Opinion
Civil Action No. 02-7473.
May 13, 2004
REPORT AND RECOMMENDATION
Presently before this court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. Wilman Pulido ("Petitioner") currently is incarcerated at the State Correctional Institution at Rockview, Pennsylvania. Petitioner seeks habeas relief based on claims of ineffective assistance of counsel. The Honorable Harvey Bartle, III, referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, it is recommended that Petitioner's habeas petition be denied without an evidentiary hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts in this background and procedural history were gleaned from Petitioner's Petition for Writ of Habeas Corpus, its brief in support, inclusive of all exhibits thereto, Petitioner's subsequent filings, the Commonwealth's Answer, also inclusive of its exhibits, and the state court record.
The Pennsylvania Superior Court summarized the facts leading up to Petitioner's murder conviction as follows:
On February 14, 1992, at approximately 9:30 p.m. near the corner of Haldeman and Tomlinson Avenue, Philadelphia, Pennsylvania, Christopher Slimbock and George Hergheleqiue were shot and killed while riding in Mr. Slimbock's car.
Joseph Casile, George Moreno, [Petitioner] and John Mullen conspired to murder the decedents. This conspiracy began on February 12, 1992, after Slimbock and Hergheleqiue beat up Casile and took ten pounds of marijuana from him.
[On the evening of February 14, 1992] Moreno and [Petitioner], picked up Mullen at his house in [a] Cadillac owned by Angelina Davis. Mullen drove to the Steak and Ale Restaurant. The plan was to murder [Slimbock and Hergheleqiue] as they walked out the door. However, when the men walked out and got into Slimbock' car and drove away, Moreno and [Petitioner] were not in position to shoot. Therefore, the three of them in the Cadillac followed Slimbock and Hergheleqiue to the corner of Haldeman and Tomlinson Avenue where they fired several 9 MM rounds in the other car. Both Slimbock and Hergheleqiue were pronounced dead at the scene. Subsequently, Castile met with the three men and thanked them for him.Commonwealth v. Pulido, No. 2061, Slip Op. at 2, 790 A.2d 342 (Pa.Super.Ct. Oct. 12, 2001). See also Commonwealth v. Pulido, No. 882, Phila. 1998, Slip op. at 1-3, 742 A.2d 1150 (Pa.Super. 1999) (unpub. mem.) Following a jury trial, on June 29, 1994, Petitioner was found guilty of two counts of third degree murder and a single count each of conspiracy and possession of an instrument of crime. See Commonwealth v. Pulido, No. 9212-1326/1320 at 4 (Ct. Com. Pl. Phila. Cty., Jan. 20, 1995). Post-verdict motions were filed and denied; on October 27, 1994, the Honorable John J. Poserina, Jr., sentenced Petitioner to an aggregate term of imprisonment of twenty (20) to forty (40) years. See id.
Petitioner, on direct appeal, alleged that the Commonwealth had not presented sufficient evidence to establish that he had acted with malice to sustain his third degree murder verdicts. Id. The Superior Court, on January 31, 1996, affirmed the judgment of sentence and Petitioner did not appeal further. See Commonwealth v. Pulido, 450 Pa. Super. 717, 676 A.2d 285 (1996).
On January 14, 1997, Petitioner did file a pro se motion for post-conviction relief under the Pennsylvania Collateral Relief Act ("PCRA"), 42 Pa.C.S. § 9541, et seq. See Commonwealth v. Pulido, Slip op. at 3, 790 A.2d 342 (Pa.Super.Ct. Oct. 12, 2001). On June 5, 1997, appointed counsel amended this petition. See Respondent's Brief ("Resp.") at 1. Petitioner alleged:
1. Trial counsel was ineffective for failing to file and litigate a motion to suppress physical evidence seized from a vehicle in which he was driving at the time of his arrest;
2. Trial counsel was ineffective for failing to call, at trial, character witness on his behalf;
3. Trial counsel was ineffective for stipulating to his character without obtaining approval for such a stipulation;
4. Trial counsel was ineffective for failing to object to the court's instruction regarding prior inconsistent statements of witnesses;
5. Trial counsel was ineffective for failing to object to misleading jury instructions given by the trial court regarding deliberation on those charges that the jury had not yet reached a verdict;
6. Trial counsel was ineffective for failing to object to improper polling of the jury by the trial court;
7. Trial counsel was ineffective for failing to object to the trial court's failure to record the verdicts prior to proceeding a sentence hearing;
8. The trial court erred in its instructions to the jury regarding prior inconsistent statements;
9. Upon learning that the jury had reached verdicts on only two co-defendants, the trial court erred in instructing the jury to return and deliberate only with respect to the one remaining charge;
10. The trial court erred in failing to direct an individual jury poll with respect to the charges against Petitioner; and
11. The trial court erred in failing to record the verdicts.See Petitioner's Mem. of Law in Support, June 5, 1997. By order dated June 12, 1998, the PCRA court dismissed the petition. See Commonwealth v. Pulido, No. 1320-1327, Order (Ct. Com. Pl. Phila. Cty., June 12, 1998).
