Opinion
CIVIL ACTION NO. 3:16-cv-01607
10-16-2018
BIANCA BUCANO, Petitioner, v. SUPERINTENDENT SMITH, Respondent.
(CONABOY, J.)
() REPORT AND RECOMMENDATION
On August 3, 2016, the Court received and lodged a pro se petition for a writ of habeas corpus submitted pursuant to 28 U.S.C. § 2254, signed and mailed by the petitioner, Bianca Bucano, on July 28, 2016. (Doc. 1). At the time, Bucano was incarcerated at SCI Muncy, which is located in Lycoming County, Pennsylvania. Bucano subsequently paid the requisite $5 filing fee, and the petition was deemed filed on August 22, 2016.
I. STATEMENT OF THE CASE
A. Procedural History
On April 25, 2012, following a jury trial, Bucano was convicted of two counts of corrupt organizations, one count of dealing in proceeds of unlawful activity, ten counts of insurance fraud graded as a felony, one count of insurance fraud graded as a misdemeanor, two counts of theft by deception, three counts of attempt to commit theft by deception, two counts of forgery, and one count of conspiracy. Commonwealth v. Bucano, Docket No. CP-45-CR-0000778-2010 (Monroe Cty. C.C.P.). On August 3, 2012, she was sentenced to an aggregate term of 141 to 282 months imprisonment, and restitution in the amount of $1,146,181.28. Id. Her conviction and sentence were affirmed on direct appeal by the Superior Court of Pennsylvania on May 20, 2014. Commonwealth v. Bucano, 104 A.3d 52 (Pa Super. Ct. 2014) (table decision); see also Commonwealth v. Bucano, No. 599 EDA 2013, 2014 WL 10936629 (Pa. Super. Ct. May 20, 2014) (unpublished opinion). She did not file a petition for allocatur with the Supreme Court of Pennsylvania.
Bucano filed a pro se PCRA petition in the Court of Common Pleas on or about September 26, 2014. Commonwealth v. Bucano, Docket No. CP-45-CR-0000778-2010 (Monroe Cty. C.C.P.). Counsel was appointed to represent Bucano with respect to her PCRA petition. Id. An evidentiary hearing on the PCRA petition was held on February 23, 2015. Id. On June 29, 2015, the PCRA court denied Bucano's petition. Id. The denial of this PCRA petition was affirmed on appeal by the Superior Court of Pennsylvania on April 11, 2016. Commonwealth v. Bucano, 145 A.3d 776 (Pa. Super. Ct. 2016) (table decision); see also Commonwealth v. Bucano, No. 2292 EDA 2015, 2016 WL 1408019 (Pa. Super. Ct. Apr. 11, 2016) (unpublished opinion). Bucano did not file a petition for allocatur with the Supreme Court of Pennsylvania.
Bucano constructively filed the instant pro se federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 28, 2016. (Doc. 1). On October 27, 2016, the respondent filed his answer to the petition. (Doc. 13 & attachs.). On November 18, 2016, Bucano filed her reply. (Doc. 17).
The instant petition was received and docketed by the Court on August 3, 2016, but it appears to have been deposited in the prison mail system on July 28, 2016, and thus effectively filed that day. See R. 3(d), 28 U.S.C. foll. § 2254.
