Opinion
CIVIL ACTION No. 03-2369
February 13, 2004
REPORT AND RECOMMENDATION
Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Angel Maldonado ("Petitioner"), an individual currently incarcerated in the State Correctional Institution in Smithfield, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
I. FACTS AND PROCEDURAL HISTORY
The Pennsylvania Superior Court summarized the facts of this case as follows:
On January 22, 1998 Philadelphia Police Officer Wendy Moore was approached by an individual by the name of Jamal Ball, who told her that there had been a shooting at Darien and Somerset Streets. Officer Moore, who was inside her patrol car located approximately one (1) city block from Darien and Somerset, looked in that direction and saw two [2] men, one with a limp, running away. Officer Moore exited her vehicle and walked in the direction from which the two [2] men were running. She found the victim, Luis Ramos seated in the driver sear of a Honda [C]ivic parked in the corner. There were bullet holes in the windshield of the vehicle and Mr. Ramos did not respond when shaken by the officer.
Luis Ramos died several hours later . . . from multiple gun shot wounds. A yellow Nissan which was parked nearby was identified by Ball and another witness, Marvin Velasquez, as the vehicle that the man who shot Mr. Ramos was seen driving. [Petitioner's] mother identified this same vehicle was being driven by her son "Angel" on the day of the shooting.
Jamal Ball and Marvin Velasquez both claimed to have been in the vehicle with Mr. Ramos just before he was shot. According to these eyewitnesses, Ramos was paralyzed as a result of being shot previously. He drove his van to this corner to confront [Petitioner], Angel Maldonado, who had taken a quantity of drugs from one [1] of his sellers without paying.
As the two [2] men began to argue in [S]panish, [Petitioner] turned his back. When he faced the victim again [Petitioner] was firing a gun in [Ramos'] direction.
Some time after the shooting, Velasquez gave a description of the shooter to the police. Later, detectives showed Velasquez some photos and he identified [Petitioner] as the shooter. At trial, however, Velasquez stated that he did not know if [Petitioner] was the shooter. Mr. Silverstein represented [Petitioner] at his preliminary hearing. The Commonwealth called Ball to testify at [Petitioner's] preliminary hearing. Ball implicated [Petitioner] in the killing of Luis Ramos (a.k.a. Columbia). At the preliminary hearing, the Commonwealth provided Mr. Silverstein with Ball's criminal abstract, containing his crimen falsi convictions, and Ball's statement to the police following the killing. The Commonwealth also informed Mr. Silverstein that the police were waiting outside to arrest Ball for an unrelated homicide. Mr. Silverstein did not question Ball concerning any of this information. The court found sufficient prima facie evidence to bind [Petitioner] over for trial on the murder and other related crimes.
[Petitioner] retained Mr. Reif as trial counsel. The Commonwealth filed a motion in limine to allow Ball's testimony from the preliminary hearing to be used at [Petitioner's] trial. [The Honorable] Legrone Davis presided over the motions hearing. Ball took the stand at the hearing on the motion in limine, and informed the court that he would exercise his 5th Amendment right not to testify if called as a witness at [Petitioner's] trial. Judge Davis ruled Ball's intention to take "the 5th" rendered him "unavailable" for trial. Judge Davis also ruled [Petitioner's] prior counsel, Mr. Silverstein, had . . . a full and fair opportunity to cross-examine Ball at the preliminary hearing with the information given to him by the Commonwealth. Judge Davis concluded that Ball's testimony from the preliminary hearing would be admissible at trial.
On the first day of trial, Judge Davis held a hearing on [Petitioner's] motion in limine. [Petitioner's] counsel moved to have Ball's crimen falsi convictions, his statement to the police following Ramos' death, and his affidavit of arrest in an unrelated murder, admitted at trial. Judge Davis did not permit [Petitioner] to admit Ball's written statement to the police or the affidavit of arrest in an unrelated murder. The Commonwealth agreed, however, to the admission of Ball's crimen falsi convictions.Commonwealth v. Maldonado, No. 2933 EDA 2000, at 1-4 (Pa.Super. May 30, 2002) (citations to Notes of Testimony and Trial Court Opinion omitted).
