Opinion
CIVIL ACTION NO. 98-3993
October 1, 2003
REPORT AND RECOMMENDATION
Presently before this Court is a counseled Second Amended Petition for Writ of Habeas Corpus. The initial Petition in this case was filedpro se. For the reasons that follow, it is recommended that the Second Amended Petition be denied and dismissed with prejudice.
This information is taken from the Second Amended Petition, the Response thereto, and all attachments to those pleadings.
Petitioner and a friend, Leonard "Clank" Ravenell, smoked cocaine for two hours in the early afternoon of November 30, 1985, then decided to drive around in Ravenell's car with the intention of robbing someone in order to obtain more drugs. They decided on a small grocery store owned and operated by David and Juanita Rodriguez. (N.T. 4/18/99, pp. 36-44.) Ravenell testified that, after parking around the corner from the store and as they exited the vehicle, Petitioner handed his mother-in-law's .38 caliber gun to Ravenell, explaining that when he asked for cigarettes, Ravenell should pull out the gun. (Id. at 40-41, 43-46.) When Petitioner and Ravenell entered the store, Mr. and Mrs. Rodriguez and one other customer, eleven year-old Tracey Natal, were inside.
Ravenell testified that Mr. and Mrs. Rodriguez were in the store when the men entered, and a little girl came in at the time of the shooting. (N.T., 4/18/89, pp. 46, 49.)
Petitioner asked Mrs. Rodriguez the price of cigarettes. After she answered, Petitioner looked at Ravenell, who then produced the gun and pointed it at Mr. Rodriguez's head, ordering him to "Freeze" and "Get down." (N.T. 4/17/89, pp. 40-43, 46, 58; 4/18/89, pp. 3-8, 47-52.) Petitioner grabbed Tracey Natal by the arm as she started to walk away, holding her tightly in front of him, and Mrs. Rodriguez got down on the floor. Mr. Rodriguez, on the other hand, remained standing and pushed a bag of rolls across a counter toward Ravenell. Ravenell then shot Mr. Rodriguez in the head, fatally wounding him. (N.T. 4/17/89, pp. 45-48; 4/18/89, pp. 47-52.) Neither Petitioner nor Ravenell took anything from the store.
Ravenell testified that he was arrested for these crimes on January 20, 1987, and on March 7, 1988, entered an open guilty plea to second degree murder and robbery before the Honorable Theodore A. McKee in the Court of Common Pleas of Philadelphia. Judge McKee immediately sentenced him to life imprisonment. After sentencing, Ravenell spoke with detectives, and Petitioner was subsequently arrested. (N.T., 4/18/89, pp. 53-60.) At Petitioner's trial in April of 1989, Ravenell was the primary Commonwealth witness against Petitioner. Mrs. Rodriguez and Tracey Natal also identified Petitioner as one of the perpetrators, and confirmed Ravenell's testimony of the events of November 30, 1985.
Petitioner testified that he was not involved in the shooting, claiming that Ravenell, a neighbor, implicated him in the shooting because in 1988, Ravenell had called Petitioner and implied that Petitioner was having an affair with his girlfriend while Ravenell was in jail. (N.T. 4/19/89, pp. 6, 62-86.) Petitioner also called two witnesses, Patrick Hart and John Laurin, who saw two black males fleeing the Rodriguez's store as they drove past it. Both described one man as wearing a light hat, and Hart stated that one was taller than the other, although neither Hart nor Laurin could identify the perpetrators. Both also testified that they saw a third man, a driver, in the getaway car, although neither witness could describe this person. (N.T. 4/19/89, pp. 19-44.) Laurin testified that both men entered the car on the passenger dies, and Hart testified that one entered on the passenger side, and the other entered on the driver's side. (Id. at 22, 33.)
Ms. Natal described Petitioner as a black man with a light complexion and light eyes, wearing a cap and a beige or khaki jacket, who was taller and had a lighter complexion and a rounder face than the other perpetrator. Tracey Natal described Petitioner as the man she first described to the police as the taller, lighter-skinned black man, wearing a light brown jacket, who had held her as Ravenell shot Mr. Rodriguez. She testified that when she was first interviewed by police immediately after the shooting, she told them she was not sure if she could identify the men if she saw them again. When she next saw Petitioner in a line-up, however, she positively identified him. (N.T., 4/18/89, pp. 24-33.)
II. PROCEDURAL HISTORY.
Petitioner was tried and convicted by a jury before the Honorable George J. Ivins in the Philadelphia Court of Common Pleas on April 21, 1989, and was convicted of second degree murder (felony murder), robbery, conspiracy, and possessing an instrument of crime ("PIC"). He was represented at trial by Thomas Moore, Esquire. That same day, Petitioner was sentenced to life imprisonment for the murder charge and to a concurrent term of two to four years' imprisonment for conspiracy. On March 5, 1990, the trial court filed an opinion denying Petitioner's post-trial motions which were solely based on the claim that the verdict was against the weight of the evidence. Petitioner did not file a direct appeal.
