Opinion
Civil Action 18-4920
11-08-2021
JESUS RAMOS v. MELISSA HAINSWORTH, et al.
REPORT AND RECOMMENDATION
SCOTT W. REID UNITED STATES MAGISTRATE JUDGE
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Jesus Ramos, who is currently incarcerated at SCI Somerset in Somerset, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
I. Factual and Procedural Background
Following a bench trial in the Court of Common Pleas for Philadelphia County, Ramos was convicted on August 6, 2009, of third-degree murder, conspiracy, and violation of the Uniform Firearms Act. Petition at ¶¶ 1, 2, and 4. On October 29, 2009, he was sentenced to 7 ½ to 15 years' incarceration. Id. at ¶¶ 2, 3.
The Pennsylvania Superior Court set forth the following summary of the factual and procedural aspects of Ramos's case:
Carlos Ruiz (“Ruiz”), a drug dealer, had been fighting over drug-dealing “turf” with Marcos Martinez (“the victim”). Ruiz was badly beaten by the victim and vowed to take revenge. On January 3, 2007, [Jesus Ramos] drove Ruiz in a burgundy Toyota Camry to the 2800 block of North Swanson Street where the victim lived. Ruiz spotted the victim and directed Ramos to slow the car down so the victim would think it was someone coming to purchase drugs and draw him to the car. Ramos complied and when the vehicle stopped, Ruiz exited the vehicle and attempted to shoot the victim. However, no bullets discharged from the gun as it was locked. The victim fled inside a neighbor's house, and Ruiz shot two bullets through the door. One of those bullets fatally injured the victim. Ruiz ran back to the Camry, and Ramos drove him away from the scene. Neighbors called 911 and reported the shooting, describing the getaway car.
Ramos's ex-girlfriend, Alison Ramirez (“Ramirez”), testified to events that occurred shortly before the shooting. Ramirez explained that on the day in question, Ramos arrived at her sister's home located just three blocks from North Swanson Street. Ramirez had previously obtained a protection from abuse (“PFA”) order, so she telephoned 911 upon seeing Ramos. Ruiz, whom Ramirez recognized, then arrived in a burgundy Camry, and Ramos got in the passenger seat. The vehicle left but returned shortly thereafter, and Ramos got out of the car. Police Officers John Boyle and Jason Forsythe responded to the 911 call. Upon arrival, Ramirez pointed to the burgundy Camry at the corner and identified Ramos as the subject of the PFA order. Ramos observed the police and went back to the Camry; however, Ruiz moved to the passenger seat and Ramos got in the driver's seat and drove off.
While the police were interviewing Ramirez, they received a flash report that a shooting had occurred a few blocks away in the 2800 block of Swanson Street. Upon arrival, the victim was lying outside the front door of his neighbor's home with a bullet through his brain. Investigators found two fired cartridge casings and two fired bullets nearby. Officers Boyle and Forsythe heard over the police radio that the perpetrators had fled in a burgundy Toyota Camry - the same car that they had just seen Ramos and Ruiz in minutes earlier a few blocks away. The officers returned to Ramirez's home and learned that Ramos lived in the 2900 block of Waterloo Street; upon arrival, the officers saw a burgundy Camry parked across from Ramos's home. A computer check showed that the vehicle was registered to a woman who lived on Horrocks Street.
In the meantime, Ramos telephoned Ramirez and told her that he had just shot someone. Ramos explained that the gun locked as he was trying to shoot, but he managed to get off two shots through the door of a house. Unbeknownst to Ramos, Ramirez's sister, Marangeli Rivera (“Rivera”), was listening on the other end of the phone. Ramos pleaded with Ramirez to meet with him; she agreed but then hung up the telephone and called 911 to report what she had just heard.