Petitioner waived his right to a jury trial and was tried by the Honorable Gregory E. Smith, Court of Common Pleas of Philadelphia County. Following trial, Petitioner was convicted of third degree murder, carrying a firearm on a public street, carrying a firearm without a license, and possession of an instrument of crime. On January 7, 1999, the court sentenced Petitioner to an aggregate term of fifteen (15) to thirty (30) years of imprisonment.
Petitioner did not file an immediate appeal. Instead, Petitioner filed a petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541et seq., seeking reinstatement of his appellate rights. On October 10, 2000, the court reinstated Petitioner's direct appeal rights. Thereafter, Petitioner filed an appeal with the Pennsylvania Superior Court, which set forth Petitioner's claims as follows:
1. [Whether Petitioner] was denied his federal and state constitutional right to confront witnesses, as well as his state law right to the exclusion of preliminary hearing testimony, when the lower court approved use of the preliminary hearing testimony despite preliminary counsel's ineffectiveness and the curtailment of cross-examination[?];
2. [Whether Petitioner] was deprived of his right to confront witnesses where, once the preliminary hearing notes of testimony of witness Ball were deemed admissible, [Petitioner] was barred from using Ball's prior statement to police and Ball's arrest record as impeachment tools[?];
3. [Whether Petitioner] was deprived of the effective assistance of counsel, and the right to confront witnesses, when inadmissible hearsay evidence was used against him at trial[?]; and
4. [Whether Petitioner] was prejudiced by the errors committed in admitting the preliminary hearing notes, precluding impeachment of witness Ball, and failing to preclude hearsay[?].Commonwealth v. Maldonado. No. 2933 EDA 2000, at 4-5 ( Pa. Super. May 30, 2002). On May 30, 2002, the Superior Court affirmed Petitioner's judgment of sentence. Commonwealth v. Maldonado, 804 A.2d 57 (Pa. Super 2002) (table). Petitioner filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied on October 29, 2002. Commonwealth v. Maldonado, 812 A.2d 1228 (Pa. 2002) (table).
On April 17, 2003, Petitioner filed the instant pro se petition for writ of habeas corpus, raising the following claims:
Petitioner first filed the instant habeas petition on April 17, 2003, but was required to re-file the petition on new forms. Therefore, although Petitioner re-filed the petition on September 2, 2003, the petition is deemed to have been filed on April 17, 2003.
1. Ineffectiveness of counsel at the preliminary hearing for failing to impeach Commonwealth witness Jamal Ball with his pending homicide charges;
2. Suppression court error for refusing to admit Ball's police statement into evidence for impeachment purposes;
3. Denial of the right to confront Ball at the preliminary hearing; and
4. Trial court error for improperly admitting hearsay testimony from Commonwealth witness Marvin Velasquez.
On December 24, 2003, Respondents filed an answer asserting that Petitioner's claims are meritless.
II. STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), which became effective on April 24, 1996, increased the deference federal courts must give to the factual findings and legal determinations of the state courts. Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of United States;" or if (2) the 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)(1)-(2). Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).
The Supreme Court expounded upon this language in Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the Court explained that "[u]nder 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 [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Hameen v. State of Delaware. 212 F.3d 226, 235 (3d Cir. 2000) (citing Williams. 529 U.S. at 389-390). The Court in Williams further stated that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. III. DISCUSSION
The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Hameen, 212 F.3d at 235 (citing Williams. 529 U.S. at 388-389). "In further delineating the `unreasonable application of component, the Supreme Court stressed that an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts, 228 F.3d at 196 (citingWilliams. 529 U.S. at 389).
A. Ineffectiveness of Counsel
Petitioner first argues that counsel at the preliminary hearing was ineffective for failing to confront Commonwealth witness Ball concerning his prior statement to the police, his pending homicide charges and his criminal record. See Ptr.'s Br. at 5. Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court set forth the standard for a petitioner seeking habeas relief on the grounds of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. at 687. Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," a court must be "highly deferential" to counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In determining prejudice, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.