On July 28, 1999, the Superior Court reversed the order of the PCRA court and remanded Petitioner's case for an evidentiary hearing on two claims of ineffective assistance of counsel: (a) the language used to poll the jury, after it returned a verdict was vague, and (b) trial counsel was ineffective for failing to object to the manner of polling. See Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 3. The Superior Court failed to address Petitioner's other allegations of error. See Petitioner's Concise Statement of Matters for Appeal, (Ct. Com. Pl. Phila. Cty., April 17, 1998).
Dismissal followed the evidentiary hearing held on June 19, 2000. See Commonwealth v. Pulido, Findings of Fact, (Ct. Com. Pl. Phila. Cty., June 19, 2002); see also Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 3. The PCRA Court concluded that Petitioner's underlying claim of ineffectiveness lacked merit, because (1) trial counsel had a reasonable basis for not asking that the jury be re-polled, and (2) the language used to poll the jury, viewed in context, was not vague. See Commonwealth v. Pulido, Findings of Fact, at 3. (June 19, 2000). Petitioner appealed to the Superior Court on June 30, 2000. See Docket Sheet, (Ct. Com. Pl. Phila. Cty.)
Petitioner raised nine issues on appeal:
(1) Trial counsel was ineffective for failing to properly litigate a motion to suppress in connection with the search and seizure of the vehicle in which he was traveling;
(2) Trial counsel was ineffective for failing to call character witnesses on his behalf when such witnesses were available to available to testify;
(3) Trial counsel was ineffective for failing to object to the court's instruction regarding the manner in which the jury was to view prior inconsistent statements;
(4) Trial counsel was ineffective for failing to object to misleading jury instructions regarding re-deliberations on charges on which the jury was unable to reach a verdict;
(5) Trial counsel was ineffective for failing to object to the court's polling of the jury with respect to all defendant's simultaneously an in failing to direct that the jurors be polled individually with respect to charges against Petitioner;
(6) Trial counsel was ineffective for failing to object to the improper, misleading and confusing manner in which the jury was polled following the verdict;
(7) The trial court erred in failing to record the verdicts following the polling of the jury and in proceeding to a sentencing hearing in the absence of a recorded verdict;
(8) The trial court erred in its instruction to the jury concerning prior inconsistent statements of trial witnesses when it instructed the jury that its only choices were to believe either the witnesses' trial testimony or prior statement; and
(9) The trial court erred in instructing the jury to return and deliberate only with respect to the remaining charge after the jury returned to the courtroom and indicated that they had reached verdicts with respect to all of the charges except one murder charge.See Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 4-5.
On October 21, 2001, the Superior Court affirmed the dismissal and the state Supreme Court denied allocator on June 19, 2002. See Commonwealth v. Pulido, 803 A.2d 734 (Pa. 2002).
On September 20, 2002, Petitioner timely filed the instant Petition for Writ of Habeas Corpus alleging that:
Ground (1) Trial counsel was ineffective for failing to litigate a motion to suppress physical evidence obtained in connection with the illegal search of vehicle Petitioner was driving at the time of his arrest;
Ground (2) Trial counsel was ineffective for failing to call character witnesses on behalf of Petitioner, when such witnesses were available to testify on his behalf;
Ground (3) Trial counsel was ineffective for failing to object to the court's instruction to the jury that it's only two choices were to believe either prosecution's witnesses' prior inconsistent statements or trial testimony;
Ground (4) Trial counsel was ineffective for failing to object to trial court's improper, confusing, and misleading jury instructions, when it told the jury to return to deliberations only on the remaining Petitioner's co-defendant charge;
Ground (5) Trial counsel was ineffective for failing to object to trial court's polling of the jury with respect to all of the defendants simultaneously and to re-assert to trial court his request to have the jury polled individually only with respect to the verdict reached against Petitioner before any further deliberations;
Ground (6) Trial counsel was ineffective for failing to object to trial court's crier confusing, improper and misleading manner in which the jury was polled following the complete verdicts reached against Petitioner's co-defendants and Petitioner;
Ground (7) Trial court erred in failing to record the verdicts following the polling of the jury and in proceeding to a sentencing hearing in [the] absence of a recorded verdict;
Ground (8) Trial court erred in instructing the jury that it's only two choices were to believe either [the] prosecution's witnesses' prior inconsistent statements or trial testimony;
Ground (9) Trial court erred in its improper, confusing and misleading jury instructions, when it told the jury to return to deliberations only on the remaining Petitioner's co-defendant charge; and
Ground (10) Trial court erred in polling the jury with respect to all of the defendants simultaneously and in not having the jury polled individually with respect to the verdict reached against Petitioner when his trial counsel requested it.See Pet. at 5-6. Additionally, Petitioner cites twenty (20) ineffective assistance of PCRA counsel claims, herein referred to as Grounds eleven (11) through thirty (30). See Pet. at 7-9. The Commonwealth contends, and this court finds, that Petitioner's thirty habeas claims are either unexhausted, procedurally defaulted, non-cognizable, or meritless.