On December 18, 1990, Petitioner filed a pro se petition for collateral relief pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"). See 42 Pa. C.S.A. § 9542, et seq. Counsel was appointed and filed an amended petition raising a claim of ineffective assistance of trial counsel for failing to file a timely notice of appeal despite petitioner's instruction to file an appeal. On August 10, 1995, the Honorable Joseph I. Papalini reinstated Petitioner's right to direct appeal nunc pro tunc. Petitioner then filed a direct appeal with the Pennsylvania Superior Court, claiming: (1) the jury verdict was against the weight of the evidence; and (2) ineffective assistance of trial counsel for (a) failing to file a pre-trial motion to suppress the identification evidence, and (b) failing to request a proper eyewitness identification jury charge.
The Superior Court affirmed the judgments of sentence on November 27, 1996 in an unpublished memorandum. Commonwealth v. Veal, 688 A.2d 1231 (Pa.Super. 1996) (table). Petitioner did not file a timely petition for allowance of appeal with the Supreme Court of Pennsylvania nor did he ever ask that court for permission to file an appeal out of time.
On September 15, 1997, petitioner's newly appointed counsel filed a petition for allowance of appeal in the Pennsylvania Supreme Court. This petition, filed almost nine months late, reasserted the same claims asserted in the Superior Court, that: (1) the verdict was against the weight of the evidence; and (2) ineffective assistance of trial counsel for (a) failing to file a pre-trial motion to suppress the identification evidence, and (b) failing to request a proper eyewitness identification jury charge. (Resp., Ex. I.) Petitioner's request for allocatur was denied on February 23, 1998. Commonwealth v. Veal, 490 E.D. Allocatur Docket 1997.
Petitioner did not file a PCRA petition within one year of the date on which his judgment of sentence became final on direct appeal. His sentence became final on December 27, 1996, which was also his deadline for filing a timely allocatur petition.
Petitioner filed the instant action on July 31, 1998, claiming ineffective assistance of trial counsel for: (1) failing to move, prior to trial, for the suppression of identification testimony, and (2) failing to request proper jury instructions regarding eyewitness identification testimony. On October 6, 1998, the Commonwealth responded to the Petition on the basis that Petitioner's claims were procedurally defaulted because, due to his lateness in petitioning for allocatur, Petitioner had not fairly presented them to each level of the state appellate court, as required, and had demonstrated neither cause nor prejudice to excuse this default, pursuant to O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) and Beatty v. Patton, 700 F.2d 110 (3d Cir. 1983).
On October 23, 1998, this Court filed a Report and Recommendation recommending that the Petition be denied and dismissed because Petitioner's claims were procedurally defaulted. Petitioner filed objections, arguing that the Court should excuse the procedural default of his claims. Initially, he alleged that his attorney on his reinstated appeal, David Rudenstein, Esquire, provided ineffective assistance for failing to file a petition for allowance of appeal in the Pennsylvania Supreme Court even though Petitioner had requested that he file an appeal. Attached to Petitioner's objections were copies of correspondence which had never been presented either to this Court or the Respondents, including: (1) an allegedly contemporaneous December 16, 1996 letter to Mr. Rudenstein, before the date of the allocatur filing, asking him to file an allocatur petition from the Superior Court's denial order; (2) a January 3, 1997 letter to the Pennsylvania Supreme Court, shortly after the allocatur filing deadline, inquiring whether counsel had filed an allocatur petition on his behalf; and (3) a January 15, 1997 response from the Pennsylvania Supreme Court denying that a petition had been filed. Petitioner stated that, upon receipt of the January 15, 1997 letter from the Supreme Court, he promptly filed a motion in the Court of Common Pleas of Philadelphia seeking leave to file a petition for allowance of appeal nunc pro tunc in the Pennsylvania Supreme Court, and that the Common Pleas Court issued an order excusing his lateness in filing for allocatur.
Respondents contend that these objections and correspondence were unknown and a surprise because such an order was beyond the authority of the Common Pleas Court. Further, there were no documents in the Commonwealth's file concerning this motion or order, and further research revealed that the Commonwealth did not have these documents because it was not served with Petitioner's motion until he filed the instant habeas action. In addition, the Commonwealth was not served with the order from the Common Pleas Court until the deadline for filing objections or an appeal from that order had passed.
Nonetheless, Respondents filed a response to Petitioner's pro se objections, Petitioner filed a reply, and the Commonwealth filed a response, all of which concerned the effect of the unusual Common Pleas Court order.