B. Habeas Claims Presented
Liberally construed, see generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-46 (3d Cir. 2013) (discussing a court's obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants), the pro se petition has asserted that Bucano is entitled to relief under 28 U.S.C. § 2254 for the following reasons:
(1) The petitioner's conviction was obtained against the weight of the evidence because the prosecution's witnesses were not credible and gave perjured testimony;
(2) The petitioner was denied a fair trial by prosecutorial misconduct because the prosecutor withheld potentially exculpatory evidence, fabricated evidence, and made misleading statements to the jury during opening and closing statements at trial;
(3) The petitioner was denied a fair trial by the misconduct of an investigator who fabricated evidence, tampered with evidence, withheld potentially exculpatory evidence, gave false testimony at trial, and failed to fully investigate the petitioner's sources of income;
(4) The petitioner was denied a fair trial by judicial misconduct because the trial judge was biased against her and refused to recuse herself from the case;
(5) The petitioner was denied the effective assistance of counsel at trial because her attorney (a) failed to adequately prepare for trial, (b) erroneously advised the petitioner to take the stand to testify in her own defense, (c) failed to call relevant witnesses,
(d) failed to object to false statements by the prosecutor during closing remarks, and (e) refused to present evidence or defenses that the petitioner wished to raise, including a double jeopardy defense;
(6) The petitioner was denied the effective assistance of counsel on direct appeal because her attorney (a) failed to adequately communicate with her regarding her appeal, (b) refused to appeal the trial judge's failure to recuse herself, and (c) refused to present other arguments that the petitioner wished to raise, including prosecutorial misconduct, misconduct by an investigator, double jeopardy, and actual innocence; and
(7) The petitioner was denied the effective assistance of counsel in PCRA proceedings because (a) her appointed counsel refused to present arguments that the petitioner wished to raise, including prosecutorial misconduct, judicial misconduct, misconduct by an investigator, double jeopardy, and actual innocence, and (b) the petitioner was denied the opportunity to represent herself in PCRA proceedings.
Bucano raised claim 1 on direct appeal to the Superior Court, which denied it on its merits. Bucano raised claims 5(a), 5(b), 5(c), 6(a), and 6(b) in her PCRA appeal to the Superior Court, which denied them on their merits. She appears to have raised the remaining claims for the first time in the instant federal habeas petition.
II. DISCUSSION
A. Claim 1: Weight of the evidence
In claim 1, Bucano asserts that her conviction was against the weight of the evidence. This claim is not cognizable on federal habeas review. "A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the 'weight' of the evidence." Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) ("Title 28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them."); Sporish v. Harlow, Civil Action No. 12-4142, 2015 WL 10939692, at *19 (E.D. Pa. May 7, 2015) ("A claim that the verdict is against the weight of the evidence requires that the reviewing court reassess the credibility of the evidence presented at trial, which a federal habeas court is not empowered to do."). Moreover, a habeas petitioner's claim that her conviction was against the weight of the evidence is grounded in state rather than federal law, and thus it is not cognizable on federal habeas review. See McKinnon v. Superintendent, 422 Fed. App'x 69, 75 (2d Cir. 2011) ("[T]he argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus."); Mobley v. Kirkpatrick, 778 F. Supp. 2d 291, 311-13 (W.D.N.Y. 2011); Horton v. Ercole, 557 F. Supp. 2d 308, 324 (N.D.N.Y. 2008).
Accordingly, it is recommended that the petition be denied with respect to Bucano's weight-of-the-evidence claim (claim 1) on the ground that this claim is not cognizable on federal habeas review.
B. Claim 7: Ineffective assistance of PCRA counsel
In claim 7, Bucano claims that she was denied the effective assistance of counsel in state court PCRA proceedings. But freestanding claims of ineffective assistance of PCRA counsel are not cognizable in federal habeas proceedings. See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."); see also Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987) (no constitutional right to counsel in collateral post-conviction proceedings); Coleman v. Thompson, 501 U.S. 722, 755 (1991) (no constitutional right to counsel on appeal from initial collateral post-conviction proceedings). See generally Danner v. Cameron, 955 F. Supp. 2d 410, 417 n.7 (M.D. Pa. 2013) (summarizing law with respect to ineffective assistance of PCRA counsel habeas claims).
Accordingly, it is recommended that the petition be denied with respect to Bucano's ineffective assistance of PCRA counsel claim (claim 7) on the ground that this claim is not cognizable on federal habeas review.
C. Claims 5(a), 5(b), 5(c), 6(a), 6(b): Claims denied on the merits
Bucano's claims 5(a), 5(b), 5(c), 6(a), and 6(b) were denied on the merits by the Superior Court of Pennsylvania, and Bucano did not file a petition for allocatur with the Supreme Court of Pennsylvania.