II. DISCUSSION
A. EXHAUSTION AND PROCEDURAL DEFAULT
A petition for habeas corpus is a final effort to obtain relief when other legal remedies are foreclosed. Therefore, a district court may consider and grant habeas corpus relief only if Petitioner meets his burden of proving that he has either exhausted all state remedies available to him with respect to each discrete allegation or is excused from doing so. See 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3rd Cir. 1993), aff'd. 30 F.3d 1488 (3rd Cir. 1994) (citations omitted). A claim is exhausted if it has been "fairly presented" once to the state's trial court, intermediate appellate court, and highest court. 28 U.S.C. § 2254(b); Evans v. Court of Common Pleas, Delaware County, Pennsylvania, 959 F.2d 1227, 1230-31 (3rd Cir. 1992) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)). The fair presentation requirement is met when the claim presented in the state court is the "substantial equivalent" of the claim asserted in the petitioner's federal habeas petition. See Picard, 404 U.S. at 278. See also Lesko v. Owens, 881 F.2d 44, 50 (3rd Cir. 1989) (citing Picard), cert. denied 110 S.Ct. 759 (1990); Bisaccia v. Atty. Gen. of N.J., 623 F.2d 307, 310 (3rd Cir. 1980) (quoting Picard), cert. denied, 101 S.Ct. 622 (1980).
The exhaustion requirements of 28 U.S.C. § 2254 provide:
(b)(1) 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 unless it appears that
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedures, the question presented.
When an issue is unexhausted and further direct or collateral review in state court is foreclosed, the claim is deemed procedurally defaulted for purposes of federal review. See Coleman v. Thompson, 501 U.S. 722, 735n. 1 (1991); 28 U.S.C. § 2254(b)(1)(A); 42 Pa.C.S. § 9544(a)-(c). This court will dismiss a procedurally defaulted claim unless Petitioner demonstrates both "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law," or that the court's failure to consider the claims will result in a "fundamental miscarriage of justice."
Collateral attack pursuant to the Pennsylvania Collateral Relief Act ("PCRA"), 42 Pa.C.S. § 9541, et seq. requires that 1) a claim has not been previously litigated or waived and 2) the previous failure to raise the issue was not the result of any rational, strategic or tactical decision by counsel. 42 Pa.C.S. § 9543(a)(3)-(4). An issue is previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue" or "it has been raised and decided in a proceeding collaterally attacking conviction or sentence." 42 Pa.C.S. § 9544(a)(2)-(3). An issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post conviction proceeding. 42 Pa.C.S. § 9544(b).
"Cause" sufficient to excuse procedural default requires a showing that some objective factor, outside of counsel or Petitioner's control, prevented compliance with state procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Caswell v. Ryan, 953 F.2d 853, 862 (3rd Cir. 1992), cert. denied, 504 U.S. 944 (1992). "Actual prejudice" occurred if an error caused Petitioner "actual and substantial disadvantage." U.S. v. Frady, 456 U.S. 152, 170 (1972). The burden of proof falls on Petitioner to establish both cause for the default and prejudice resulting therefrom. See Teague v. Lane, 489 U.S. 288, 298 (1989); Coleman, 501 U.S. at 754; Caswell, 953 F.2d at 962. Fundamental injustice has been defined to encompass instances in which newly discovered evidence makes it "more likely than not" that a reasonable juror would find a petitioner not guilty. See Coleman, 501 U.S. at 750; Schlup v. Delo, 513 U.S. 298 (1995); see also Caswell, 953 F.2d at 857.
B. EXHAUSTED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS — GROUNDS (2) THROUGH (6)
1. STANDARD OF REVIEW
Plaintiff raises five properly exhausted ineffective assistance of counsel claims, Grounds (2) through (6), that will be reviewed on their merits. 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 Supreme Court of the United States, in Williams v. Taylor, 529 U.S. 362 (2000), discussed the analysis required by § 2254(d)(1):
[Under the "contrary to" clause] a federal habeas court may grant the writ 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. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1498. The Third Circuit Court, consistent with the Williams v. Taylor interpretation, has set forth in Marino v. Superintendent, SCI-Albion, 171 F.3d 877 (3rd Cir. 1999), cert. denied 528 U.S. 824 (1999), a two tier approach to determining § 2254(d)(1) issues:
First, the federal habeas court must determine whether the state court decision was "contrary to" Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only if the petitioner shows that "Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." O'Brien [ v. Dubois], 145 F.3d [16], 24-25 [(1st Cir. 1998]. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an "unreasonable application" of Supreme Court precedent; that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified. If so, then the petition should be granted.Id. at 891. The phrase "clearly established Federal law," as the term is used in Section 2254(d)(1), is restricted "to holdings, as opposed to the dicta of [United States Supreme Court] decisions as of the time the relevant state-court decision." Williams, 529 U.S. at 365. Under the "reasonable application" clause,
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. 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). State factual determinations, presumptively correct, may be rebutted only upon presentation of clear and convincing evidence. See 28 U.S.C. § 2254(c)(1).