The Honorable Anita B. Brody appointed counsel on December 22, 1999, and counsel filed amended objections to the Report and Recommendation on May 8, 2000. On June 19, 2000, the Respondents responded, and on July 12, 2000, Petitioner's counsel filed a reply. These filings also concerned Petitioner's procedural default in light of the Common Pleas Court's order. On October 30, 2000, Judge Brody heard oral argument on the procedural default issue, and on December 29, 2000, entered an "Explanation and Order," concluding that Respondents waived the procedural default with respect to Petitioner's 1997 pro se motion. Veal v. Myers, 126 F. Supp.2d 932 (E.D. Pa. 2000). Judge Brody held that "[i]f the Commonwealth wished to avoid the state court's waiver of the procedural default, it was incumbent upon it to appeal the Court of Common Pleas' order." Explanation and Order at 8-9 (citing Hull v. Kyler, 190 F.3d 88 (3d Cir. 1999)).
The Commonwealth now contends that subsequent research has revealed that it did not receive Judge Temin's order until thirty-one days after it was issued, so that by the time it was received, it was too late to file an appeal.
This Court granted Petitioner, through his current counsel, permission to file an amended petition within thirty days of January 8, 2001. On or about July 11, 2001, Respondents received Petitioner's First Amended Petition, and at approximately the same time, Petitioner's current counsel encountered difficulty in obtaining the trial file from Petitioner's trial attorney, Thomas Moore, Esquire.
On July 23, 2001, this Court approved a stipulation signed by counsel for both Petitioner and Respondents, that Petitioner would again be entitled to obtain discovery originally available to trial counsel, that the Commonwealth would not be required to respond to the First Amended Petition filed July 9, 2001, that Petitioner would file a Second Amended Petition setting forth the facts learned in discovery, and that the Commonwealth would respond thereafter, reserving the right to assert any appropriate procedural defenses.
On May 3, 2002, Petitioner's counsel wrote to the Commonwealth, requesting discovery materials. On July 29, 2002, after researching and reconstituting the Commonwealth's previously incomplete envelope of discovery materials, counsel for the Commonwealth sent Petitioner's counsel a copy of the original discovery packet. Further correspondence regarding discovery ensued, and the Commonwealth provided Petitioner's counsel with follow-up materials upon request.
On November 14, 2002, Judge Brody placed this case in civil suspense. In December, 2002, this Court held a telephone conference with counsel, and a schedule for filing the Second Amended Petition was established. On January 20, 2003, Petitioner filed his Second Amended Petition. In the Second Amended Petition, he claims that: (1) the identification by eyewitness Rodriguez was tainted (Second Am. Pet., ¶ 9); (2) the identification by eyewitness Natal was tainted (Id., ¶ 10); (3) trial counsel Moore was ineffective for (a) failing to move to suppress these identifications, (b) failing to object to their admission at trial (Id., ¶ 12), (c) failing to request a continuance and take any necessary steps to force the appearance at trial of an individual named "Paco," a reluctant, non-appearing subpoenaed witness who was to provide allegedly exculpatory evidence by denying Ravenell's account that he [Paco] had bought the murder weapon from Petitioner, and (d) failing adequately to investigate that allegedly exculpatory evidence (Id., ¶ 20); (4) appellate counsel Rudenstein was ineffective for failing to argue claim 3 and all of its subparts in the Superior Court on reinstated direct appeal (Id., ¶¶ 13-14, 21-22); (5) nunc pro tunc allocatur counsel Elbert was ineffective for (a) failing to raise on allocatur claim 3, though not claim 4, and for (b) laboring under an actual conflict of interest, since he represented co-defendant Ravenell at trial. (Id., ¶¶ 15, 23.) Petitioner's claims are hereafter addressed.
Respondents note that some paragraphs in the Second Amended Petition contain a mixture of a claim that was asserted in at least one state court, and a claim that was never asserted in any state court. Due to the doctrines of exhaustion and procedural default, these claims are treated separately even though they may be presented as one in the Second Amended Petition.
Subparts (a) and (b) are treated separately although presented as one paragraph in the Second Amended Petition because they consist of separate behaviors by counsel and because only one of them was arguably presented to any state court.
III. DISCUSSION.
A. Petitioner's Claim that State Courts Misapplied or Contradicted Clearly Established Federal Law When Adjudicating the Claim that Identification by Eyewitness Rodriguez Was Tainted.
Respondents contend that this claim is procedurally defaulted and is not reviewable in habeas, but if this claim were reviewable, the only possible outcome is a denial of relief. They note that the only way in which this claim has been presented to the state courts is as the separate Sixth Amendment ineffectiveness claim. The claim presented in the instant Second Amended Petition at paragraph 9 is presented differently from the claims before the state courts. Because this claim was never presented to the state courts, it is not reviewable by this Court due to the PCRA, an independent and adequate state rule.
B. Petitioner's Claim that State Courts Misapplied or Contradicted Clearly Established Federal Law When Adjudicating the Claim that Identification by Eyewitness Natal Was Tainted.