A federal court may not grant relief on a habeas claim previously adjudicated on the merits in state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.28 U.S.C. § 2254(d). In drafting this statute, Congress "plainly sought to ensure a level of 'deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way." Williams v. Taylor, 529 U.S. 362, 386 (2000); see also Eley v. Erickson, 712 F.3d 837, 846 (3d. Cir. 2013). Consequently, "state-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated." Williams, 529 U.S. at 387. "A federal habeas court may not issue the writ 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 [objectively] unreasonable." Id. at 411; see also Eley, 712 F.3d at 846. Moreover, any factual findings by the state trial and appellate courts are presumed to be correct, and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013); Eley, 712 F.3d at 846.
1. Claims 5(a) , 5(b) , and 5(c): Trial counsel's failure to adequately prepare for trial , to properly advise the petitioner on testifying in her own defense , and to call relevant witnesses
In claims 5(a), 5(b), and 5(c), Bucano claims that she was denied the effective assistance of trial counsel. In claim 5(a), she alleges that her trial counsel failed to review documentary evidence, interview potential witnesses, or present her medical providers as expert witnesses at trial. In claim 5(b), she alleges that her trial counsel failed to confer with her prior to trial and then erroneously advised her at trial to take the stand to testify in her own defense. In claim 5(c), she alleges that her trial counsel failed to call relevant witnesses.
In affirming the PCRA court's denial of post-conviction relief, the Superior Court rejected these claims on their merits, applying the Pennsylvania standard for judging ineffectiveness claims set forth in Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003), which the Third Circuit has previously found "is not contrary to" the federal ineffectiveness standard enunciated by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). See Moore v. DiGuglielmo, 489 Fed. App'x 618, 625-26 (2012); see also Talmadge v. Klem, No. Civ.A. 04-CV-2720, 2005 WL 3488933, at *7 n.10 (E.D. Pa. Dec. 20, 2005) ("Both the Third Circuit and the Pennsylvania Supreme Court have held that this [Fulton] standard is materially identical to that set forth in Strickland."). Accordingly, this Court may not grant relief unless it determines that the state appellate court's decision on the merits was an unreasonable application of Strickland, or that it was based on "unreasonable factual determinations when deciding whether the petitioner received constitutionally effective counsel." Showers v. Beard, 586 F. Supp. 2d 310, 322 (M.D. Pa. 2008).
Under Strickland, a habeas petitioner is required to establish two elements to state a successful claim for ineffective assistance of counsel: (1) "that counsel's performance was deficient," and (2) "that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. The Strickland test is conjunctive and a habeas petition must establish both the deficient performance prong as well as the prejudice prong. See id. at 687; Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010). But, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Strickland, 466 U.S. at 697.
Counsel's performance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. Id. at 687-89. This requires a showing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. 86, 104 (2001) (quoting Strickland, 466 U.S. at 687). When a federal habeas petitioner advances an ineffective assistance of counsel claim that a state court has already rejected on its merits, he is faced with "the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Under this "doubly deferential" standard, the Court must "give[] both the state court and the defense attorney the benefit of the doubt." Burt, 134 S. Ct. at 13. Indeed, a federal habeas court is "required not simply to give the attorney the benefit of the doubt, but to affirmatively entertain the range of possible reasons petitioner's counsel may have had for proceeding as he did." Branch v. Sweeney, 758 F.3d 226, 235 (3d Cir. 2014) (quoting Cullen v. Pinholster, 563 U.S. 170, 196 (2011)) (alterations omitted).
With respect to the prejudice prong of the Strickland test, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
In this case, the Superior Court considered Bucano's ineffectiveness claim with respect to trial counsel's failure to interview various witnesses in preparation for trial, or to call them to testify at trial. Bucano, 2016 WL 1408019, at *2-*3, *12-*13. The state court denied this claim on its merits, finding that Bucano failed to demonstrate that trial counsel's performance was deficient or that she suffered any prejudice at a result. The state court explained:
. . . Petitioner did not at the PCRA hearing call any of the witnesses whom she contends [trial counsel] should have interviewed or called at trial. Thus, . . . she did not establish that the witnesses were available or that they would have testified on her behalf. Similarly, she did not factually demonstrate that the testimony of the witnesses would have been beneficial or helpful in establishing a defense. Additionally, since the substance of what the witnesses purportedly would have said is not factually of record, Petitioner did not and cannot establish prejudice. Accordingly[,] Petitioner failed to meet her burden of proof.Id. at *13. With respect to particular witnesses identified in her PCRA proceedings, the state court found that trial counsel had an informed and reasonable trial strategy to support his decision to not call several of them, that the absence of the testimony of others cause her no prejudice, and that she failed to substantively develop her claims with respect to the remainder of the witnesses. Id. at *13-*14.
