigent defendant's ability to render payment before he/she is committed[, ]” and held that Pa.R.Crim.P. 706 “is an adequate procedural tool . . . and satisfies the constitutional requirements of Fuller, by ensuring that an indigent will be afforded an opportunity to prove his financial inability to pay the costs of prosecution before being sentenced to prison.” Commonwealth v. Hernandez, 917 A.2d 332, 336, 337 (Pa. Super. 2007). The Superior Court's determination that the trial court was not required to conduct a hearing to assess Petitioner's ability to pay costs before sentencing was an entirely reasonable application of established Supreme Court precedent. As the state court's adjudication was neither contrary to nor involved an unreasonable application of federal law, nor was it an unreasonable determination of the facts in light of the evidence presented, this claim should be denied.
3. Claim six
In Petitioner's sixth claim, he argues that the court set excessive bail in violation of the Eighth Amendment and that his trial counsel was ineffective for failing to challenge the amount of his bail as unconstitutional. First, to the extent Petitioner is challenging his pre-trial bail as excessive in violation of the Eighth Amendment, this claim is moot because Petitioner has already been convicted. See Bilal v. Hadi, No. 3:06CV224, 2006 WL 3201324, at *2 (N.D. Fl. Nov. 2, 2006) (citing cases). Second, to the extent Petitioner is arguing that his trial counsel was ineffective for failing to challenge Petitioner's bail as unconstitutionally excessive, the claim is procedurally defaulted as it appears Petitioner never raised the claim in the state courts. In this regard, the provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. This “exhaustion” requirement is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). See also O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A petitioner shall not be deemed to have exhausted state remedies if he has the right to raise his claims by any available state procedure. 28 U.S.C. § 2254(c).
In order to exhaust a claim, a petitioner must “fairly present” it to each level of the state courts. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citing 28 U.S.C. § 2254(b)); O'Sullivan, 526 U.S. at 848. In Pennsylvania, this requirement means that a petitioner in a noncapital case must have presented every federal constitutional claim raised in his habeas petition to the Common Pleas Court and then the Superior Court either on direct or PCRA appeal. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). The petitioner must demonstrate that he raised the claim in the proper state forums through the proper vehicle, not just that he raised a federal constitutional claim before a state court at some point. O'Sullivan, 526 U.S. at 845 (a petitioner must have presented a claim through the “established” means of presenting a claim in state court at the time); Ellison v. Rogers, 484 F.3d 658, 660-62 (3d Cir. 2007) (the petitioner's claims of ineffective assistance were not exhausted properly even though he had raised those claims on direct review, because state law required that ineffective assistance claims be raised in state post-conviction review, and the petitioner had not sought such review). Additionally, in order to “fairly present” a claim in the state courts to satisfy the exhaustion requirement, “[b]oth the legal theory and the facts on which a federal claim rests must have been presented to the state courts.” Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986) (citing Picard v. Connor, 404 U.S. 270, 277 (1971)). “This requires that the claim brought in federal court be the substantial equivalent of that presented to the state court.” Id.
“When a claim is not exhausted because it has not been ‘fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.'” McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (quoting 28 U.S.C. § 2254(b)). In such cases, however, applicants are considered to have procedurally defaulted their claims, Rolan v. Coleman, 680 F.3d 317 (3d Cir. 2012) (“Procedural default occurs when a claim has not been fairly presented to the state courts . . . and there is no additional state remedies available to pursue . . . or, when an issue is properly asserted in the state system but not addressed on the merits because of an independent and adequate state procedural rule . . . .), and federal courts may not consider procedurally defaulted claims unless “the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To show cause, a petitioner must demonstrate “some objective factor external to the defense” that prevented compliance with the state's procedural requirements. Id. at 753 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime, McCleskey v. Zant, 499 U.S. 467, 494 (1991), by presenting new evidence of innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995).
In this case, Petitioner's claim that his trial counsel was ineffective for failing to challenge Petitioner's pre-trial bail as unconstitutionally excessive is procedurally defaulted now that Petitioner is prohibited by time limitations from going back and raising such a claim in a PCRA petition. Furthermore, Petitioner has not argued, much less demonstrated, the application of either exception to the procedural default rule. Accordingly, this claim is not subject to federal habeas review.
4. Claim seven
Finally, in Petitioner's seventh claim he argues that his PCRA counsel was ineffective for failing to file motions on his behalf, disregarding his wishes and ignoring his correspondence. This claim is expressly prohibited by 28 U.S.C. § 2254(i), which provides: “[t]he ineffectiveness of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” See also Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings . . . [c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”) (internal citations omitted). Accordingly, this claim is not cognizable on federal habeas review.
D. Certificate of Appealability
AEDPA provides that an appeal may not be taken to the court of appeals from a final order in a section 2254 proceeding unless a judge issues a certificate of appealability on the ground that “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner has not made the requisite showing in this case. Accordingly, a certificate of appealability should be denied.
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus and Supplement thereto (ECF Nos. 4, 6) be denied and that a certificate of appealability also be denied.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.