In addressing the merits of this claim, the Pennsylvania Superior Court set forth the law regarding the right to confront and cross-examine witnesses, as well for ineffective assistance of counsel, and stated the following:
[Petitioner] alleges his counsel at the preliminary hearing was ineffective for failing to cross-examine Ball concerning his prior crimen falsi convictions and the fact that Ball told police he had a gun at the scene of the crime, but passed the gun off before he encountered the police. [Petitioner] concludes these errors at the preliminary hearing made Ball's testimony at that hearing inadmissible at trial. We disagree.
* * * *
Appellant was entitled to effective assistance of counsel at his preliminary hearing. Being convicted of a crime of dishonesty would tend to undermine one's credibility. Thus, [Petitioner's] claim that counsel was ineffective for failing to cross-examine Ball concerning his crimen falsi convictions is of arguable merit. Here, the Commonwealth informed [Petitioner's] counsel that the police were going to arrest Ball at the conclusion of the preliminary hearing. Knowing this, [Petitioner's] counsel should have been aware of the real possibility that Ball might invoke his 5th Amendment privilege against self-incrimination at [Petitioner's] trial, and would be "unavailable" to testify. We can adduce no reasonable basis for counsel's failure to question Ball at the preliminary hearing regarding his crimen falsi convictions. However, because the Commonwealth agreed to allow [Petitioner] to introduce evidence of Ball's crimen falsi convictions at trial, no prejudice resulted from counsel's failure to expose Ball's crimen falsi convictions through cross-examination at the preliminary hearing.Commonwealth v. Maldonado. No. 2933 EDA 2000, at 5, 10-11 (citations omitted). Additionally, the Superior Court concluded that Ball could not have been impeached with his pending homicide charges, explaining that:
Ball was unaware of his pending arrest in the unrelated murder when he made his statement to the police. Moreover, when Ball testified, he was still unaware of his pending arrest. Thus, Ball had no obvious motive or bias to lie in order to curry favor with the prosecution.Id. at 14 (citations omitted). Because the Superior Court found the underlying claim to be meritless, the court found that counsel did not act deficiently in failing to impeach Ball with his pending homicide charges during the preliminary hearing. Id. at n. 6.
I find that the decision of the state court is neither contrary to, nor an unreasonable application, of the standard set forth inStrickland. As an initial matter, I agree with the Superior Court's conclusion that counsel acted deficiently in failing to cross-examine Ball about his crimen falsi convictions at Petitioner's preliminary hearing — particularly as counsel knew that the police were going to arrest Ball for a separate homicide at the conclusion of the preliminary hearing, and that Ball might therefore invoke his Fifth Amendment rights and refuse to testify at Petitioner's trial. However, I also agree with the Superior Court's conclusion that Petitioner was not prejudiced by counsel's deficient performance because the Commonwealth agreed to allow Petitioner to introduce evidence of Ball's crimen falsi convictions at trial. As a result of the agreement, the notes of testimony from the preliminary hearing regarding Ball's crimen falsi convictions would not be necessary even if Ball refused to testify and was therefore "unavailable" at Petitioner's trial. Because Petitioner fails to show that he was prejudiced by counsel's actions, Petitioner cannot prevail on this aspect of the ineffectiveness claim.
To prevail in an ineffectiveness claim, a petitioner must show both that counsel acted deficiently, and that the deficient performance prejudiced the petitioner. See Strickland, 466 U.S. at 697.
Moreover, I agree with the Superior Court's finding that counsel did not act deficiently in failing to impeach Ball with his pending homicide charges during the preliminary hearing. There is no evidence that Ball knew at the time of Petitioner's preliminary hearing that an arrest warrant had been issued the previous day for his arrest in an unrelated homicide. Instead, Petitioner hypothesizes that "although Ball may not have known of the warrant, he surely knew of his having committed that crime and thus of the need to curry favor with the police." See Ptr.'s Br. at 6. Petitioner's reasoning is fatally flawed for two (2) reasons: first, Petitioner's hypothesis assumes, without evidence, that Ball actually committed the crime with which he was charged; and second, there is no legal support for the theory that a person who commits a crime has a motive to curry favor with the police before they are arrested for the crime. For all of these reasons, Petitioner is not entitled to relief on any variant of his ineffectiveness claim.