Bucano's federal petition does not identify the witnesses or the substance of the testimony they purportedly would have given if called.
The Superior Court also considered Bucano's ineffectiveness claim with respect to counsel's purported failure to prepare her for trial or to adequately advise against testifying in her own defense. Bucano, 2016 WL 1408019, at *2-*3, *14. The state court denied this claim on its merits, finding that, based on the testimony presented by Bucano and her trial counsel at an evidentiary hearing, trial counsel had "properly prepared Petitioner to testify at trial," and thus this ineffective assistance claim was without merit. Id. The state court explained:
Petitioner testified at the PCRA hearing that she never discussed either trial strategy or the issue of whether or not she should testify at trial with Attorney Watkins. Similarly, Petitioner testified that she did not know she was going to testify on her own behalf until the day the trial started when Attorney Watkins supposedly told her that he did not have a defense for her and, as a result, she would have to testify. Having observed petitioner testify and having reviewed the record, we did not (and do not) find this self-serving testimony credible. . . .
Attorney Watkins testified that Petitioner was "insistent upon testifying," despite this being against his advice. He also stated that he had spent, on two separate occasions, three to four hours preparing Petitioner to testify. Besides this testimony, which we find credible, the record
demonstrates that, during the trial, Petitioner was colloquied before she testified. During the colloquy, Petitioner stated that she had discussed testifying with her attorney and was doing so of her own volition. . . .Id. (citations omitted).
Based on the record before the Superior Court, there is nothing to suggest that the Superior Court applied Strickland to the facts of these claims in an objectively unreasonable manner, nor is there anything to suggest an unreasonable determination of the facts by the state court. See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) ("[I]t is the habeas applicant's burden to show that the state court applied Strickland to the facts of the case in an objectively unreasonable manner.").
Accordingly, it is recommended that the petition be denied on the merits with respect to the ineffective assistance of trial counsel claims fairly presented by Bucano to the Superior Court (claims 5(a), 5(b), and 5(c)).
2. Claims 6(a) and 6(b): Appellate counsel's failure to adequately communicate with the petitioner and to appeal the trial judge's failure to recuse herself
In claims 6(a) and 6(b), Bucano claims that she was denied the effective assistance of appellate counsel. In claim 6(a), she alleges that her appellate counsel failed to adequately communicate with her regarding her direct appeal. In claim 6(b), Bucano alleges that her appellate counsel refused to appeal the trial judge's failure to recuse herself.
In affirming the PCRA court's denial of post-conviction relief, the Superior Court rejected these claims on their merits, again applying the Pennsylvania standard for judging ineffectiveness claims set forth in Fulton, 830 A.2d at 572. See Moore, 489 Fed. App'x at 625-26 (holding that the Fulton standard "is not contrary to" the Strickland standard); see also Talmadge, 2005 WL 3488933, at *7 n.10. Accordingly, this Court may not grant relief unless it determines that the state appellate court's decision on the merits was an unreasonable application of Strickland, or that it was based on "unreasonable factual determinations when deciding whether the petitioner received constitutionally effective counsel." Showers, 586 F. Supp. 2d at 322.
Here, the Superior Court considered Bucano's ineffectiveness claim with respect to appellate counsel's failure to appeal the trial judge's failure to recuse herself. Bucano, 2016 WL 1408019, at *15-*16. The state court denied this claim on its merits, finding that Bucano failed to demonstrate that appellate counsel's performance was deficient or that she suffered any prejudice as a result. The state court concluded that:
. . . Petitioner did not prove the requisite prejudice resulting from any ruling issued by Judge Sibum or the failure of counsel to appeal the denial of the recusal motion. Similarly, she did not establish that a challenge to the denial of recusal had arguable merit. Accordingly, this ineffectiveness claim lacks merit.Id. at *16.