2. STRICKLAND STANDARD
Petitioner contends that trial and/or appellate counsel were ineffective for various reasons. To prevail on these claims that involve a mixed question of fact and law, Petitioner must meet the two-pronged federal constitutional standard established in Strickland v. Washington, 466 U.S. 668 (1984). See Hess v. Mazurkiewicz, 135 F.3d 905 (3rd Cir. 1998).
First, Petitioner must demonstrate that counsel's performance was so deficient as to fall below an objective standard of "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. This requires a showing that counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. In assessing an attorney's performance, every effort must be made "to eliminate the distorting effects of hindsight," reconstruct the circumstances of counsel's conduct, and evaluate the conduct from counsel's perspective at the time. Id. at 689. Furthermore, the court must indulge a strong presumption that the attorney's conduct fell within the wide range of reasonable professional assistance. See id. In other words, Petitioner must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. (citing Michel v. La., 350 U.S. 91, 101 (1955)).
After having adequately established that counsel's performance was constitutionally deficient, Petitioner must further show that the deficient representation prejudiced his defense. This requires proof that "counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." Id.; Kramm v. U.S., 1996 WL 705962 at *4 (E.D. Pa. Dec. 2, 1996). With respect to prejudice, Petitioner must demonstrate a "reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Strickland, 499 U.S. at 695. A reasonable doubt is a probability sufficient to undermine confidence in the outcome, but is less than a preponderance of the evidence. See id. at 693. If Petitioner fails to satisfy either prong of Strickland, his claim necessarily fails, thus, rendering inquiry into the prejudice prong unnecessary. See id. at 697.
3. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS GROUNDS(2) THROUGH (6) a. Failure to call character witnesses on Petitioner's behalf (Ground 2)
Petitioner asserts that his attorney failed to inform or consult him regarding use of character evidence at trial. Pet. at 15. The Superior Court followed the Pennsylvania Supreme Court's decision in Commonwealth v. Speight, 544 Pa. 451, 464, 677 A.2d 317, 323 (1996), in reaching its decision. The Speight court held that
[i]n order to establish that counsel is ineffective for failing to call witnesses, appellant must show, in addition to meeting the general standard to establish ineffective assistance of counsel, that the witnesses existed, were available and willing testify on appellant's behalf; that counsel knew of or should have known of the existence of the witnesses; and that appellant was prejudiced by the absence of the testimony which would have been offered.Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 10. The Court also noted that counsel's decision will not be deemed ineffective even when character witnesses are known, but not called upon, so long as a reasonable basis existed for not calling them. See id. (citing Commonwealth v. Mickens, 597 A.2d 1196, 1203 ( Pa. Super. 1991)). Applying these standards, the Superior Court found that, because the evidence showed that Petitioner and co-defendant George Moreno fired into the victim's car, causing his death,
the character testimony of [Petitioner's] mother was not likely to have produced a different verdict in light of the strength of this other evidence. Moreover, since trial counsel had the Commonwealth stipulate to [Petitioner's] good character, such a stipulation was an admission by the Commonwealth that [Petitioner] had a reputation in the community as being a person of good character. This strategem effectively foreclosed any possibility that the Commonwealth would attempt to rebut this evidence and try to call [Petitioner's] character into question. Trial counsel's actions were therefore reasonable under the circumstances.Id. at 10-11.
The state court's decision correctly applied the rules elucidated in Commonwealth v. Speight, 544 Pa. 451, Commonwealth v. Mickens, 597 A.2d 1196 and Strickland It is unlikely that Petitioner was prejudiced by the absence of his mother's testimony. Petitioner has attached letters from eight individuals to his habeas petition. Those letters address availability to testify on the suppression issue and not to vouch for Petitioner's character. Moreover, this court does not find trial counsel's decision to have the Commonwealth stipulate to Petitioner's "good character" to be unreasonable. This strategy avoided potentially damaging cross-examination regarding Plaintiff's character. Thus, counsel was not ineffective and the state courts reasonably rejected Petitioner's arguments.
b. Failure to object to the court's instruction relating to prior inconsistent statements (Ground 3)
Trial counsel failed to object to the court's instruction advising the jury to believe either the prosecution's witnesses' prior inconsistent statements or the trial testimony. See Pet. at 16-17. The court instructed the jury as follows:
Now, if you believe that a witness gave a prior inconsistent statement, the law says you have two choices. The witness in now on the stand and is testifying. You may accept and believe the testimony the person gave you, or if you choose to do so, you may accept the prior statement that is inconsistent with today's testimony as being true. You have two choices. The law states that as an alternative, you may if you choose the evidence offered to you as proof of the truth of anything the witness says or you may regard the testimony concerning the prior statement as proof of anything that the witness said earlier. You may consider the evidence not only to judge the truthfulness of it, but you may also use it to help you judge the credibility and weight of testimony given by the witness at the trial.