The police instructed Ramirez to go to the police station. Ramirez complied, with her sister accompanying her. While Ramirez was giving a statement to the detectives, Rivera had to leave to pick up her children at school. When she and the children arrived home, she saw Ramos standing on the corner. Rivera called 911 and the police arrived to arrest Ramos for the assault/robbery he had committed on Ramirez the day before and for his continuing violation of the PFA order.
Detective Phillip Nardo testified that he took a statement from Ramos upon his arrest after Ramos waived his Miranda rights. Ramos detailed the nature and extent of his involvement in the shooting. Ramos explained that Ruiz had a previous altercation with the “boys on Swanson Street” over drug dealing and knew that Ruiz wanted to “get back at them.” For weeks after the fight, Ruiz asked Ramos to give him a gun so he could “fuck these guys up.” Three days before the shooting, Ruiz told Ramos that he had secured a gun and had gone over to Swanson Street “to shoot” the victim but did not do so.
On the day of the murder, Ramos agreed to go with Ruiz to Swanson Street to “get these mother fuckers.” While in the car, Ruiz showed Ramos the gun that he was carrying and Ramos stated, “you are going to kill this mother fucker with that.” Ramos then admitted that he drove Ruiz to Swanson Street and explained that he “drove real slowly. I wanted to make it look like a buy.” Ramos stated that Ruiz had the gun right in his lap. When Ruiz spotted the victim, Ramos followed his instruction to reverse the car slowly and stop. Ruiz then got out of the car and attempted to shoot the victim, but the gun did not fire. Ruiz then fired two bullets through the front door, jumped back into the Camry, and yelled to Ramos, “get off the fucking block.” Ramos obeyed and drove off “real fast.”
The police also obtained a statement from Amil Gonzalez, the victim's neighbor who lived at 2837 North Swanson Street. In his January 5, 2008 statement to the police, Gonzalez averred that he was outside of his home when he saw the victim walking towards him from the other end of the street. Gonzalez saw a burgundy car coming up the street at a high rate of speed. The car stopped in front of his house and the passenger got out. The victim then ran into Gonzalez's house and closed the door. The passenger stood by the car and attempted to fire, but the gun misfired. The man then fired two shots at the door, returned to the car, and left the scene. Gonzalez found the victim lying behind the door of his home.
The police subsequently showed Gonzalez a photo array; he identified Ruiz as the person who got out of the burgundy car and shot at his house. When asked if he was certain of his identification, Gonzalez answered affirmatively. Gonzalez also recounted that Ruiz had sustained an earlier beating at the hands of the victim.
At the time of trial, Gonzalez was serving a federal prison sentence. He testified that at the time of the shooting he was inside his house with his wife, Aurelia Delgado. Gonzalez testified that he heard two gunshots but denied seeing who shot the victim. However, in a statement to the police on January 5, 2008 [as described above], Gonzalez gave a different version of events.
The medical examiner testified that the victim died of a gunshot wound to the brain. Police Officer Ernest Bottomer of the Firearms Identification Unit testified that the cartridges and bullets came from the same gun. He also stated that the cartridges found on the scene were consistent with accounts of the shooting. Counsel stipulated that Ramos did not have a license to carry concealed weapons.
Prior to trial, Ramos moved to suppress the statement he gave to the police. A hearing was held and the motion was denied.Commonwealth v. Ramos, No. 289 EDA 2017, 2018 WL 1790395 at **1-3 (Pa. Super. Apr. 16, 2018). (Brackets and references to “Appellant” removed or replaced with “Ramos” for the sake of clarity; brackets now in the quotation are those of the undersigned).
Ramos did not file a timely direct appeal from his judgment of sentence. Id. at *3. Later, however, he filed a PCRA petition seeking the reinstatement of his direct appellate rights. Id. Relief was granted by the PCRA court, and Ramos filed a direct appeal nunc pro tunc. Id. In it, he argued that the evidence was insufficient to support his convictions; that the court erred in denying his pre-trial motion to suppress his confession to police; and that the trial court erred in denying his motion for a mistrial based on the Commonwealth's failure to provide a witness's statement prior to trial. Commonwealth v. Ramos, CP-51-CR-0000561-2008, 2011 WL 7468604 (C.C.P. Phila. July 11, 2011).