The Superior Court relied upon Commonwealth v. Thomas. 783 A.2d 328 (Pa.Super. 2001), in which the state court held that defense counsel could not be found ineffective for failing to impeach a witness with evidence of charges against him where the witness was not subject to arrest until after he initially identified the defendant. 783 A.2d at 334. Neither Thomas nor the Superior Court's decision in this case conflicts with, or is an unreasonable application of, any United States Supreme Court precedent.
B. Suppression Court Error
Petitioner next argues that the suppression court erred by refusing to admit Ball's police statement into evidence for impeachment purposes. Specifically, Petitioner argues that Ball's statement that he had "passed his gun off to someone else before speaking to the police should have been admitted into evidence because it allegedly contradicted his assertion that he was not an "enforcer" for the victim. In addressing the merits of this claim, the Pennsylvania Superior Court stated the following:
During the preliminary hearing, Ball was not asked whether he had a gun on the day of the shooting. Accordingly, he did not testify to that fact at the preliminary hearing. Ball did admit to being a drug dealer, but denied being an "enforcer." Just because Ball did not volunteer he had . . . a gun on the day of the shooting does not mean he lied when he denied being an "enforcer." At most, it constitutes an omission, which does not render his statement inconsistent for impeachment purposes. Therefore, it was proper to preclude the introduction of Ball's statement to the police for impeachment at trial.Commonwealth v. Maldonado, No. 2933 EDA 2000, at 13-14 (citations omitted).
I find that the decision of the state court is neither contrary to, nor an unreasonable application, any Supreme Court precedent. Petitioner's allegation of error is primarily based on a Pennsylvania decision —Commonwealth v. Begley. 780 A.d 605 (Pa. 2001) — which held that "an attorney may discredit a witness by cross-examining the witness about omissions or acts that are inconsistent with his testimony." 780 A.2d at 627. Here, Ball's statement to the police that he had a gun on the night of the killing is not inconsistent with his testimony at the preliminary hearing that he was not an "enforcer" for the victim. As noted by the Superior Court, Petitioner was not asked at the preliminary hearing whether he had a gun on the day of the shooting; but even if he had been asked, the fact that Ball had a gun does not automatically prove that he was an "enforcer." Therefore, it cannot be said that the suppression court erred on this basis.
Petitioner also argues that "[t]he admission to having a gun and `passing it off is evidence of Ball's own criminal predicament and proof of his potential bias and motive for blaming another," and thus admissible under Davis v. Alaska. 415 U.S. 308 (1974).See Ptr.'s Br. at 8 (misnumbered p. 11). I disagree. The court notes that Ball had not been charged with anything in connection with "passing off the gun at the time he made his statement to the police. Because Ball had not been charged, it cannot be said that he had a motive for incriminating Petitioner. As a result, I conclude that Petitioner is not entitled to relief on this claim.
C. Denial of Right to Confront
In his third claim, Petitioner argues that he was denied the right to meaningfully cross-examine Ball at the preliminary hearing. The Confrontation Clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; Idaho v. Wright, 497 U.S. 805, 813 (1990). Although the essential purpose of confrontation is to secure the opportunity of cross-examination, the Confrontation Clause does not guarantee "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986) (citing Delaware v. Fensterer. 474 U.S. 15, 20 (1985)). The trial judge "retain[s] wide latitude" to limit cross examination to avoid harassment, prejudice, confusion of the issues or repetitive or irrelevant testimony. Id. at 679.
Petitioner's claim is based on the following exchange at his preliminary hearing between Petitioner's counsel and Commonwealth witness Ball:
Counsel: [The victim] carried a gun, did he not?
Ball: I do not know.
Counsel: Do you know whether he had a gun on him that day?
Ball: No I don't.
Counsel: But he may have, right?
Ball: Possibility.
Commonwealth: Objection.
Court: He gave a good answer, possibility.
Counsel: You had seen [the victim] with a gun in the past, is that correct?
Commonwealth: Objection.