Since you're the sole judge of credibility and weight of testimony, you should decide whether you believe the testimony offered to you in court or the testimony from the former statement, then make your minds up on how important you think it might have been. Ordinarily, when a witness gives a statement on a former occasion and then comes in and testifies the same way on the witness stand, that former statement is not allowed to come in to you because it is a former consistent statement. But if a witness is cross[-]examined about what he's saying on the witness stand today, then if the cross[-] examination tends to show that he — he just made this up, it is a recent fabrication, the other side of the case is permitted to bring in a prior consistent statement to prove that hey, he just did not make it up, it always has been that way since the day he first gave the statement. So that's the limited aspect of attempting [to] show that the witness did not recently fabricate the testimony at trial, because a prior statement did in fact exist before the witness testified either at a preliminary hearing or a statement given to the police on a prior occasion. The jury is free to accept or reject testimony as a basis for a finding of fact, but the evidence of prior consistent statement is offered for the limited purpose of attempting to prove lack of recent fabrication.
N.T. 6/28/94 at 14-16. The crux of Petitioner's argument is that the jury also should have been provided the option to disbelieve both the trial testimony and the prior testimony of the witness, an option that may have benefitted him. See Pet. at 17. The Superior rejected this ineffectiveness claim, because supplemental jury instructions outlined the complete panoply of options. The intermediate court explained that:
[i]n addition to [the instructions that it gave regarding prior inconsistent statements], the Trial Court also properly instructed the jury that it was within its province to accept all, part or none of any witness's trial testimony. Thus, when reading these two sections of the Trial Court's entire charge to the jury together, it is clear that the jury was apprised by the learned Trial Judge of their full range of options, namely that they could believe the witness's trial testimony, the witnesses's prior inconsistent statement, or they could elect to believe none of the witness's testimony whatsoever. Consequently, we agree with PCRA Court that this allegation of trial counsel's ineffectiveness has no merit.Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 12-13 (emphasis in original, internal citations omitted).
A Pennsylvania trial court has wide discretion in phrasing jury instructions. See Commonwealth v. Ragan, 560 Pa. 106, 12-121, 743 A.2d 390, 397 (1999). A reviewing court "must view the entire charge to determine whether the trial court clearly and accurately presented the concepts of the legal issue to the jury" and should defer to the trial court unless the court abused its discretion. Id. Moreover, state jury instructions are subject to federal scrutiny only if they violate specific Constitutional standards imposed upon the states by the due process clause of the Fourteenth Amendment. See Wheeler v. Chesney, No.Civ.A. 98-5131, 2000 WL 124560, at *7 (E.D. Pa., Jan. 27, 2000) (citing Hollowell v. Keve, 555 F.2d 103, 106 (3rd Cir. 1977)).
The federal test "is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughton, 414 U.S. 141, 147 (1973). In assessing the effect of a challenged jury instruction, "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Boyde v. California, 494 U.S. 370 (1990) (citing Boyd v. United States, 272 U.S. 104, 107 (1926); see also Victor v. Nebraska, 511 U.S. 1, 5 (1994) (holding that, when evaluating the adequacy of a jury instruction, the instruction must be read in its entirety, not in isolated fragments).
In this instance, the jury instruction, viewed as a whole, was accurate. Therefore, counsel was not ineffective, under Strickland, for failing to object to a fair statement of the law simply because a more favorable charge could have been provided. In addition, Petitioner is unable to establish, by a reasonable probability, that if counsel had objected to the charge given, the result at trial would have been different. Thus, Petitioner suffered no prejudice under the second prong of Strickland An instruction, that is neither contrary to nor an unreasonable application of federal law, clearly did not "so infect the entire trial that the resulting conviction violate[d] due process." Cupp, 414 U.S. at 147. Hence, the state court appropriately affirmed the trial court's credibility charge.
c. Failure to object to trial court's instructions to the jury regarding deliberations on remaining charges against co-defendant Moreno, as it relates to Petitioner (Ground 4)
The trial record reflects that, during deliberations, the jury informed the trial judge that it had reached a guilty verdict against Petitioner and co-defendants Casile and Moreno, although it was unable to reach a unanimous verdict on all charges against Moreno. See N.T. 6/29/94 at 4, 7-8, 9. The trial judge, pursuant to Pennsylvania Rule of Criminal Procedure 1120, ordered the court crier to record those verdicts; thereafter, the jury was instructed to continue deliberating on the remaining charges against Moreno. See N.T. 6/29/94 at 4, 7-8. Petitioner's argument, that the court should have instructed the jury that they could reconsider their verdict against him while considering the remaining charges against Moreno lacks support in any state or federal authority. Petitioner further asserts that his attorney's failure to object to this instruction was erroneous. This court finds the trial court's application of Pennsylvania Rule of Criminal Procedure 1120 (648) to be reasonable and not violative of any specific Constitutional due process precepts. See Hollowell v. Keve, 555 F.2d 103 (3rd Cir. 1977). Accordingly, trial counsel could not have successfully challenged application of the state rule. Failure to raise meritless claims cannot constitute ineffective assistance. See Hutson v. Vaughn, 2004 U.S. Dist. Lexis 5332 (E.D. Pa. March 29, 2004) (citing Chimenti v. Frank, 2001 U.S. Dist. Lexis 71 (E.D. Pa. Jan. 7, 2001). d. Failure to object to trial court's instructions regarding the polling of the jury (Grounds 5 and 6)
Pa.R.Crim.P. 11 20 (renumbered as Pa.R.Crim.P. 648, effective April 1, 2001) provides:
(c) If there are two or more defendants, the jury may report a verdict or verdicts with respect to those defendants, upon which it has agreed, and the judge shall receive all such verdicts. If the jury cannot agree upon a verdict with respect to all of the defendants, the verdicts which have been received shall be recorded.