Again, Respondents contend that this claim, just as Petitioner's first claim, supra, is not reviewable in habeas because it was never presented to the state court as a Sixth Amendment ineffectiveness claim. Petitioner presents the instant claim set forth in paragraph 10 of his Second Amended Petition differently. As such, it is not reviewable by this Court.
C. Petitioner's Claim for Trial Counsel Ineffectiveness.
Respondents first ask this Court to review and reconsider the Explanation and Order entered by Judge Brody on December 29, 2000, finding that the procedural default was waived by the Commonwealth. This decision was based on the assumption that the Commonwealth had timely notice of the 1997 order issued by Judge Carolyn Temin of the Court of Common Pleas, had an opportunity to appeal Judge Temin's order, and that the order was intended to excuse petitioner's lateness and allow him to file an allocatur petition beyond the state supreme court's filing deadline. Respondents seek reconsideration of Judge Brody's Explanation and Order on the basis that it recently discovered "an egregious and unusual set of additional procedural facts . . . justifiably not known to the Commonwealth at the time Judge Brody issued her Explanation and Order. They have only just become apparent during this office's reconstruction of its previously incomplete file in order to provide the agreed-upon discovery." (Resp. Second Am. Pet. at 33.)
Because this Court's jurisdiction is limited to the powers enumerated in 28 U.S.C. § 636, the instant request for reconsideration contained at pages 32 through 62 of the Response cannot be addressed. Rather, this Report and Recommendation is limited to an examination of the instant Petition on its merits, as Ordered by Judge Brody.
1. Petitioner's Claim that Trial Counsel Was Ineffective For Failing to Move, Prior to Trial, For the Suppression of the Identification
Testimony of Mrs. Rodriguez.
Petitioner next claims that his trial counsel was ineffective for failing to move for the suppression of the identification testimony of Mrs. Rodriguez at Petitioner's preliminary hearing. Respondents object to this claim as defaulted because it was not presented as a federal claim to the Pennsylvania Supreme Court. The claim presented to the Pennsylvania Superior Court included federal grounds for the suppression of identification. As presented to the Pennsylvania Supreme Court, however, the claim did not include federal grounds for identification suppression. Thus, Respondents argue that the federal claim presented to this Court was not properly exhausted at the state court level. Moreover, the PCRA time-bar and previous litigation provisions explained in sections III.A. and III.B., supra, which are adequate and independent state rules, now prevent Petitioner from exhausting his claim in state court. However, because Judge Brody in her Explanation and Order ruled that the claim should be addressed on the merits, Respondents have also responded on that basis.Respondents contend that the instant claim was not raised before the trial court, i.e., that Petitioner's trial counsel, Mr. Moore, should have moved to suppress Mrs. Rodriquez's testimony prior to trial. They note, however, that Petitioner's trial counsel raised a similar claim, that "[t]he verdict was against the weight of the evidence because the identifications of the Defendant by Juanita Rodriguez and Tracey Natal were tainted and/or lacked any evidentiary value." (Am. Mot. in Arrest of Judgment, 12/5/89.) This ineffective assistance of counsel claim was directly raised in the state court. This was the second of three claims raised before and reviewed by the Superior Court in the 1996 reinstated direct appeal. In addressing this claim, the Superior Court set forth the state standards for ineffective assistance of counsel, which are the same as the federal standards. (Super.Ct. Op. at 3-4.) The Superior Court also examined whether the strategy omitted by counsel could have had possible merit, and the court examined the standards for suppression of in-court identification based on allegedly tainted pre-trial identifications. (Id. at 4-6.)
The Memorandum of Law in support of this Motion added further argument as follows:
Mrs. Rodriguez's identification of the defendant as the trigger-man's accomplice was totally tainted and has no evidentiary value. The Defendant's preliminary hearing was on April 13, 1988, some 29 months after the shooting. Mrs. Rodriguez was told that the man arrested by the police and suspected of being the accomplice would be present and would be present in the courtroom. Mrs. Rodriguez saw the Defendant brought in to the courtroom in handcuffs surrounded by Sheriffs. She observed the Defendant in this severely compromising position for almost one hour. N.T. 4/17/89 at 52-55, 63-64, and 66-67. This prejudicial setting obviously tainted the subsequent identifications of the Defendant by Mrs. Rodriguez.
Absent the compromising circumstances of the preliminary hearing, it is clear Mrs. Rodriguez did not have any independent basis for her identifications. Accordingly, her identifications cannot have any evidentiary value.
(Br. in Supp. of Mot. in Arrest of J. and/or a New Trial at 1-2.)
As Respondents correctly note, the Pennsylvania standards for this area also follow the federal standards. The Superior Court cited and relied upon several state cases in which the Pennsylvania Supreme Court based its analysis on cases decided by the United States Supreme Court. These cases also establish that:
The reliability of a challenged identification is to be judged under a test employing the totality of the circumstances. The factors relevant to determining the reliability of the identification are:
. . . the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.Commonwealth v. Ransome, 402 A.2d 1379, 1382 (Pa. 1979) (quoting Manson v. Braithwaite, 432 U.S. 98, 114 (1977)).