The Pennsylvania Superior Court affirmed Ramos's conviction. 2018 WL 1790395 at *3, citing Commonwealth v. Ramos, No. 155 EDA 2011 (Pa. Super. Feb. 15, 2012) (unpublished memorandum). On July 16, 2012, the Pennsylvania Supreme Court denied Ramos's petition for allowance of appeal. Commonwealth v. Ramos, 48 A.3d 1248 (Pa. 2012) (Table).
Subsequently:
Ramos filed a timely PCRA petition on July 30, 2012. Counsel was appointed, and filed an amended petition on Appellant's behalf alleging that Appellant's counsel was ineffective for not calling Appellant as a witness at the pretrial suppression hearing. On September 23, 2016, the PCRA court issued a Pa. R. Crim. P. 907 notice of its intent to dismiss Ramos's petition. After receiving no response from Ramos, the court issued an order dismissing his petition on January 6, 2017. Ramos filed a timely notice of appeal, and he also timely complied with the court's order to file a Pa. R.A.P. 1925(b) concise statement of errors complained of on appeal. The PCRA court issued a Rule 1925(a) opinion on August 15, 2017. Herein, Appellant raises one issue for our review:
1. Did the [PCRA] court err in denying Appellant an evidentiary hearing when … Appellant raised a material issue of fact that trial defense counsel was ineffective in advising Appellant not to testify at [the hearing on] the motion to suppress Appellant's alleged confession to police?
Appellant's Brief at 2.Commonwealth v. Ramos, supra, at 2018 WL 1790395 *3.
In a decision dated April 16, 2018, the Pennsylvania Superior Court denied Ramos relief in his PCRA appeal. Id. The Pennsylvania Supreme Court denied Ramos's petition for allowance of appeal on August 29, 2018. Commonwealth v. Ramos, 192 A.3d 1108 (Pa. Aug. 29, 2018) (Table).
Ramos's pro se petition for habeas corpus relief in this Court was docketed on November 13, 2018. He titled his first claim “Newly Discovered Evidence, ” explaining:
Detective Phil Nordo Badge #936, who took defendant's alleged confession has been suspended with intent to dismiss for misconduct and is on the DA's list of policemen not to call as witnesses. The petitioner believes therefore is (sic) that Det. Nordo coerced the defendant's illegal confession and that the defendant is entitled to an evidentiary hearing in light of this newly discovered evidence.
Petition at ¶ 11, and Supplemental Page 1. Ramos went on to assert that he was held “for many hours without a toilet, running, water, food” and was coerced with threats of violence, physically assaulted, and called insulting names. Id.
Ramos's second claim was that PCRA appellate counsel was ineffective in failing to obtain a hearing before the Pennsylvania Superior Court. Finally, he claimed that the prosecution committed misconduct in failing to reveal until the day of trial that Alison Ramirez would testify that Ramos confessed to her his involvement in the shooting. Id. at ¶ 11, Claim Two and Claim Three.
In a separate section of the §2254 form, however, when asked which claims he had raised in a collateral appeal, Ramos described this claim of ineffective assistance of trial counsel raised in his PCRA petition:
Defendant informed trial counsel at the motion to suppress statement hearing - Defendant informed trial defense counsel of what was done to him by police at the custodial interrogation by the police (Det. Nordo) but based on advice of counsel the defendant did not testify. This advice was so unreasonable that it vitiated the defendant's knowing and intelligent decision not to testify in his own defense. What the defendant would have testified to was that he was sequestered in a holding room without food or water for over
30 hours, that he was not permitted to go to the lavatory and urinated on himself. That his statement was coerced by the police changed the facts stated in the statement and therefore the statement was not true.