The Superior Court also considered Bucano's ineffectiveness claim with respect to appellate counsel's failure to adequately communicate with her. Id. at *22. In particular, the state court noted that Bucano's claim was based solely on appellate counsel's failure "to send her a copy of the appellate brief filed in her direct appeal before the brief was mailed to the Superior Court." Id. The state court denied this claim on its merits, finding that Bucano failed to demonstrate that appellate counsel's performance was deficient or that she suffered any prejudice as a result. Id. The state court specifically found that appellate counsel "had a reasonable basis for mailing her brief before giving Petitioner a copy," and that "Petitioner failed to demonstrate prejudice or establish that, but for the purported error, the result of the appeal would have been different." Id.
Based on the record before the Superior Court, there is nothing to suggest that the Superior Court applied Strickland to the facts of these claims in an objectively unreasonable manner, nor is there anything to suggest an unreasonable determination of the facts by the state court. See Woodford, 537 U.S. at 25.
Accordingly, it is recommended that the petition be denied on the merits with respect to the ineffective assistance of appellate counsel claims fairly presented by Bucano to the Superior Court (claims 6(a) and 6(b)).
D. Claims 2, 3, 4, 5(d), 5(e), and 6(c): Newly raised claims
Bucano's claims 2, 3, 4, 5(d), 5(e), and 6(c) are asserted for the first time in the instant federal habeas petition. They were not previously presented to the state courts on direct appeal or on post-conviction collateral review.
Generally, for this Court to address the merits of a habeas petition, all of the claims contained in the petition must be exhausted. 28 U.S.C. § 2254(b). Ordinarily, "[t]he exhaustion requirement is satisfied only if the petitioner can show that he fairly presented the federal claim at each level of the established state-court system for review." Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004); see also O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) ("[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . ."). "'Fair presentation' of a claim means that the petitioner 'must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.'" Holloway, 355 F.3d at 714 (quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). A federal claim may be exhausted by presenting it either on direct appeal or in post-conviction PCRA proceedings. See O'Sullivan, 526 U.S. at 844 (citing Brown v. Allen, 344 U.S. 443, 447 (1953)). In Pennsylvania, a federal claim may be exhausted by presenting it to the Superior Court of Pennsylvania, either on direct appeal from a state criminal conviction or on appeal from a PCRA court's denial of post-conviction relief. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, Order No. 218, 30 Pa. Bull. 2582 (Pa. May 9, 2000); Pa. R. App. P. 1114 historical notes (Order of May 9, 2000).
Here, it is beyond dispute that Bucano failed to present these claims to the state appellate courts on direct appeal or in her PCRA appeal. Nevertheless, if these claims were to be dismissed without prejudice for failure to exhaust, and Bucano were to return to state court now to attempt to exhaust them in a PCRA petition, her PCRA petition would be untimely and the matter would be dismissed by the state court pursuant to 42 Pa. Cons. Stat. Ann. § 9545(b). See Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001). Under this state statute, a PCRA petition must be filed "within one year of the date the judgment becomes final," subject to certain enumerated exceptions not applicable here. See 42 Pa. Cons. Stat. Ann. § 9545(b). "When a claim is not exhausted because it has not been 'fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is 'an absence of available State corrective process.'" McCandless, 172 F.3d at 260 (quoting 28 U.S.C. § 2254(b)(1)(B)(i)); see also Coleman v. Thompson, 501 U.S. 722, 732 (1991) ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer 'available' to him."). Thus, for the purpose of this federal habeas petition, Bucano's claims 2, 3, 4, 5(d), 5(e), and 6(c) are technically exhausted. See Hurlburt v. Lawler, Civil No. 1:CV-03-0665, 2008 WL 2973049, at *12 (M.D. Pa. Aug. 4, 2008).
"Even so, this does not mean that a federal court may, without more, proceed to the merits. Rather, claims deemed exhausted because of a state procedural bar are procedurally defaulted . . . ." Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). Generally, a federal court will not review a claim that is procedurally defaulted. Johnson v. Folino, 705 F.3d 117, 127 (3d Cir. 2013). A claim is procedurally defaulted when "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule." Coleman, 501 U.S. at 750. The one-year statute of limitations applicable to state PCRA proceedings has been held to be such an independent and adequate state procedural rule. See Glenn v. Wynder, 743 F.3d 402, 409 (3d Cir. 2014); Banks v. Horn, 49 F. Supp. 2d 400, 403-07 (M.D. Pa. 1999). See generally Bronshtein v. Horn, 404 F.3d 700, 708-10 (3d Cir. 2005) (discussing history and strict application of the PCRA statute of limitations since 1999).