Following these standards, the Superior Court found that Mrs. Rodriguez's identification was reliable under the totality of the circumstances. It found that the circumstances surrounding the identification at the preliminary hearing were not suggestive, but even if they had been, she had an independent basis for her identification separate from any impropriety. (Super.Ct. Op. at 5-8.) The court stated that:
Veal asserts that Mrs. Rodriguez's presence at his preliminary hearing, even though she was not a witness, amounted to pre-identification taint. In the present case, like Ennis, and unlike McGaghey, the circumstances surrounding Mrs. Rodriguez's pre-trial identification were not suggestive. Baker, supra; Ransome, supra; Sexton, supra. There is nothing to indicate that the Commonwealth was involved. No one asked Mrs. Rodriguez whether she recognized anyone in the courtroom. Moreover, there is nothing in the record to indicate that Veal was the only defendant in the room at the time or that only after defendant's name had been called did Mrs. Rodriguez identify him. Nor were there circumstances present which would render her in-court identification unreliable. Baker, supra; Ransome, supra. Mrs. Rodriguez was able to observe the defendant during the crime for five to six minutes. Veal stood directly in front of her and asked her for cigarettes. Additionally, there is no indication that her original description was inaccurate. Finally, over a year after the preliminary hearing, Mrs. Rodriguez again identified defendant in a non-suggestive line-up. Accordingly, the in-court identification was the product of her recollection and not the circumstances surrounding the initial identification. Baker, supra; Ransome, supra; Sexton, supra; Ennis, supra.
(Id. at 6-7.)
If the action that counsel is accused of omitting would have made no difference, a Strickland claim has no merit under either federal or state law. The Superior Court found that it would have made no difference here because suppression would have been denied. The Superior Court found that counsel was not ineffective for not moving to suppress the identification. (Id. at 8.) Moreover, as noted by Respondents, trial counsel Mr. Moore had a reasonable strategic basis for not moving to suppress the identification testimony of Mrs. Rodriguez. Mrs. Rodriguez's police statement was evidence that her identification had an independent basis apart from the preliminary hearing identification, and Ms. Moore could also use the preliminary hearing incident to damage her credibility. Further, the Superior Court also found that Petitioner could not demonstrateStrickland prejudice since there was an independent basis for her identification. Therefore, even if counsel had moved to suppress the identification, it would not have been suppressed. The Superior Court specifically stated:
In the present case, neither the identification of Mrs. Rodriguez nor the identification of Ms. Natal warranted a Kloiber charge. Although Mrs. Rodriguez could not see appellant the entire time he was in the store, because Veal's accomplice had told everyone to drop to the ground, she did watch Veal while he walked up to the counter, and was face to face with him as he asked her for cigarettes. Consequently, she had the actual physical ability to observe Veal. Paolello, supra. In addition, Mrs. Rodriguez unequivocally identified Veal three times — at Veal's preliminary hearing over a year after the crime occurred, at a pre-trial line-up two years after the crime, and at trial. Kloiber, supra; Phillips, supra.
(Super.Ct. Op. at 9.) The Superior Court found that since "Veal's contentions regarding the unreliability" of the identification testimony of Mrs. Rodriguez lacked merit, "trial counsel was not ineffective for failing to move to suppress" it. (Id. at 8.)
As Respondents correctly note, to establish Strickland prejudice, Petitioner must show that there is reasonable probability that if Mrs. Rodriguez had not identified him at trial, the result of the proceeding would have been different. Therefore, Petitioner could not demonstrate prejudice and his the ineffective assistance of counsel claim was meritless.
Petitioner claims that adjudication of this claim by the state courts was either contrary to or an unreasonable application of clearly established United States Supreme Court precedent. Petitioner also alleges that the defense-requested line-up was improperly suggestive and that Mrs. Rodriguez indicated that she would not have identified Petitioner except for the purported improprieties at the line-up and the preliminary hearing. (Second Am. Pet. at 3, ¶¶ 9, 11.) Even if trial counsel had successfully moved to have Mrs. Rodriguez's in-court identification testimony excluded, Petitioner's guilt could still have been established through the testimony of Ravenell, the shooter. In addition, Ms. Natal's identification would have further corroborated Ravenell's testimony. Therefore, even if Mrs. Rodriguez's identification testimony was excluded, the Commonwealth still could have established Petitioner's guilt. Therefore, as examined by the Superior Court, the state courts' analysis applied Strickland and its progeny reasonably. Thus, Petitioner's claim fails.
2. Petitioner's Claim that Trial Counsel Was Ineffective For Failing to Move, Prior to Trial, For the Suppression of the Identification Testimony of Ms. Natal.
Petitioner also advances a claim that trial counsel was ineffective for failing to move, prior to trial, for the suppression of the pre-trial identification testimony of Tracey Natal, the eleven-year old girl who was present at the time of the shooting. Ms. Natal, who was fourteen at the time of Petitioner's trial, testified that she was present three years earlier at the time of the shooting. One man approached the cash register and asked for cigarettes. One of the two then said "Freeze" and she started to walk away. The man at the cash register then pulled a gun and the other, standing a few steps away, grabbed Ms. Natal. She identified Petitioner as the man who grabbed her arm. Ms. Natal testified that she did not see Petitioner again until the week before trial when she attended a lineup. At the lineup, she identified Petitioner even though she had not seen him for two and one-half years. (N.T., 4/18/89, pp. 15-17.) Defense counsel, at the time of trial, cross-examined Ms. Natal, exposing weaknesses in her testimony and differences between her testimony and that of Mrs. Rodriguez.
In his decision denying Petitioner's post-trial motions, Judge Ivins set forth these differences, and found that "while the testimony of both Mrs. Rodriguez and Ms. Natal was, at time, contradictory and, uncertain, it cannot be said that the verdict based thereon is defective and should be overturned." (Trial Ct. Op., Mot. New Trial and/or in Arrest of J. at 9.) Further, Judge Ivins also stated that:
Judge Ivins set forth these weaknesses and contradictions as follows:
1). Ms. Natal observed the defendant's face for only a couple of seconds. (N.T. 4/18/89, p. 18).
2). Mrs. Rodriguez had indicated that the defendant was wearing a hat. Ms. Natal said he had nothing on his head. (N.T. 4/18/89, p. 19).
3). In the time between the incident and the trial, Ms. Natal had several conversation with Mrs. Rodriguez about the incident because according to Ms. Natal, Mrs. Rodriguez was in "shock." (N.T. 4/18/89, p. 10).
4). Ms. Natal was unsure at the lineup whether the man she identified was one of the perpetrators.
5). In a statement given a couple of hours after the incident, Ms. Natal told the investigating detective that she did not get to look much at the faces of the men. (N.T. 4/18/89, p. 25).
6). When asked while giving the above referred to statement whethere [sic] she could identify the men she responded, "I don't know." (N.T. 4/18/89, p. 28).
(Trial Ct. Op., Mot. New Trial and/or in Arrest of J. at 8-9.)
[h]ere, as in Nelson, supra, the jury was fully comprised of the circumstances surrounding the separate identification of the defendant by Ms. Natal and Mrs. Rodriguez, as well as the shortcomings in the testimony given by each of them. Under these circumstances, the Court will not grant the defendant the relief he seeks as it cannot be said that this verdict, based however much it was on the identification testimony of the two women, "shocks the conscience."
(Id. at 10-11.)
The instant issue of ineffective assistance of counsel for failure to move for the suppression of Ms. Natal's pre-trial identification of Petitioner was also raised before the Pennsylvania Superior Court. That court stated:
She testified that she was talking with Mrs. Rodriguez, standing in front of the counter, when Veal approached and asked for cigarettes. She further testified that as he asked for cigarettes, she looked right into Veal's face. Accordingly, Ms. Natal had the actual physical ability to view Veal. Paolello, supra. Ms. Natal also unequivocally identified Veal at a line-up. Although in her statement to police given shortly after the robbery and murder Ms. Natal gave only a sketchy description of the assailants, and concededly, doubted her ability to identify them at a future date, when confronted with Veal at the pre-trial line-up she identified him, telling the officers, "I think that is him" and then started to cry and shake with fear. We believe that the substance of her actions, in light of the fact that she was eleven years-old when the crimes occurred and thirteen years-old at the line-up, demonstrate unequivocal identification of the defendant. Kloiber, supra. Her failure to give a detailed description the very same day that the crime took place is of no consequence. See Phillips, supra (Kloiber charge unnecessary where witness failed to give detailed description on day of crime and doubted his ability to identify perpetrators but unequivocally identified perpetrators at a preliminary hearing).
Because Veal's arguments as to both Mrs. Rodriguez and Ms. Natal are meritless, we find that trial counsel was not ineffective for failing to request a Kloiber charge. Edmiston, supra; Johnson, supra.
(Super.Ct. Op. at 10.) Respondents note that in the Superior Court, Petitioner implied that Ms. Natal spoke with Mrs. Rodriguez before she identified Petitioner, arguing that the issue "was not one of a pre-identification taint but rather one of a corrupt and polluted identification process" and that "the procedures surrounding the identification at the line-up were tainted and hence, the identification at the line-up should have been suppressed." (Pet.'s Super. Ct. Br. at 17, 18-19.) The Superior Court resolved this issue when it stated:
It is clear that an opportunity to observe, even for a limited moment, can form an independent basis for an in-court identification. Baker, supra; Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978). Ms. Natal did observe appellant, albeit for a brief period. Brevity of observation alone, however, will not make an in-court identification unreliable. Id. Moreover, Ms. Natal's discussion with Mrs. Rodriguez at the line-up did not render Ms. Natal's in-court identification unreliable. Baker, supra; Ransome, supra. Ms. Natal spoke with Mrs. Rodriguez about the line-up only after she had identified appellant and not about the identity of the defendant. We fail to see how this discussion could have tainted Ms. Natal's in-court identification, particularly in light of the fact that Ms. Natal independently identified appellant at the line-up prior to any discussion taking place.