Petition at ¶10(a)(5). (Parenthetical in original).
On May 28, 2019, the Honorable Henry S. Perkin, who was then the Magistrate Judge to whom this matter was assigned, granted the Commonwealth's motion for an extension of time to respond while the Philadelphia District Attorney's Office's Conviction Integrity Unit (“CIU”) reviewed the case. Detective Philip Nordo, who prepared Ramos's confession, had been arrested for allegedly sexually assaulting witnesses and suspects, and the CIU was conducting an internal review of the cases in which he was involved. Motion to Stay Proceedings, docketed as Document No. 9.
On October 28, 2019, private counsel entered an appearance for Ramos. Counsel sought leave to file an Amended Petition, and it was deemed filed on February 19, 2020. In the Amended Petition, counsel alleged that the coercive methods used by Detective Nordo to obtain Ramos's confession included sexual abuse. Amended Petition at ¶ 59. He alleged that trial counsel had been ineffective in advising Ramos not to testify at the pre-trial hearing on his motion to suppress his confession. Id. ¶¶ 68-84. He did not assert that the claims raised by Ramos pro se were included in the counseled petition. Therefore, the claim of trial counsel ineffectiveness is the only claim before this Court.
II. Legal Standards
A. Standard for Issuance of a Writ of Habeas Corpus
In enacting the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress significantly limited the federal courts' power to grant a writ of habeas corpus. When the claims presented in a federal habeas petition are adjudicated on the merits in the state courts, a federal court may not grant habeas relief unless the adjudication either (a) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; or (b) 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).
As the United States Supreme Court has explained, a writ may issue under the “contrary to” clause of Section 2254(d)(1) only if the “state court applies a rule different from the governing rule set forth in [United States Supreme Court] cases or if [the state court] decides a case differently than [the United States Supreme Court] has done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). A writ may issue under the “unreasonable application” clause only where there has been a correct identification of a legal principle from the Supreme Court but the state court “unreasonably applies it to the facts of the particular case.” Id. This requires a petitioner to demonstrate that the state court's analysis was “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
Moreover, state court factual determinations are given considerable deference under AEDPA. Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004). A federal habeas court can disagree with a state court's credibility determination, but “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. Timeliness and Amendment of a Habeas Petition: “Relation Back”
A petition for habeas corpus relief must ordinarily be filed within one year of date the petitioner's conviction became final. 28 U.S.C. §2244(d)(1). However, this period is tolled during the pendency of a properly filed application for state collateral review, such as a PCRA petition. 28 U.S.C. §2244(d)(2).
As to amendments to a habeas petition, the United States Supreme Court has explained that “the Civil Rule governing pleading amendments, Federal Rule of Civil Procedure 15, made applicable to habeas proceedings by §2242, Federal Rule of Civil Procedure 81(a)(2), and Habeas Corpus Rule 11, allows pleading amendments with ‘leave of court' any time during a proceeding.” Mayle v. Felix, 545 U.S. 644, 655 (2005); Fed. R. Civ. Pr. 15(a)(2); 28 U.S.C. § 2242 (a habeas petition “may be amended or supplemented as provided in the rules of procedure applicable to civil actions”).
An amendment made after the statute of limitations has run will relate back to the date of the original pleading, however, only if it arises out of the “conduct, transaction, or occurrence” set out in the original pleading. Fed. R. Civ. Pr. 15(c)(1)(B). In the context of a habeas case, this means that the claim in the amendment and some claim in the original petition must be “tied to a common core of operative facts.” Mayle, supra, at 664.
C. Exhaustion and Procedural Default
Before a federal court can consider the merits of a habeas claim, a petitioner must comply with the exhaustion requirement of 28 U.S.C. § 2254(b), giving “the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This requires the claim to have been presented at least to the Pennsylvania Superior Court. Lambert v. Blackwell, supra, at 233-4.