Notwithstanding procedural default, a federal court may review a habeas claim where the petitioner can demonstrate cause for the default and actual prejudice as a result, or that failure to review the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; McCandless, 172 F.3d at 260. It is the petitioner's burden to demonstrate circumstances excusing procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also Coleman, 501 U.S. at 750; Lines, 208 F.3d at 160. To demonstrate "cause" for a procedural default, the petitioner must show that "some objective factor external to the [petitioner's] defense impeded [her] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Meanwhile, to demonstrate "actual prejudice," the petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantive disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original); Mutope v. Folino, No. Civ. 3:CV-04-2053, 2005 WL 3132315, at *3 (M.D. Pa. Nov. 22, 2005)). Alternatively, to show that a fundamental miscarriage of justice will occur if the claims are not reviewed, a petitioner must present new evidence that she is actually innocent of the crime for which she has been convicted. Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir. 2002); see also Bousley v. United States, 523 U.S. 614, 623 (1998) ("'[A]ctual innocence means factual innocence, not mere legal insufficiency."); Schlup v. Delo, 513 U.S. 298, 327 (1995) ("[A] petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.").
Bucano has neither presented nor proffered new evidence that she is actually innocent of the myriad offenses for which she was convicted.
1. Claims 2 and 3: Misconduct by the prosecutor and an investigator
In claims 2 and 3, Bucano asserts that she was denied her right to a fair trial by the misconduct of the prosecutor and an investigator. She alleges that the investigator fabricated evidence, tampered with evidence, withheld potentially exculpatory evidence, gave false testimony at trial, and failed to fully investigate the petitioner's sources of income. She alleges that the prosecutor withheld potentially exculpatory evidence, fabricated evidence, and made misleading statements to the jury at trial. Both claims are procedurally defaulted.
Without much elaboration, Bucano argues that the procedural default of these claims should be excused because her court-appointed appellate counsel was ineffective for failing to fully and properly develop these claims on direct appeal, which she appears to argue constitutes "cause" excusing the procedural default. See Martinez v. Ryan, 566 U.S. 1, 11 (2012) ("[A]n attorney's errors during an appeal on direct review may provide cause to excuse a procedural default; for if the attorney appointed by the State is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claims."). But the record reveals that Bucano did not present this ineffective assistance of appellate counsel argument to the Superior Court of Pennsylvania on appeal from the denial of her PCRA petition. As a result, this particular ineffective assistance of counsel claim is itself procedurally defaulted and cannot constitute cause to excuse Bucano's default of her substantive claims of misconduct by the prosecutor and an investigator. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Murray, 477 U.S. at 488-89; Kellum v. Pierce, 24 F. Supp. 3d 390, 405-06 (D. Del. 2014). Moreover, the failure of PCRA counsel to raise this argument on appeal cannot itself constitute cause to excuse procedural default of the ineffective assistance of appellate counsel claim, as there is no constitutional right to counsel on appeal from an initial-review collateral proceeding. See Martinez, 566 U.S. at 16; Coleman, 501 U.S. at 755; Kellum, 24 F. Supp. 3d at 405-06.
Bucano contends that PCRA counsel was ineffective as well for failing to advance the underlying misconduct claims. But under Martinez, defective performance by PCRA counsel may only constitute cause excusing procedural default of an ineffective assistance of trial counsel claim, which is ordinarily not amenable to review on direct appeal, effectively making initial-review PCRA proceedings "a prisoner's 'one and only appeal' as to an ineffective-assistance claim." See Martinez, 566 U.S. at 9. With respect to other categories of federal habeas claims, deficient performance by PCRA counsel may not constitute cause to directly excuse procedural default of such claims. See Coleman, 501 U.S. at 755.