Court: Sustained.
See Ptr.'s Br. at 8 (misnumbered p. 11); Resp.'s Br. at 8-9. In considering this claim, the Pennsylvania Superior Court first set forth the same exchange, and then stated the following:
Based on the court's decision to sustain this objection, [Petitioner] claims the court denied him a "full and fair" opportunity to cross-examine Ball about Ramos' [the victim's] propensity towards violence. Whether the victim had a propensity towards violence would be admissible only if [Petitioner] asserted a self-defense in the killing of Ramos. [Petitioner] did not assert self-defense as a justification for the killing of Ramos. [Petitioner's] defense at trial was that he did not kill Ramos. Therefore, Ramos' propensity towards violence was irrelevant to his defense. Furthermore, the record does not indicate that [Petitioner] was denied the opportunity to question Ball about Ramos' violent nature. The Commonwealth did not give any grounds for its objection. The Court did not press the Commonwealth for any grounds, and sustained the objection. We will not speculate as to where [defense counsel] was headed with this line of inquiry. . . .Commonwealth v. Maldonado. No. 2933 EDA 2000, at 9-10 (emphasis in original) (citations omitted).
I find that the decision of the state court is neither contrary to, nor an unreasonable application, applicable Supreme Court precedent. Petitioner did not raise a claim of self-defense in this case, but instead argued that he did not kill Ramos. As noted by Respondents, Petitioner in effect argues that he should have been allowed to question Ball regarding Ramos' past gun possession to show that "I didn't shoot [Ramos], but if I did, he was asking for it." See Resp.'s Br. at 9. Because evidence of the victim's propensity for violence is admissible only if a self-defense claim is raised, the question of whether Ramos carried a gun was not relevant and the trial court properly limited this line of questioning. See Van Arsdall, 475 U.S. at 679. For these reasons, I find that Petitioner is not entitled to relief on this claim.
The court notes that Petitioner's argument exclusively relies on Pennsylvania case law and Pennsylvania rules of evidence indicating that a victim's violent past is admissible to establish that the victim was the aggressor. See Ptr.s Br. at 9-10 (misnumbered pp. 12-13). Petitioner does not cite to any federal law, nor does he counter the state law set forth by the Pennsylvania Superior Court in its disposition of this claim.
D. Trial Court Error — Non-Cognizable
In his fourth and final claim, Petitioner argues that the trial court erred by improperly admitting hearsay testimony from Commonwealth witness Marvin Velasquez. Specifically, he alleges that the trial court improperly allowed certain alleged hearsay testimony in violation of the Pennsylvania Rules of Evidence and Commonwealth v. Trivitt, 650 A.2d 104 (Pa.Super. 1994) — that is, Petitioner asserts only that the admission of the testimony in question violated Pennsylvania law. In addition, the Pennsylvania Superior Court applied only state evidentiary law in its consideration of this claim. See Commonwealth v. Maldonado, No. 2933 EDA 2000, at 17-18. Because Petitioner's fourth claim implicates only matters of state evidentiary law — and not the Constitution or the laws or treaties of the United States, see 28 U.S.C. § 2241(c)(3), 2254(a)-Petitioner's final claim is non-cognizable under federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating it is not the province of the federal court to reexamine a state court's determination of state law); Lewis v. Jeffers, 497 U.S. 764 (1990) (stating claims implicating purely state law are not cognizable in habeas proceedings).
In any event, there is no indication that the Superior Court erred in its analysis of the hearsay issue. The state court held Petitioner was not entitled to relief on this claim because the first portion of the disputed testimony was not offered to prove the truth of the matter asserted and was, therefore, not hearsay, while the second portion of disputed testimony had a non-hearsay purpose. See Commonwealth v. Maldonado, No. 2933 EDA 2000, at 17-18. Because the decision of the state court is neither contrary to, nor an unreasonable application of, any Supreme Court precedent, Petitioner would not be entitled to relief on this claim on the merits.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this day of February, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DENIED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, ___ this day of, ________, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and Respondents' answer thereto, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DENIED.
3. There is no basis for the issuance of a certificate of appealability.