A petitioner's failure to exhaust state remedies may be excused in limited circumstances on the ground that exhaustion would be futile. Lambert v. Blackwell, 134 F.3d 506, 518-19 (3d Cir. 1997). Where such futility arises from a procedural bar to relief in state court, the claim is subject to the rule of procedural default. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). In addition, if the state court does not address the merits of a claim because the petitioner failed to comply with the state's procedural rules in presenting the claim, it is also procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The procedural default doctrine prohibits a federal court from reviewing a habeas claim which was dismissed by the state court based on an independent and adequate state procedural rule. Coleman, supra, at 749; Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007). The doctrine is grounded in concerns of comity and federalism. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). “[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Edwards, supra, quoting Coleman, supra, at 501 U.S. 732.
A procedural rule provides an independent and adequate basis for precluding federal review if: (1) the rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claim on the merits; and (3) their refusal is consistent with other decisions. Nara, at 488 F.3d 199. It is “independent” if it is independent of the federal question presented by the petitioner. Id. It is “adequate” for procedural default purposes if it was “firmly established, readily ascertainable, and regularly followed at the time of the default.” Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001). These requirements ensure that federal review is not barred unless a habeas petitioner had fair notice of the need to follow what could fairly be called rules of general applicability. Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005).
Procedural default can be overcome only where a habeas petitioner shows: (a) cause for his failure to comply with state procedural rules, and prejudice resulting therefrom; or (b) that a fundamental miscarriage of justice will occur if the claim is not considered. Edwards, supra. A showing of cause demands that the petitioner establish that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Coleman, supra, at 501 U.S. 753. Examples of suitable cause include a showing that the factual or legal basis for a claim was not reasonably available to counsel, or a showing that “some interference by officials” made compliance with the state rule impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). Once cause is proven, a petitioner must also show that prejudice resulted from trial errors that worked to the petitioner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494.
A fundamental miscarriage of justice ordinarily requires a showing of strong evidence of actual innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995). This requires the petitioner to present new, reliable evidence of innocence that was not presented at trial. Id. at 324.
D. State Court Rulings on State Law
When reviewing a habeas petition, “a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68. This standard is codified in AEDPA:
[A] district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a). Accordingly, the United States Supreme Court has decided that “federal habeas corpus relief does not lie for errors of state law” because “it is not the province of a federal habeas court to reexamine state-court determination on state-law questions.” Estelle, supra, at 67-8.
Thus, a habeas petitioner can obtain relief for an error involving a state law evidentiary ruling only where it so infected the entire trial that the resulting conviction violated the Due Process Clause. Id. at 70.
E. Ineffective Assistance of Counsel
To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must show (a) that counsel's performance was deficient and (b) that counsel's actions prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1983).
Counsel's conduct is presumed to fall “within the wide range of professional assistance” and it is the petitioner's burden to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, at 466 U.S. 689-90. The inquiry requires courts to be highly deferential to counsel's reasonable strategic decisions and guard against the temptation to engage in hindsight. Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). The mere existence of alternative - even preferable or more effective - strategies does not satisfy the requirements of demonstrating ineffectiveness under Strickland. Marshall, supra, at 307 F.3d 86. Further, counsel cannot be found ineffective for failing to raise a meritless claim. Laffler v. Cooper, 566 U.S. 156, 167 (2012); Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000).
To prove prejudice, the defendant need not show that the outcome of the proceeding would have been different, but 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, at 466 U.S. 694. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” Id. at 694. In other words, the petitioner must show that the “result of the proceeding was fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
III. Discussion
A. Relation Back
According to the Commonwealth, the issue Ramos raises in his counseled petition, alleging ineffectiveness of trial counsel for advising him not to testify at the pre-trial suppression hearing, cannot be addressed here because it is untimely. The Commonwealth argues that the claim was not filed before the running of the AEDPA limitations date, and does not “relate back” to any claim set forth in his original, pro se, petition.