Accordingly, it is recommended that the petition be denied as procedurally defaulted with respect to Bucano's claims of misconduct by the prosecutor and by an investigator (claims 2 and 3).
2. Claim 4: Judicial misconduct
In claim 4, Bucano asserts that she was denied her right to a fair trial by the misconduct of the judge presiding over her criminal trial proceedings. She alleges that the trial judge was biased against her and refused to recuse herself from the case. This claim is procedurally defaulted.
Bucano argues that the procedural default of this claim should be excused because her court-appointed appellate counsel was ineffective for failing to fully and properly develop these claims on direct appeal, which she contends constitutes "cause" excusing the procedural default. See Martinez, 566 U.S. at 11. As previously noted in this report, Bucano presented this same ineffective assistance of appellate counsel claim to the Superior Court on PCRA appeal, and the Superior Court denied this ineffectiveness claim on the merits. See Bucano, 2016 WL 1408019, at *15-*16. We, in turn, have concluded that the state court's decision that appellate counsel was not ineffective was not contrary to or an unreasonable application of Strickland. Therefore, the purported ineffectiveness of appellate counsel cannot constitute cause to excuse the procedural default of this claim. See Coleman, 501 U.S. at 755 ("[C]ounsel's ineffectiveness will constitute cause only if it is an independent constitutional violation."); McCleskey v. Zant, 499 U.S. 467, 494 (1991) ("Attorney error short of ineffective assistance of counsel . . . does not constitute cause and will not excuse a procedural default."); Murray, 477 U.S. at 492 ("Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default . . . ."); Gonzalez v. Superintendent Graterford SCI, 655 Fed. App'x 96, 102 n.8 (3d Cir. 2016) ("[W]here a defendant is represented by counsel, he is required 'to bear the risk of attorney error that results in a procedural default' unless that error rises to the level of constitutionally ineffective assistance of counsel under the standard established in Strickland . . . ."); United States v. Sanders, 3 F. Supp. 2d 554, 558 (M.D. Pa. 1998) ("Attorney error short of ineffective assistance does not excuse procedural default.").
Accordingly, it is recommended that the petition be denied as procedurally defaulted with respect to Bucano's claim of judicial misconduct (claim 4).
3. Claims 5(d) and 5(e): Ineffective assistance of trial counsel
In claims 5(d) and 5(e), Bucano claims that she was denied the effective assistance of trial counsel. She alleges that trial counsel failed to object to false statements by the prosecutor during closing remarks and refused to present evidence or defenses that the petitioner wished to raise, including a double jeopardy defense. These claims are procedurally defaulted.
Bucano argues that the procedural default of this claim should be excused because her court-appointed PCRA counsel was ineffective for failing to fully and properly develop these claims in initial-review PCRA proceedings, which she contends constitutes "cause" excusing the procedural default. In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court of the United States recognized that, under certain circumstances, the procedural default of an ineffective assistance of counsel claim may be excused where the default was caused, in turn, by ineffective assistance of counsel in post-conviction collateral proceedings. See Martinez, 132 S. Ct. at 8-18. Specifically, the Martinez Court held that:
[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [state] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.Id. at 17.
The Martinez Court explicitly limited its holding to cases where state procedural law provided that "claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding"—that is, in states like Arizona, where state procedural law explicitly prohibited the adjudication of ineffective assistance claims on direct appeal. Id. Shortly thereafter, the Supreme Court revisited its Martinez holding, extending it to apply not only to cases where state procedural law expressly prohibited ineffective assistance claims on direct appeal, but where "state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal." Trevino v. Thaler, 569 U.S. 413, 429 (2013). The Third Circuit has subsequently examined Pennsylvania procedural law and found that Martinez applies in Pennsylvania. Cox v. Horn, 757 F.3d 113, 124 n.8 (3d Cir. 2014).
Under Martinez, the failure of a federal habeas petitioner's counsel to raise an ineffective assistance of trial counsel claim in an initial-review collateral proceeding can constitute "cause" if: (1) PCRA counsel's failure itself constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984); and (2) the underlying ineffective assistance of trial counsel claim is "a substantial one," meaning that "the claim has some merit." Martinez, 566 U.S. at 14; see also Glenn, 743 F.3d at 410. "Under Strickland, courts are precluded from finding that counsel was ineffective unless they find both that counsel's performance fell below an objectively unreasonable standard, and that the defendant was prejudiced by that performance." Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002).