Petitioner states that his trial counsel was ineffective for failing to object to the trial court's simultaneous polling of each juror on multiple convictions. Petitioner further interprets the trial court crier's instruction to the jury as misleading, because he believed it was unclear what they were agreeing to. See Pet. at 18-21. The court transcript preserved this colloquy:
THE CRIER: Jurors, counsel for the Defense has asked that the Jury be polled.
THE COURT: Excuse me. While we're at it, just do it as to both Defendants that were found guilty of murder in the third degree. Just do it one time.
THE CRIER: Right. As I said, counsel for the Defense asks that the Jury be polled. As I call you number, state whether you agree or do you agree or disagree.
Juror number one do you agree or disagree?
JUROR ONE: I agree.
THE CRIER: Thank you.
Juror number two, do you agree or disagree?
JUROR TWO: I agree.
* * *
N.T. 6/29/94 at 10-11.
On June 12, 1998, the PCRA court dismissed this claim, see Commonwealth v. Pulido, No. 1320-1327, Order (Ct. Com. Pl. Phila. Cty., June 12, 1998), however, the Superior Court, on July 28, 1999, remanded the case for an evidentiary hearing on Petitioner's claims that trial counsel was ineffective for failing to object to (a) the language used to poll the jury, and (b) the manner in which the jurors were polled. See Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 3.
At the mandated evidentiary hearing on the polling issue, held on February 15, 2000, the court crier, Joseph John Tereshko, and Jeremy Ibrahim, Esq., Petitioner's trial counsel, testified. See N.T. Evid. Hrg., 2/15/00 at 5-23, and 24-53. On June 19, 2000, the PCRA court, again, dismissed the petition. See Commonwealth v. Pulido, Findings of Fact, (Ct. Com. Pl. Phila. Cty., June 19, 2002). The Superior Court affirmed the decision in October 2001, see Commonwealth v. Pulido, 790 A.2d 342, Slip Op., and the state supreme court denied allocator on June 19, 2002. See Commonwealth v. Pulido, 803 A.2d 734 (Pa. 2002).
Petitioner cites, inter alia, Pennsylvania Rule of Criminal Procedure 648(f) in furtherance of his argument. See Pet. at 19. However, the rationale of the Superior Court is persuasive:
Rule 648(f) provides:
Before a verdict, whether oral or sealed, is recorded, the jury shall be polled at the request of any party. Except where the verdict is sealed, if upon such poll there is no concurrence, the jury shall be directed to retire to full deliberations.
Pa.R .Crim.P. 64 8(f).
To the extent that [Petitioner] is arguing that the jury should have been polled separately as to each defendant on each charge, this claim also fails. Our Supreme Court has rejected the imposition of a requirement in cases involving multiple charges and multiple defendants that each juror be asked their agreement with respect to the verdict on each individual charge against each individual defendant. Once the jury is polled and each juror as stated his or her agreement with the verdicts as they were announced by the foreperson, any further individualized voire dire is not available as of right; hence counsel cannot be found ineffective solely for failing to request it. See Commonwealth v. Chester, 557 Pa. 358, 381, 733 A.2d 1242, 1254 (1999) (in case involving multiple defendants and multiple charges, counsel was not ineffective for failing to request that jurors be polled individually as to each separate charge and each separate defendant since each juror had already been polled and indicated that they agreed with the verdicts as read by the foreperson); Commonwealth v. Laird, 555 Pa. 629, 649, 726 A.2d 346, 355 (1999) (same).Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 18-19. Petitioner has not referred to any federal requirement for individualized voire dire of jurors in instances where multiple defendants are tried together. Thus, Petitioner's argument, "while creative, does not present an arguable claim of ineffective assistance of counsel [and given] that the jury was polled and each juror affirmed the verdict, counsel had no reason to request a further poll of the jurors." Commonwealth v. Laird, 555 Pa. at 649.
This court's review of the trial transcript and evidentiary hearing notes confirms that the jurors knowingly assented to the verdict and not merely to the process of being polled. At the evidentiary hearing, the court crier, Mr. Tereshko, testified that, to the best of his recollection, the jury understood his question. See N.T., Evid. Hrg., 2/15/00 at 7-8. Furthermore, the trial and PCRA evidentiary hearing judge, Judge Poserina, stated on the record:
I was the sitting judge and I will make a statement for the record that I thoroughly understood what was going on and in my opinion so did the jurors and they understood the question and the responded each of them that they agreed with the verdict as announced . . .