Ramos has conceded in his reply memorandum that the amended habeas corpus petition was filed after the running of the 28 U.S.C. §2244(d) one-year statute of limitations. Reply Memorandum at 3. Thus, the claim is time-barred unless it relates back to Ramos's original, pro se, petition. Ramos argues for relation back, pointing to the language quoted above from ¶ 10 of his pro se petition, where he described how he exhausted the claim at issue in the PCRA case which followed his direct appeal. Ramos argues that it is hypertechnical, and unfair to an uneducated pro se petitioner, to find that a claim not specifically labeled as a claim was never raised at all, citing Richardson v. Superintendent Coal Township SCI, 905 F.3d 750, 566 (3d Cir. 2018) (“We must read pro se pleadings charitably, especially when litigants are imprisoned”).
The Commonwealth, however, has pointed to a case presenting the same facts in which relation back was not permitted. In Riggins v. United States, Civ. A. No. 10-1557, 2011 WL 6210673 (E.D. Pa. Dec. 14, 2011), a petitioner challenging his federal sentence under 28 U.S.C. § 2255, sought to amend his petition to include a claim of ineffective assistance of counsel. “Riggins concede[d] he did not include an ineffective assistance of counsel claim in his original §2255 motion … but argue[d] the amendment nevertheless relate[d] back to the motion because the ineffective assistance claim [arose] out of the same set of facts as the issue Riggins identified as having been raised on direct appeal.” 2011 WL 6210673 at **4-5.
The Riggins judge did not accept this argument. He noted that the §2255 motion form “mentioned” the new claim “solely as the grounds raised in Riggins's direct appeal” and not in the portion of the form which instructed him to “state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States.” Id. at 5. Nor was the claim mentioned in Riggins' 14-page memorandum of law. Id. Thus, “neither the form § 2255 motion submitted by Riggins nor the memorandum of law in support thereof” gave “any indication Riggins was attempting to raise [the new issue] on collateral review.” Id.
Similarly, here, Ramos failed to include the claim at issue here in the section of the §2254 form asking him to state every ground on which he claimed that he was “being held in violation of the Constitution, law, or treaties of the United States.” Petition at ¶10. He was, however, able to describe three other claims in this section. Id. This would suggest that Ramos was not confused by the layout of the form, even though he was acting pro se. Further, although Ramos did not write a 14-page memorandum of law, he did attach to his petition nine supplemental pages in support of his first claim. In them, he discussed mistreatment by Detective Nardo, and suggested that his confession had been coerced, but never mentioned trial counsel ineffectiveness.
Riggins is not, of course, binding here. Further, Ramos's argument is valid to the extent that there could be situations where a claim set forth in the wrong section of the §2254 form would be considered a valid claim. Here, however, it seems clear that Ramos did not intend to raise an ineffectiveness claim regarding his failure to testify at the suppression hearing in his original petition. As in Riggins, the claim raised in his counseled petition does not relate back to his original petition. It is therefore an untimely claim. Ramos has not attempted to argue that he is entitled to equitable tolling of the §2244(d) statute of limitations, and no basis for equitable tolling is apparent. Nevertheless, for the purposes of completeness, I will address the claim on its merits.
B. Ramos Has Not Shown Prejudice Under Strickland
As above, AEDPA permits this court to grant habeas relief on a claim already rejected on its merits by a state court only if the state court's adjudication was contrary to or an unreasonable application of clearly established federal law, or where it was based on an unreasonable determination of the facts. 28 U.S.C. §2255(d).
In Ramos's PCRA appeal, the Pennsylvania Superior Court addressed the claim Ramos raises here; that trial counsel was ineffective in advising him not to testify as a witness at the pretrial suppression hearing regarding his confession to police. It found that, even if Ramos could show that trial counsel had been ineffective, and even if his testimony at the hearing would have resulted in the suppression of his confession to Detective Nardo, Ramos had not shown that he was prejudiced, as required under Strickland. Commonwealth v. Ramos, supra, at 2018 WL 1790395 at *5. This was because “the evidence admitted at trial, aside from Appellant's confession to police, proved Appellant's involvement in the murder of Marcos Martinez, especially Appellant's confession to Ms. Ramirez.” Id.
This decision was not contrary to, or an unreasonable application of, federal law. Ramos argues that he was prejudiced under federal law because, in Arizona v. Fulminante, the United States Supreme Court decided that confessions are “probably the most probative and damaging evidence that can be admitted against [a defendant]” and that this can be true even when the trier of fact hears about a second, separate, confession. 499 U.S. 279, 296 (1991).
Ramos's use of Fulminante to show prejudice under Strickland, however, has been firmly rejected by the United States Supreme Court. Premo v. Moore, like this case, involved the admission of two confessions by the defendant, one to police, and one to two witnesses. 562 U.S. 115, 119 (2011). The petitioner argued that counsel had been ineffective in advising him to enter a plea, without having previously sought to suppress his confession to police.
The Court of Appeals for the Ninth Circuit relied on Fulminante in determining that prejudice existed under Strickland and granting relief. The Moore court reversed the decision of the Ninth Circuit, writing: “there is no sense in which the state court's finding could be contrary to Fulminante, for Fulminante says nothing about prejudice for Strickland purposes [.]” Id. at 129-130. It also wrote: “The Court of Appeals appears to have treated Fulminante as a per se rule of prejudice, or something close to it, in all cases involving suppressible confessions. It is not.” Id. at 130. On the contrary:
Other than for its discussion of the basic proposition that a confession is often powerful evidence, Fulminante is not relevant to the present case. The state postconviction court reasonably could have concluded that Moore was not prejudiced by counsel's actions. Under AEDPA, that finding ends federal review.Id. at 131.
Clearly, Fulminante did not compel a finding that Ramos was prejudiced within the meaning of Strickland. Thus, the Pennsylvania Superior Court's decision was not contrary to federal law.
Nor was the Pennsylvania Superior Court's conclusion that Ramos could not show a reasonable probability that he would have been acquitted if his confession to Detective Nordo had been suppressed based on an unreasonable interpretation of the facts. Interestingly, this is illustrated by a comparison to the facts in Fulminante. There, the United States Supreme Court remarked that there was so little physical or circumstantial evidence that Fulminante might not have been “prosecuted at all” if not for the confessions. 499 U.S. 279 at 297. Also, the second confession might have been found “unbelievable” by the jurors if they had not heard about the first confession. Id. at 298. Thus, the first confession was crucial to Fulminante's conviction.
Here, however, Ramos's confession to police was less crucial. Even if the trial judge, as the trier of fact, never heard about Ramos's confession to police, she would have heard about his confession to Ramirez which - unlike in Fulminante - was unconnected to the other confession. The judge would also have heard Ramirez's sister, Rivera, testify that she overheard Ramos's confession. Further, she would have heard evidence from Ramirez, Rivera, and several police officers, connecting Ramos with the time and neighborhood where the murder took place, and with the burgundy Toyota Camry which Gonzalez tied to the crime. Moreover, Gonzalez identified Ruiz to police, and Ramirez knew Ruiz as the man who was with Ramos immediately before and after the shooting.
On these facts, it was not reasonably probable that Ramos would not have been convicted if his confession to Detective Nordo had been suppressed. Thus, the Pennsylvania Superior Court's decision that Ramos failed to show prejudice under Strickland was reasonable. As the United States Supreme Court pointed out in Moore, that finding ends federal review under AEDPA.
IV. Conclusion
For the reasons set forth above, I now make the following:
RECOMMENDATION
AND NOW, this 8th day of November, 2021, it is respectfully recommended that this petition be DENIED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. The petitioner may file objections to this Report and Recommendation within fourteen days after being served with a copy. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007).