(Super.Ct. Op. at 8.)
The defense requested the line-up, and it was conducted with proper sequestration. Respondents argue that there was nothing to suppress because no identification existed prior to the defense-requested line-up one week before trial, and that after the line-up, there was no basis for suppression because there was no impropriety in the line-up. The Third Circuit has related that:
An in-court identification should be suppressed only if: (1) it is the result of an unnecessarily suggestive out-of-court identification procedure which, by its nature, engenders a "very substantial likelihood of irreparable misidentification" and (2) the identification is unreliable.United States v. Hall, 44 Fed. Appx. 532, 534 (3d Cir. 2002) (not precedential) (quoting Manson v. Braithwaite, 432 U.S. 98, 113-114 (1977)). Here, the line-up was not an unnecessarily suggestive out-of-court identification procedure. Rather, the reliability of Ms. Natal's identification was a jury issue. As such, the state courts' adjudication of the claim of ineffective assistance of trial counsel for failing to move to suppress Ms. Natal's identification was neither contrary to nor an unreasonable application of clearly established United States Supreme Court precedent. Thus, this claim also should be denied.
D. Petitioner's Claim that the State Courts Misapplied or Contradicted Clearly Established Federal Law When Adjudicating the Claim that Trial Counsel Was Ineffective for Failing to Object to the Admission of Eyewitnesses' Identification Testimony at Trial.
Petitioner's next claim is that trial counsel, Mr. Moore, failed to object at trial to identification testimony of Mrs. Rodriguez and Ms. Natal at trial. Respondents note that this claim differs from Petitioner's last two claims, and that this current claim has never been adjudicated in state court. Thus, Respondents argue that various independent and adequate state rules preclude Petitioner's return to state court to exhaust it, therefore it is considered technically exhausted but procedurally defaulted and may not be reviewed.
Nonetheless, if this claim could be reviewed, Respondents note that the trial transcript reveals that Mr. Moore repeatedly objected to Mrs. Rodriguez's testimony regarding her preliminary hearing identification. Despite counsel's objections, the testimony was as follows:
Q: [By Ms. Rubino] And who was that person that you picked out in the lineup?A: This man right there.
MS. RUBINO: For the record, she has pointed at Mr. Veal, Your Honor.THE COURT: Let the record so indicate.
Q: [By Ms. Rubino] Prior to going to that lineup last Wednesday, did you see Mr. Veal at any time after the date of the incident of November 30, 1985?
A: I know he was there in the preliminary hearing.
Q: And at that preliminary hearing, did you testify at Mr. Veal's preliminary hearing?A: No.
Q: Were you in the courtroom the day of that preliminary hearing in 1988?A: I was in the courtroom.
Q: And did you tell the detectives anything when you saw Mr. Veal?MR. MOORE: Objection, Your Honor.
THE COURT: Sustained, as to the form of the question.
BY MS. RUBINO:
Q: Did you make any identification at the preliminary hearing?MR. MOORE: Objection, Your Honor.
THE COURT: Overruled.
MS. RUBINO: You may answer.
A: No.
MR. MOORE: I withdraw the objection.
THE COURT: Sometimes it is better we don't make them. No, I am not going to grant your motion. The lady said she couldn't identify anyone.
BY MS. RUBINO:
Q: Did you testify at that preliminary hearing?
A: I didn't testify, but I identified him.Q: To whom did you identify him?
MR. MOORE: Objection, Your Honor.
A: To the detective.
THE COURT: I'm getting very confused. Now, what hearing are you talking about?
MS. RUBINO: At the preliminary hearing, Mr. Veal's preliminary hearing.
THE COURT: When? That's what I think we must establish. Ladies and gentlemen, we are not talking something that happened three days ago.MS. RUBINO: April 13, 1988.
THE COURT: Just about a year ago.
Did you attend a hearing involving Mr. Veal?
THE WITNESS: Yes.
THE COURT: Where was that hearing, in City Hall?
THE WITNESS: In here in the courtroom, City Hall.
THE COURT: Did you testify at that hearing?THE WITNESS: Yes, I told the detective.
THE COURT: No, no. Testify is being — were you sworn like you were today?THE WITNESS: No.
THE COURT: All right. You told the detective something but you didn't testify before a judge; am I right?THE WITNESS: That's right, Your Honor.
THE COURT: You may proceed from that point.
(N.T., 4/17/89, pp. 51-54.) As Respondents note, because the court stated its basis for sustaining Mr. Moore's initial objection, it would not have been productive for Mr. Moore to argue with that ruling in Petitioner's favor. Further, after Mr, Moore objected a second time, the witness answered before the court ruled, and the judge took over questioning until the issue was clarified. The harm had already occurred, therefore any failure by Mr. Moore to object again is understandable. After that time, there was reasonable basis for counsel not to object because Mr. Moore could have reasonably surmised that Mrs. Rodriguez's identification still had a sufficiently independent basis to enure its reliability, despite the problem of an inadvertent suggestive show-up occurring in the crowded preliminary hearing courtroom. Therefore, there was no prejudice to Petitioner, as Mr. Moore testified at the PCRA hearing.
Since counsel was able, through not objecting, to turn the evidence to his advantage, his decision not to object was reasonable and could have caused no Strickland prejudice. Thus, this claim should be denied.
E. Petitioner's Claim That State Courts Misapplied or Contradicted Clearly Established Federal Law When Adjudicating the Claim That Mr. Moore Was Ineffective For Failing to Request a Continuance and Take Any Necessary Steps to Force a Witnesses' Appearance.
Petitioner's next claim, at paragraph 20 of the Second Amended Petition, is that the state courts misapplied or contradicted clearly established federal law when adjudicating the claim that Mr. Moore Was ineffective for failing to request a continuance and take any necessary steps to force the appearance at trial of "Paco", a non-appearing subpoenaed witness who was to provide allegedly exculpatory evidence contradicting Ravenell's testimony that Paco had bought the murder weapon from Petitioner. Respondents contend that this claim was never adjudicated in state court, but that various independent and adequate state rules preclude Petitioner's return to state court, therefore it is considered technically exhausted, but procedurally defaulted and cannot be reviewed by this Court.
F. Petitioner's Claim That State Courts Misapplied or Contradicted Clearly Established Federal Law When Adjudicating the Claim That Mr. Moore Was Ineffective For Failing to Adequately Investigate Allegedly Exculpatory Evidence.
Petitioner's next claim, also found at paragraph 20 of the Second Amended Petition, is that Petitioner's trial counsel, Mr. Moore, was ineffective for failing to adequately investigate any allegedly exculpatory evidence regarding Paco, the non-appearing subpoenaed witness who was to provide testimony contradicting Ravenell's testimony that Paco had bought the murder weapon from Petitioner.
Again, this claim was never adjudicated in state court, and various independent and adequate state rules preclude Petitioner's return to state court to exhaust it. Therefore, it is considered technically exhausted but procedurally defaulted and cannot be reviewed.
G. Petitioner's Claim That State Courts Misapplied or Contradicted Clearly Established Federal Law When Adjudicating the Claim That Appellate Counsel Was Ineffective For Failing to Argue Claim 3 in the Superior Court on Reinstated Direct Appeal.
This claim, found at paragraphs 13, 14, 21, and 22 of the Second Amended Petition, is that Petitioner's appellate counsel, Mr. Rudenstein, was ineffective for failing to argue claims in the Superior Court on reinstated direct appeal.
Because this claim was never raised or adjudicated in state court, and various independent and adequate state rules preclude Petitioner's return to state court to exhaust it. Therefore, it is considered technically exhausted but procedurally defaulted and cannot be reviewed.
With respect to claim 3a, Respondents note that although Petitioner accuses appellate counsel of ineffective assistance of counsel for failing to raise this claim, appellate counsel did, in fact, raise this claim, therefore Petitioner's claim with respect to 3a fails.
H. Petitioner's Claim That Nunc Pro Tune Counsel Was Ineffective for Failing to Raise Claim 3 on Allocator, and For an Actual Conflict of Interest Because He Represented Ravenell At Trial.
Petitioner's final claim, found at paragraphs 15 and 23 of the Second Amended Petition, is that his nunc pro tunc counsel was ineffective and that counsel's representation both of Petitioner and Ravenell constituted a conflict of interest.
Again, respondents correctly note that a criminal defendant has no constitutional right to counsel beyond his first appeal as of right.Coleman v. Thompson, 501 U.S. 722 (1991). Thus, there can be no ineffective assistance of counsel claim for representation at that stage of review. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (citations omitted) (stating constitutional right to counsel is guaranteed to a defendant both for trial and for the first appeal as of right, and no further). Any errors or omissions of counsel in discretionary or collateral proceedings cannot provide a basis for federal habeas review. See Coleman. Thus, this claim fails.
For all of the above reasons, I make the following:
RECOMMENDATION
AND NOW, this ___ day of September, 2003, IT IS RESPECTFULLY RECOMMENDED that the Second Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED and DISMISSED. There is no probable cause to issue a certificate of appealability.