N.T., Evidentiary Hearing, 2/25/00 at 8. Petitioner's trial counsel, Mr. Ibrahim, also testified that, at the time of the polling, he "was attentive to when [court crier] Mr. Tereshko was conducting the polling of the jury and there was nothing that he said that caused me to be confused." Id. at 36. Counsel testified that he understood the court crier "to be asking [the jury] whether or not they agreed or disagreed with the verdict." Id. at 37. Furthermore, counselor Ibrahim, who spoke with the jurors at the conclusion of the trial, believed that they were not confused about the verdict. Id. at 38. Hence, this court finds neither Strickland counsel ineffectiveness nor attendant prejudice. Therefore, the state court's determination on the polling issue is neither contrary to nor an unusual application of federal law. Hence, Grounds 5 and 6, should be dismissed as meritless.
C. NON-COGNIZABLE STATE EVIDENTIARY CLAIM — GROUND ONE (1)
Petitioner asserts that trial counsel was ineffective for failing to challenge the admission of evidence obtained from the vehicle Petitioner was driving at the time of his arrest. Federal habeas review and relief does not extend to questions about the admissibility of evidence that are based on state rules of evidence. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Specifically, federal habeas relief will not be granted or reviewed on the ground that evidence obtained in an unconstitutional search and seizure was introduced at trial, where the state had provided an opportunity for full and fair litigation of a Fourth Amendment claim. See Stone v. Powell, 428 U.S. 465 (1976). Moreover, "evidentiary errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas corpus proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial." Bisaccia v. Atty. Gen. of N.J., 623 F.2d 307, 312 (3rd Cir. 1980), cert. denied, 449 U.S. 1042 (1980). A full and fair hearing at the trial level determined the outcome of Petitioner's Fourth Amendment suppression claim. The transcript belies Petitioner's assertion that counsel failed to properly raise and argue reasonable issues. Accordingly, this court finds no constitutional deprivation in this instance.
Assuming, ad arguendo, that Petitioner's claims of counsel was ineffectiveness were cognizable, this court would consider the merits of Petitioner's Fourth and Sixth Amendment claims under the standards set forth in Williams and in Strickland The Superior Court first determined that Petitioner's assertion that his trial counsel failed to seek suppression of the evidence recovered from the vehicle that he was driving to be mistaken: Petitioner's "original court appointed counsel . . . did in fact file a comprehensive omnibus pretrial motion seeking suppression of the evidence recovered at the time of [Petitioner's] arrest." Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 8. The evidence adduced at the suppression hearing revealed that, after Petitioner was taken into custody, the police recovered from the vehicle that Petitioner was driving, duffle bags containing clothing and toiletries. N.T. Suppression Hearing, 4/26/94 at 11-12. Even though no evidence linking Petitioner to the murder of the victims was recovered during the search, Petitioner's counsel vigorously argued that the warrantless search and seizure of the evidence should be suppressed. See N.T. Suppression Hearing, 4/26/94. The state court denied Petitioner's motion to suppress, ruling that the evidence was seized during a lawful inventory search of the vehicle after it was impounded. Id. at 45-49. The Superior Court found that
trial counsel did exercise all reasonable efforts to have this evidence suppressed. Moreover, it is also clear that because none of the evidence directly linked [Petitioner] to the commission of the underlying crimes for which he was convicted, the admission of the evidence recovered from the bags in the trunk of the car at trial was not prejudicial to him. Thus, even had trial counsel prevailed in this suppression motion there is not a reasonable likelihood that the jury's verdict would have been different. Therefore, this particular claim of trial counsel's ineffectiveness must fail.Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 9. Moreover, Petitioner has not shown clear evidence of prejudice inasmuch as the record shows that Petitioner's counsel vigorously argued to suppress the evidence. Relief based on this non-cognizable, meritless claim should be denied.
D. PROCEDURALLY DEFAULTED CLAIMS — GROUNDS (7) THROUGH (10)
Petitioner alleges that the trial court erred in (a) failing to record the verdicts following the polling of the jury and in proceeding to a sentencing hearing (Ground 7); (b) instructing the jury that it's only two choices were to believe either the prosecution witnesses's prior inconsistent statements or trial testimony (Ground 8); (c) informing the jury to return to deliberations only on Petitioner's co-defendant's charge (Ground 9); and in failing to poll the jurors individually (Ground 10). See Pet. at 20-25. The Commonwealth argues, and this court agrees, that these four claims are procedurally defaulted.
It is well-settled that a district court sitting in a habeas proceeding will not review a question of federal law decided by a state court, if the decision of that court rests on a state law ground that is independent of the federal question first presented and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The applicable test follows:
A state rule provides an independent and adequate basis for precluding federal review of a state prisoner's habeas claims only 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 instant is consistent with other decision.Doctor v. Walters, 96 F.3d 675, 683-684 (3rd Cir. 1996) (citing Neely v. Zimmerman, 858 F.2d 144, 148 (3rd Cir. 1988)) (internal citations omitted). A state rule is adequate only if it is "consistently and regularly applied." Walters, 96 F.3d at 684 (citing Johnson v. Mississippi, 486 U.S. 578, 587 (1988). Moreover, a state procedural rule must be "firmly established and regularly followed" to bar federal habeas review. Id. (citing Ford v. Georgia, 498 U.S. 411, 423-24 (1991).
Grounds (7) through (10) meet the foregoing criteria. The Superior Court, citing 42 Pa.C.S.A. § 9544(b), as well as firmly established Pennsylvania Supreme Court decisions, noted that
42 Pa.C.S.A. § 9544(b) provides:
(B) Issues waived: for purposes of this subchapter, an issue is waived if the petitioner could have raised it but failed to do before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding.
[Petitioner's allegations of] Trial Court error are waived. It is well established that a claim first raised in a PCRA proceeding, which could have been brought in the PCRA petitioner's direct appeal, but was not, and which has not been raised in the PCRA proceeding in the context of all prior counsel's ineffectiveness in failing to previously present it, will be deemed waived . . . Thus, since [Petitioner] now fails to properly couch [these] issues in terms of the ineffective assistance of trial and appellate counsel in failing to previously present them, but instead, in these issues, simply asserts Trial Court error, those issues must be deemed waived and will not be considered.Commonwealth v. Pulido, 790 A.2d 342, Slip Op. at 5-6 (internal citations omitted). The Superior Court, following well-established state law, thus, clearly and appropriately denied Petitioner relief on these grounds. Id. Therefore, I conclude that independent and adequate state grounds require dismissal of Petitioner's contentions of trial court error.
Relief nevertheless, could be available, if Petitioner were able to satisfy one of three narrow exceptions enumerated under 42 Pa.C.S. § 9545(b)(1). However, Petitioner neither claims recent discovery of relevant facts, nor suggests that a recently pronounced state or federal supreme court law applies retroactively to give him new rights. Moreover, he has not alleged that any government officials interfered with his presentation of his claims. Thus, his claims shall remain defaulted.
Although federal courts, in appropriate circumstances, excuse procedural defaults, see Caswell, 953 F.2d at 862, Petitioner has neither alleged nor demonstrated facts sufficient to show cause to excuse his omission. Specifically, he has not adduced any evidence of objective factors, external to the defense, that prevented him from presenting this claim upon collateral review. See id. As Petitioner fails to establish cause for the default, inquiry into the prejudice prong is unnecessary. Moreover, he cannot demonstrate actual innocence and no "fundamental miscarriage of justice" warrants habeas review or relief. See Schlup, 513 U.S. at 298. Accordingly, Petitioner's defaulted claims presented in Grounds (7) through (10) should be dismissed.
E. NON-COGNIZABLE CLAIMS AGAINST PCRA COUNSEL — GROUNDS (11) THROUGH (30)
Petitioner, in Grounds (11) through (30), complains that PCRA counsel was ineffective for failing to review the entire record and raise all arguable issues. Pursuant to 28 U.S.C. § 2254, as amended by the AEDPA, this court may entertain the merits of a state prisoner's application for a writ of habeas corpus only if his custody violates the Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a). The omissions complained in Ground (11)-(30) neither implicate nor violate constitutional or other federal law.
The Supreme Court of the United States has held that a criminal defendant has no federal constitutional right to counsel beyond the first level of direct appeal. See Pa. v. Finley, 481 U.S. 551, 555 (1987); Wainwright v. Torna, 455 U.S. 586, 587-88; Ross v. Moffitt, 417 U.S. 600, 610 (1974). Stated more explicitly, the constitutional right to counsel does not attach to state post-conviction proceedings or to discretionary appeals. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Moffitt, 417 U.S. at 610. Absent the right to counsel during PCRA review, Petitioner, not the state, must bear the risk of counsel's errors or omissions at this level of review. See Coleman, 501 U.S. at 725; see also U.S. v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1989). Thus, PCRA counsel's omissions, no matter how egregious, cannot warrant habeas relief on Grounds 11-30. See Wainwright, 455 U.S. at 587-88.
Further, Petitioner's counsel omissions do not address the core issue of his guilt or innocence. Thus, Petitioner has demonstrated neither a violation of federal law nor resulting prejudice under Strickland in any of his ineffective assistance of counsel claims. Moreover, the state court properly analyzed each, in accordance with federal precepts. None of the alleged errors are contrary to or an unreasonable application of federal law. Nor have the facts been misconstrued. Accordingly, habeas relief is inappropriate and I make the following:
III. RECOMMENDATION
AND NOW, this 13th day of May, 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to U.S.C. § 2254 be DENIED without an evidentiary hearing. Petitioner has not demonstrated a substantial violation of any Constitutional right. Each of his claims is non-cognizable, unexhausted, or meritless; therefore, there is no probable cause to issue a certificate of appealability.