In claim 5(d), Bucano claims that her trial counsel failed to object to "false accusations by the prosecution stating petitioner has 2 long-term care policies, [and] that petitioner signed Judi Grate invoices for 10 years, when petitioner only met her in late 2001," and she resigned in 2009. (Doc. 1, at 9-10). But Bucano has failed to meet her burden of demonstrating that the underlying ineffective assistance of trial counsel claim is a substantial one. See Martinez, 566 U.S. at 14; see also Glenn, 743 F.3d at 410. "Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements by the prosecutor, the failure to object during closing argument and opening statement is within the 'wide range' of permissible professional legal conduct, and thus does not constitute ineffective assistance of counsel." United States v. Lively, 817 F. Supp. 453, 466 (D. Del. 1993) (emphasis added); United States v. Lignelli, CR 11-234, 2018 WL 4828509, at *3 (W.D. Pa. Oct. 4, 2018) (quoting Lively). Moreover, given the substantial evidence upon which the jury relied in finding Bucano guilty of participating in a decade-long criminal enterprise and scores of individual counts of fraud, she has failed to demonstrate any actual prejudice caused by these purported misstatements by the prosecutor.
Although Bucano may have only been involved over the course of eight years, give or take, the criminal enterprise itself appears to have predated her involvement.
In claim 5(e), Bucano claims in cursory fashion that her trial counsel failed to raise a double jeopardy defense. (Doc. 1, at 10). But she has failed to provide any factual or legal basis whatsoever for this claim of error. For our part, we find nothing in the record to support a double jeopardy claim. Thus, Bucano has failed to meet her burden of demonstrating that the underlying ineffective assistance of trial counsel claim is a substantial one. See Martinez, 566 U.S. at 14; see also Glenn, 743 F.3d at 410.
Accordingly, it is recommended that the petition be denied as procedurally defaulted with respect to Bucano's newly raised claims of ineffective assistance of trial counsel (claims 5(d) and 5(e)).
4. Claim 6(c): Ineffective assistance of appellate counsel
In claim 6(c), Bucano claims that she was denied the effective assistance of appellate counsel. She alleges that appellate counsel refused to present arguments that the petitioner wished to raise on direct appeal, including prosecutorial misconduct, misconduct by an investigator, double jeopardy, and actual innocence. This claim is procedurally defaulted.
Bucano argues that the procedural default of this claim should be excused because her court-appointed PCRA counsel was ineffective for failing to fully and properly develop these claims in initial-review collateral proceedings, which she contends constitutes "cause" excusing the procedural default. But the Supreme Court of the United States has declined to extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner's state post-conviction counsel provides ineffective assistance by failing to raise that claim. See Davila v. Davis, 137 S. Ct. 2058, 2065-70 (2017); see also Greene v. Superintendent Smithfield SCI, 882 F.3d 443, 450-51 (3d Cir. 2018).
In Martinez, [the Supreme Court] announced a narrow, "equitable . . . qualification" of the rule in Coleman that applies where state law requires prisoners to raise claims of ineffective assistance of trial counsel "in an initial-review collateral proceeding," rather than on direct appeal. It held that, in those situations, "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if" the default results from the ineffective assistance of the prisoner's counsel in the collateral proceeding.Davila, 137 S. Ct. at 2065 (emphasis added). Thus, the purported ineffectiveness of PCRA counsel cannot, as a matter of law, constitute cause to excuse procedural default of an ineffective assistance of appellate counsel claim.
Accordingly, it is recommended that the petition be denied as procedurally defaulted with respect to Bucano's newly raised ineffective assistance of appellate counsel claim (claim 6(c)).
III. RECOMMENDATION
Based on the foregoing, it is recommended that the petition (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE. It is further recommended that the Court decline to issue a certificate of appealability, as the petitioner has failed to demonstrate "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Buck v. Davis, 137 S. Ct. 759, 773-75 (2017); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Dated: October 16, 2018
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 16, 2018. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: October 16, 2018
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge