Opinion
CIVIL ACTION NO. 03-2051
November 17, 2003
REPORT AND RECOMMENDATION
Currently pending before this Court is Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated in the State Correctional Institution at Huntingdon, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On May 30, 1997, following a non-jury trial, the Honorable John J. Poserina of the Philadelphia Court of Common Pleas convicted petitioner of first-degree murder, two counts of aggravated assault and possession of an instrument of crime. Judge Poserina thereafter sentenced him to a mandatory term of life imprisonment on the murder conviction, with concurrent terms on the remaining convictions.
After post-sentence motions were denied, petitioner filed a pro se appeal to the Superior Court, where the court appointed counsel, Paul Messing. On appeal, petitioner presented the following issues for review:
1. Trial court error in permitting him to proceed to trial without a knowing, intelligent and voluntary waiver of his right to trial by jury where he was not advised that the jury would be chosen from members of the community or that a verdict rendered by the jury must be unanimous.
2. The evidence was insufficient to establish beyond a reasonable doubt that petitioner was guilty of any crime where the Commonwealth failed to establish that he fired the shot that killed the victim and wounded two others; and
3. The evidence was insufficient to establish the mens rea intent to kill required for a conviction of first degree murder.
The Superior Court denied the appeal on January 25, 1999, finding his claims to lack merit. Commonwealth v. Ramos, 736 A.2d 684 (Pa.Super. 1999). Subsequently, the Pennsylvania Supreme Court denied petitioner's request for allowance of appeal on April 20, 1999. Commonwealth v. Ramos, 738 A.2d 456 (Pa. 1999).
On April 12, 2000, petitioner filed his first federal petition for writ of habeas corpus. Twelve days later, while that habeas petition was still pending, petitioner filed a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. The court appointed counsel, who thereafter filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1998). Upon consideration of this letter, the PCRA court denied relief on February 2, 2001. On February 26, 2001, his federal habeas petition was dismissed for failure to exhaust state court remedies.
Petitioner appealed the denial of his PCRA petition to the Pennsylvania Superior Court, raising thirteen issues for review. The Superior Court affirmed the dismissal on September 17, 2002. See Commonwealth v. Ramos, 613 A.2d 907 (Pa. 2002). On December 18, 2002, the Pennsylvania Supreme Court again denied petitioner's request for allowance of appeal.
On March 3, 2003, petitioner executed his current Petition for Writ of Habeas Corpus and, ultimately, it was filed with the Clerk of this Court on March 31, 2003. In this document, petitioner sets forth the following claims:
1. The trial court erred in permitting petitioner to proceed to trial without a knowing, intelligent and voluntary waiver of his right to trial by jury where a jury panel was improperly dismissed and where he was advised neither that the jury would be chosen from members of the community nor that any verdict rendered by the jury must be unanimous.
2. The evidence was insufficient to establish guilt beyond reasonable doubt where there was no showing that petitioner fired the fatal shot or caused injuries to others.
3. The evidence was insufficient to establish the crime of first degree murder, as there was no proof of an intent to kill, the requisite mens rea for that offense.
4. The trial court erred in permitting petitioner to proceed to bench trial without knowing, intelligent and voluntary waiver of his right to a jury where he was misled into signing a waiver by promises of a third degree verdict.
5. Trial counsel rendered ineffective assistance based upon his failure to properly raise and preserve the unconstitutional jury trial waiver and colloquy conducted by the court.
6. Appellate counsel was ineffective for failure to raise and argue trial and post-verdict counsel's ineffectiveness in failing to raise and argue unknowing and unintelligent jury trial waiver.
7. Post-verdict counsel was ineffective for not challenging sufficiency and weight of the evidence on direct appeal.
8. Appellate counsel was ineffective for failing to raise and argue prior counsel's ineffectiveness in not challenging whether the Commonwealth met its burden of proof on each and every element of the crimes of aggravated assault, simple assault and possessing and instrument of crime.
9. The prosecutor committed misconduct by withholding evidence of the crime scene fingerprints; and trial counsel ineffectiveness for failing to move to suppress this evidence.
10. Appellate counsel was ineffective for failing to preserve prior counsel's ineffectiveness in not challenging prosecutorial misconduct regarding the withholding of evidence.
11. The prosecutor committed misconduct to provoke petitioner into moving for a mistrial, such that double jeopardy would bar a retrial; and trial counsel ineffectivness for failing to move for a mistrial.
12. Appellate counsel was ineffective for failing to preserve the issue regarding prosecutorial misconduct in causing the request for a continuance.
13. Trial court improperly denied petitioner appointment of appellate counsel and forced him to file pro se notice of appeal.
14. PCRA court erred in ruling to dismiss PCRA petition based on a Finley letter.
15. PCRA court erred in ruling that petitioner was not entitled to appellate counsel and then denying his motion that he be furnished the requested missing portions of trial transcripts and supporting state court documents.
16. Improper obstruction, by Commonwealth and Department of Corrections Officials, of petitioner's right of appeal, with an accompanying breakdown in operating procedures during filing of Notice of Appeal.
Respondent now alleges that this petition is untimely and, thus, may not be considered by the Court. Having considered both parties' arguments, we proceed to a discussion of the matter before us.
II. TIMELINESS
In its first and only response to petitioner's myriad of claims, respondent argues that petitioner is time-barred. As such, it requests that we dismiss the petition without consideration of its merits. We decline to do so.
Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
28 U.S.C. § 2244(d)(1) (1996). If direct review of a criminal conviction ended prior to the statute's effective date, then under Third Circuit precedent, a prisoner has one-year subsequent to the effective date to commence a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998).
The statute also sets forth three other potential starting points for the running of the statute of limitations, as follows:
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). As petition has not alleged any facts indicating that any of these other starting points should be used, the Court does not consider them.
The statute also sets forth three other potential starting points for the running of the statute of limitations, as follows:
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). As petition has not alleged any facts indicating that any of these other starting points should be used, the Court does not consider them.
The statute, however, creates a tolling exception and notes that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). A "properly filed application" is "one submitted according to the state's procedural rules governing time and place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). If petitioner files an out-of-time application and the state court dismisses it as either time-barred or waived, then it is not deemed to be a "properly-filed application." Merritt v. Blaine, 326 F.3d 157, 165-166 (3d Cir. 2003), cert. denied, 124 S.Ct. 317 (2003); Cohen v. District Attorney for Philadelphia County, Civ. A. No. 98-136, 1999 WL 358966, *3 (E.D. Pa. June 4, 1999). Notably, § 2244(d)(2) of the AEDPA excludes from the one year period only the time that a properly filed collateral attack is actually under submission. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104, 120 S.Ct. 1846 (2000) ("AEDPA's statute of limitations is not tolled from the time a final decision is issued on direct state appeal and the time the first state collateral challenge is filed because there is no case `pending' during that interval."); Flanagan v. Johnson, 154 F.3d 196, 199 n. 1 (5th Cir. 1998) ("Under the plain language of the statute, any time that passed between the time that [petitioner's] conviction became final and the time that his state application for habeas corpus was properly filed must be counted against the one year period of limitation.").
In the case at bar, petitioner's judgment became final on July 19, 1999, ninety days after the date when the Pennsylvania Supreme Court denied allocatur. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of direct review or the expiration of time for filing such review, including the time for filing a petition for writ of certiorari in the United States Supreme Court). As this event occurred after the effective date of the AEDPA, petitioner had one year from that time, i.e. until July 18, 2000, to file a federal petition for writ of habeas corpus.
Under S.Ct. R. 13(1), a petition for writ of certiorari from a state court must be filed ninety days after entry of an order from the state's highest court denying discretionary review.
Subsequently, on April 24, 2000-280 days into his one year grace period — petitioner filed his first PCRA petition, thereby tolling the running of the statute of limitations. Time remained suspended until December 18, 2002, when the Pennsylvania Supreme Court denied petitioner's request for review. From that time, petitioner had only eighty-five days — until March 13, 2000 — to file for habeas corpus relief.
Respondent suggests that petitioner used up 286 days at this juncture. The Court does not quite understand how respondent has arrived at this number. Between July 19, 1999 — the date that petitioner's conviction became final — and April 24, 2000 — the date that petitioner filed his PCRA petition — only 280 days elapsed (12 days in July, 31 in August, 30 in September, 31 in October, 30 in November, 31 in December, 31 in January, 29 in February, 31 in March and 24 in April).
The United States Supreme Court has explicitly held that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)." Duncan v. Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 2124 (2001). As section 2244(d)(2) does not toll the limitation period during the pendency of another federal habeas petition, the twelve days between petitioner's first habeas petition and the filing of his PCRA petition counted towards the running of his statute of limitations.
The ninety days during which a petitioner could have filed a petition for certiorari in the United States Supreme Court does not toll the limitations period set forth in section 2244(d)(2). Stokes v. District Attorney of County of Philadelphia, 247 F.3d 539, 543 (3d Cir.), cert. Denied, 534 U.S. 959, 122 S.Ct. 364 (2001).
Petitioner signed the current habeas petition on March 3, 2003, but it was not ultimately filed until March 31, 2003. The fact that the statute of limitations expired sometime between these two dates leaves this Court in somewhat of a conundrum.
Under well-established jurisprudence, a prisoner's pro se submissions are filed at the time of delivery to prison authorities for filing with the court. Houston v. Lack, 487 U.S. 266, 275-276, 108 S.Ct. 2379, 2385 (1988); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998). Consequently, we must discern when such delivery occurred in the instant matter. Reviewing petitioner's submissions, we note that the Affidavit Accompanying his Motion to Proceed in Forma Pauperis was certified by an authorized prison official on March 12, 2002, suggesting that it was in the hands of prison authorities at that point. As petitioner had until March 13, 2002 in which to deliver his petition, we deem it timely filed in this Court.
II. PROCEDURAL DEFAULT
Notwithstanding petitioner's hurdle of the timeliness barrier, several of his claims suffer from procedural default, which precludes our consideration of their merits. Procedural default bars federal courts from reviewing a state prisoner's habeas claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553,reh'g denied, 501 U.S. 1277, 112 S.Ct. 27 (1991). "In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. This rule applies regardless of whether the state law relied upon is substantive or procedural, id., and rests in part on respect for the integrity of procedures "employed by a coordinate jurisdiction within the federal system." Wainwright v. Sykes, 433 U.S. 72, 88, 97 S.Ct. 2497, 2507, reh'g denied, 434 U.S. 880, 98 S.Ct. 241 (1977). Although the issue of procedural default is best addressed by the state courts in the first instance, a federal court may dismiss a petition as procedurally barred if state law would unambiguously deem it defaulted. Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995).
In the case at bar, several of petitioner's claims were deemed either previously litigated or waived. As such, they suffer from the taint of procedural default and may not now be considered.
A. Previously Litigated Claims
Under the PCRA statute, an issue has been previously litigated if either the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue, or it has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 PA. CONS. STAT. § 9544(a). The previous litigation of an issue on direct appeal, which subsequently bars PCRA review of that issue, can serve as an adequate and independent state ground making the issue "procedurally defaulted and thus unavailable for review by the federal courts." Laird v. Horn, 159 F. Supp.2d 58, 76 (E.D. Pa. 2001); see also Blackwell v. Larkins, Civ. A. No. 97-1999, 1998 WL 401752, *4-*5 (E.D. Pa. July 6, 1998) (holding that a claim previously litigated on state grounds and, therefore, not reviewable during PCRA proceedings is procedurally defaulted). Notably, the erroneous application of the "previously litigated" bar by the state courts is not "adequate" to prevent federal review. Holloway v. Horn, 161 F. Supp.2d 452, 480-81 (E.D. Pa. 2001).
In the case at bar, the Pennsylvania Superior Court, on review of petitioner's PCRA petition, considered petitioner's allegations that (1) the trial court erred in permitting petitioner to proceed to a bench trial without a knowing intelligent and voluntary waiver of his right to a jury trial; (2) trial counsel was ineffective in failing to preserve that issue; and (3) appellate counsel was ineffective in failing to preserve trial counsel's ineffectiveness on that issue. Reasoning that it had already addressed the trial court error issue on direct appeal, it deemed the claim previously litigated. In turn, the court found that the two related ineffectiveness claims suffered from the same obstacle, explaining that an appellant "cannot obtain review of previously litigated claims under the PCRA by alleging ineffective assistance of prior counsel and asserting new theories of relief to support the previously litigated claims." Superior Court Opinion (2002), at 6-7.
These three claims correspond precisely to petitioner's habeas claim nos. 1, 4, 5 and 6. By deeming these issues previously litigated, the Superior Court effectively dismissed them pursuant to an adequate and independent state rule, thus branding them procedurally defaulted for purposes of federal habeas review.
B. Waived Claim
A claim may likewise suffer from procedural default if it is found to have been waived. Under the PCRA, a claim is waived if "the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S.A. § 9544(b) (1998); Commonwealth v. Lark, 698 A.2d 43, 46 (Pa. 1997). Alternatively, if the petitioner mentions an issue, but fails to develop any argument with respect to the issue in his brief, the issue may also be deemed waived. See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa.Super. 1996) (internal citations omitted); see also Commonwealth v. Long, 753 A.2d 272, 279 (Pa.Super. 2000); Commonwealth v. Maris, 629 A.2d 1014, 1016-1017 (Pa.Super. 1993). A petitioner acting pro se is not relieved of the duty to properly raise and develop appealable claims. Commonwealth v. White, 674 A.2d 253, 257 n. 6 (Pa.Super. 1996). If a state court finds a claim to be waived, it thereafter becomes procedurally defaulted, barring federal habeas review. See Werts v. Vaughn, 228 F.3d 178, 192 n. 9 (3d Cir. 2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1621 (2001) (quotations omitted) (holding that a state procedural default occurs when the state court refuses to hear the merits of the claim because the defendant waived a PCRA claim he could have raised in an earlier proceeding but failed to do so.).
Petitioner's allegation of ineffective assistance of trial counsel for failure to challenge the weight of the evidence on direct appeal suffers from this precise type of procedural default. The Superior Court of Pennsylvania, on appeal from the denial of the PCRA petition, found the claim waived since petitioner failed to develop the argument in his brief. In light of this unequivocal ruling by the state court, this claim is procedurally defaulted for our purposes.
C. Exceptions to Procedural Default
These findings of procedural default, however, do not automatically foreclose all further federal review. To survive procedural default in the federal courts, the petitioner must either "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
The cause and prejudice analysis embraces two separate elements. A demonstration of cause sufficient to survive dismissal "must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule." Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir.), cert. denied, 504 U.S. 944, 112 S.Ct. 2283 (1992) (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986)); see also Jones v. Frank, 28 F. Supp.2d 956, 963 (E.D. Pa. 1998), aff'd, 202 F.3d 254 (3d Cir. 1999), cert. denied, 529 U.S. 1088, 120 S.Ct. 1720 (2000). Once cause is shown, the petitioner bears the additional burden of proving some resulting prejudice, i.e. that errors at trial "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170, 122 S.Ct. 1584, 1596, reh'g denied, 456 U.S. 1001, 102 S.Ct. 2287 (1982)).
Under the fundamental miscarriage of justice exception, a petitioner must demonstrate that a constitutional violation probably resulted in the conviction of an innocent defendant. Murray, 477 U.S. at 496. A petitioner meets the fundamental miscarriage of justice exception if he "establish[es] that under the probative evidence he has a colorable claim of factual innocence." Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2519 (1992), reh'g denied, 505 U.S. 1244, 113 S.Ct. 21 (1992) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627 (1986)). However, a fundamental miscarriage of justice occurs only in the "extraordinary case," of actual innocence. Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 864 (1995). To establish the requisite probability of actual innocence, the petitioner must show, usually by way of new evidence, "that it is more likely than not that no reasonable jury would have convicted him." Schlup, 513 U.S. at 327; Glass v. Vaughn, 65 F.3d 13, 16-17 (3d Cir. 1995), cert. denied, 516 U.S. 1151, 116 S.Ct. 1027 (1996).
Petitioner offers no cause and prejudice allegation which would serve to excuse his procedural missteps. Nor does he make any allegations of actual innocence that allow the Court to consider his habeas claims under a fundamental miscarriage of justice theory. Consequently, we have no alternative but to dismiss these claims for relief.
III. MERITS OF REMAINING CLAIMS
A. Standard of Review
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for writ of habeas corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues — a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court, as follows:
An application for a writ of habeas corpus on behalf of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless that adjudication of the claim —
(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).
The United States Supreme Court, in the case of Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), interpreted the standards established by the AEDPA regarding the deference to be accorded to state court legal decisions, and more clearly defined the two-part analysis set forth in the statute. Williams, 529 U.S. at 404-405. Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to" the "clearly established federal law, determined by the Supreme Court of the United States." As defined by Justice O'Connor, writing for the majority of the Court on this issue, a state court decision can be contrary to Supreme Court precedent in two ways: 1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or 2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. The Court explained, however, that this "contrary to" clause does not encompass the "run-of-the-mill state-court decisions" applying the correct legal rule from Supreme Court cases to the facts of the prisoner's case." Id. at 406.
To reach such "run-of-the-mill" cases, the Court turned to an interpretation of the "unreasonable application" clause of § 2254(d) (1). It found that a state court decision can involve an unreasonable application of Supreme Court precedent: 1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or 2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context should apply."Williams, 529 U.S. at 407-408. The Court specified, however, that under this clause, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly-established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410.
B. Insufficiency of the Evidence Claims
As a primary matter, petitioner lodges several challenges to the sufficiency of the evidence offered by the Commonwealth at trial. "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction. . . . does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 309, 318-319, 99 S.Ct. 2781, 2789 (1979)). Rather, "[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (emphasis in original).
The current petition for writ of habeas corpus makes three separate, but related objections to the Commonwealth's trial presentation. First, he contends that the evidence was insufficient to establish guilt beyond a reasonable doubt where the Commonwealth failed to prove that he fired the shots that fatally wounded the decedent and caused injuries to others. Second, he claims that the evidence was insufficient to establish the crime of first degree murder, absent proof of an intent to kill. Third, petitioner asserts that post-verdict and appellate counsel were ineffective for failing to challenge the sufficiency of the evidence on the convictions for aggravated assault, simple assault and possessing instruments of crime. We consider each claim individually.
1. Insufficient Evidence to Prove Petitioner Fired Fatal Shot
Reviewing the first claim during direct appeal, the Pennsylvania Superior Court deemed the record sufficient to substantiate the finding that petitioner fired the fatal shot. The court cited to the trial testimony of "Wicked," who was riding with the deceased at the time he was killed. According to the court's findings:
Wicked testified that he saw [petitioner] standing on the sidewalk with a gun as they moved down 9th Street. N.T. 5/29/97, at 121. He yelled to the others that "Eggy has a gun" and to duck. N.T. 5/29/97, at 121-122. Before ducking himself, and after the car had passed [petitioner]'s position on the sidewalk, he looked back and saw [petitioner] standing in the middle of the street in a "rise" position pulling the gun up. N.T. 5/29/97, at 123-124. Between six to ten seconds later gunshots sounded and the back window of the car shattered, showering glass on him. N.T. 5/29/97, at 123-124, 126, 129. When the gunfire stopped, he looked over the seat at Ener and saw that he was bleeding from a wound to the back of the head. N.T. 5/29/97 at 124-125. The Commonwealth also presented substantially similar testimony from Soup, who was seated next to Ener when he was shot. N.T. 5/30/97, at 82-104.
Superior Court Opinion (1999), at 5-6).
Pursuant to 28 U.S.C. § 2254(e), this Court must defer to the findings of fact made by the state court unless petitioner rebuts those findings by clear and convincing evidence to the contrary. Petitioner offers no such evidence; rather, he merely argues that the evidence did not meet the Commonwealth's burden of proof. This unsupported allegation does not suffice for us to discredit the Superior Court's factual determinations. Viewing the evidence, as set forth by the state court, in the light most favorable to the prosecution, a rational trier of fact could have reasonably determined that petitioner fired the fatal shot that killed the victim. Consequently, we dismiss this portion of the habeas corpus petition.
2. Insufficient Evidence to Establish Proof of Intent to Kill
Petitioner's second insufficiency claim contends that, as part of the first degree murder charge, the Commonwealth was required to prove that he had the specific intent to either kill or to use deadly force upon a vital part of another's body. Because the Commonwealth did not establish this requisite mens rea, it could not prove, beyond a reasonable doubt, that he was guilty of first degree murder.
The Pennsylvania Superior Court rejected this same claim, noting that, under Pennsylvania law, use of a deadly weapon against a vital part of the body evidences specific intent to kill. Commonwealth v. Williams, 660 A.2d 1316, 1319 (Pa. 1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 717 (1996). Finding that the evidence clearly established petitioner's use of a firearm, it went on to comment that, "[i]t does not take a finding of fact to discern that shots fired at people through the back window of a moving car could only be directed at their heads." Pennsylvania Superior Court (1999), at 6-7.
We cannot deem this finding to be either contrary to or an unreasonable application of federal law. As noted above, witnesses testified that petitioner fired a gun at the back of the victim's car. Under state law such evidence is sufficient to support a finding of specific intent to kill. See Jackson v. Byrd, 105 F.3d 145, 149 (3d Cir.), cert. denied, 520 U.S. 1268, 117 So. Ct. 2442 (1997) (federal courts in habeas corpus proceedings must "look to the evidence the state considers adequate to meet the elements of a crime governed by state law."). Petitioner's unsupported allegations that the Commonwealth was required to prove more do nothing to change our conclusion. Accordingly, we deny this portion of the habeas petition as well.
3. Ineffective Assistance of Post-Verdict and Appellate Counsel for Failing to Challenge the Sufficiency of the Evidence on the Convictions for Aggravated Assault, Simple Assault and Possessing Instruments of Crime
In conjunction with the above claims, petitioner asserts that both post-conviction counsel rendered ineffective assistance of counsel for not preserving a challenge to the sufficiency of the evidence regarding his convictions for aggravated assault, simple assault and possessing an instrument of crime. In a related claim, he contends that direct appeal counsel should have raised the issue of his post-verdict counsel's ineffectiveness. Considering the ruling of the state court under the applicable federal law, we find no grounds upon which to grant habeas relief.
The Pennsylvania Superior Court reviewed this claim on appeal from the denial of the PCRA petition. Acknowledging its prior ruling that the evidence was sufficient to sustain all of petitioner's convictions, the court deemed petitioner's underlying insufficiency of the evidence claim to be without merit. Because counsel could not be ineffective for not raising a meritless issue, the accompanying ineffective assistance issue claim likewise had to fail.
Our own review compels the same conclusion. The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. CONST., amend. VI. In the case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562 (1984), the Supreme Court set forth a two-prong test — both parts of which must be satisfied — by which claims alleging counsel's ineffectiveness are adjudged. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. at 688. The Supreme Court has explained that:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 107, 76 S.Ct. 158, 163-164 (1955)). A convicted defendant asserting ineffective assistance must, therefore, identify the acts or omissions that are alleged not to have been the result of reasoned professional judgment. Id. at 690. The reviewing court must then determine whether, in light of all circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance." Id. It is well-established that appellate counsel cannot be ineffective for failing to raise a meritless claim. See Strickland, 466 U.S. at 691; Holland v. Horn, 150 F. Supp.2d 706, 730 (E.D. Pa. 2001).
Pursuant to the second prong, the defendant must establish that the deficient performance prejudiced the defense. It requires a demonstration that counsel's errors were so serious as to deprive the defendant of a fair trial or a trial whose result is reliable. Strickland, 466 U.S. at 687. More specifically, the defendant "must show that there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
In the case at bar, the evidence, as found by the Superior Court, was sufficient to support a conviction for first-degree murder for the shooting death of the victim. As the elements of first-degree murder for a shooting homicide necessarily encompass the lesser crimes of aggravated assault, simple assault and possession of an instrument of crime, the evidence was likewise sufficient to support those convictions. Any challenge by counsel would have, therefore, been fruitless. Because counsel's failure to raise a frivolous issue does not violate the Sixth Amendment, we must deny petitioner's claims.
C. Prosecutorial Misconduct Claims
Petitioner next argues that the prosecutor engaged in misconduct so as to deprive him of a fundamentally fair trial. Specifically, petitioner contends that (a) the prosecution improperly withheld evidence of the crime scene fingerprints and (b) the prosecution took action designed to cause trial counsel to move for a mistrial and to obtain a more favorable jury or a bench trial, resulting in a violation of the double jeopardy proscription. As a corollary to these claims, petitioner asserts that both trial counsel and appellate counsel were ineffective in failing to raise/preserve these issues.
Setting forth the factual background for these claims, the Pennsylvania Superior Court noted that, in February of 1997, jury selection was already underway for petitioner's trial. During that process, the Commonwealth provided to petitioner's counsel fingerprint evidence that inculpated petitioner. After trial counsel's motion to preclude this evidence from trial was denied, counsel requested a continuance to investigate it further. The trial court granted that request and dismissed the four selected, but unsworn jurors, as well as the rest of the jury panel. Ultimately, petitioner was convicted at a bench trial.
The state court found no prosecutorial misconduct in those events. With respect to petitioner's first contention that the Commonwealth improperly failed to provide the fingerprint evidence, the court noted that the prosecutor was diligent in turning over the evidence when it became available. Moreover, it remarked that trial counsel requested and was given a continuance in order to investigate the evidence, thereby eliminating any prejudice. With respect to petitioner's second claim, the court remarked that double jeopardy did not attach "simply because the four selected jurors were dismissed, a continuance was granted, and the actual trial was a bench trial." Superior Court Opinion (2002), at p. 10. The court went on to explain that, as a jury had not been impaneled and sworn, petitioner's trial had not yet begun and double jeopardy did not attach. Finding the claims of prosecutorial misconduct meritless, the Superior Court likewise dismissed the ineffectiveness claims.
This Court deems the state's rulings to be neither contrary to nor an unreasonable application of federal law. Under well-establish jurisprudence, a petitioner seeking the writ of habeas corpus based on allegations of prosecutorial misconduct will not succeed merely because the prosecutors' actions "were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, reh'g denied, 478 U.S. 1036, 107 S.Ct. 24 (1986) (quotations omitted). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947 (1982). Thus, to state a claim for habeas relief, a petitioner must show that the prosecutor's actions were so egregious that they fatally infected the proceedings, rendered the entire trial fundamentally unfair, and made the conviction a denial of due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871 (1974); Lesko v. Lehman, 925 F.2d 1527, 1546 (3d Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 273 (1991). Where a prosecutor commits misconduct, the inquiry then becomes whether, in light of the record as a whole, the prosecutor's conduct "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abramson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993), reh'g denied, 508 U.S. 968, 113 S.Ct. 2951 (1993) (internal quotations omitted).
In the case at bar, petitioner suffered no such prejudice. Turning to his first prosecutorial misconduct claim of withholding evidence, it is undisputed that, although defense counsel only received the fingerprint evidence during jury selection, the trial court granted a continuance so that counsel could investigate that evidence. Thereafter, counsel has sufficient opportunity to prepare any necessary rebuttal to the evidence. Thus, even assuming arguendo that the prosecution acted improperly in not turning over such evidence in a diligent matter — a fact which the Superior Court found not to be true — petitioner has neglected to establish that his trial was thereby rendered fundamentally unfair. As we find no merit to this claim, we likewise must reject his claims of ineffective assistance of trial and appellate counsel for failing to preserve the issue.
As to his second prosecutorial misconduct claim, petitioner again fails to set forth any grounds warranting habeas relief. The state court accurately noted that jeopardy attaches when the jury has been impaneled and sworn or, in a bench trial, when the first witness is sworn. Grist v. Bretz, 437 U.S. 28, 37-38, 98 S.Ct. 2156, 2162 (1978). In the petitioner's case, however, four jurors were merely selected; no jury was impaneled and sworn. Thereafter, upon the grant of petitioner's motion for continuance due to the newly-produced fingerprint evidence, those jurors were dismissed, a jury trial was waived and a bench trial proceeded. That latter trial did not, in any sense, violate petitioner's double jeopardy rights. Absent any prosecutorial misconduct, then, neither trial nor appellate counsel had any valid challenge. Consequently, we deny both petitioner's second claim of prosecutorial misconduct, together with the correlating ineffectiveness claims.
D. Trial Court Error in Denying Appellate Counsel
Via his next claim for habeas relief, petitioner argues that, during post-sentencing proceedings, the trial court improperly denied him counsel. More specifically, he contends that the trial court permitted privately-retained counsel to withdraw from the case after sentencing, but then refused to appoint counsel for purposes of direct appeal, thus forcing him to file a pro se notice of appeal. As a result, petitioner could not preserve some of his claims and was without the benefit of transcripts and other portions of the trial record. Such actions by the trial court, argues petitioner, deprived him of his constitutional rights.
The Superior Court again heard this claim during PCRA proceedings and found no basis for relief. It noted that, in October of 1997, petitioner filed a pro se application for appointment of counsel, which was granted by the trial. Counsel was then appointed to represent him on appeal. The Superior Court went on to find that, contrary to petitioner's claim, he was not deprived of trial transcripts and, in fact, the record reflected that appellate counsel did have transcripts throughout the proceedings.
As noted above, under 28 U.S.C. § 2254(e), "a determination of a factual issue made by a State court shall be presumed to be correct. . . . [unless the petitioner can rebut] the presumption of correctness by clear and convincing evidence." Id. Granting such deference to the state courts and absent any contrary evidence from petitioner, we find that he did indeed have counsel on direct appeal. Accordingly, we deny this portion of his habeas petition.
E. PCRA Court Error in Dismissing PCRA Petition Based on a Finley Letter
In a further effort to obtain habeas relief, petitioner asserts that the claims contained in his pro se PCRA petition had merit. Consequently, the PCRA court committed error in ruling to dismiss such claims.
A federal court may review habeas claims of state prisoner's only to the extent that they raise violations of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The Pennsylvania Post-Conviction Relief Act, however, is a state statute. "Claims attacking a state court's application of post-conviction procedures do not state a basis for a federal claim under 28 U.S.C. § 2254." Terry v. Gillis, 93 F. Supp.2d 603, 615 (E.D. Pa. 2000) (quoting Gattis v. Snvder, 46 F. Supp.2d 344, 384 (D. Del. 1999). As this claim is not cognizable in a federal habeas petition, we deny relief. F. PCRA Court Error in Ruling that Petitioner Was Not Entitled to Appellate Counsel and Then Denying His Motion that He Be Furnished the Requested Missing Portions of Trial Transcripts and Supporting State Court Documents
In any event, the Pennsylvania Superior Court noted that the trial court, upon review of the PCRA petition, issued an opinion indicating that it "carefully reviewed the record" and that, based upon its review of the record, together with the Finley letter, it found no merit to the PCRA petition.
Petitioner argues that the PCRA court improperly denied him (1) counsel for appeal of his PCRA petition and (2) missing portions of the state court documents and transcripts. Such denial, he claims, was based on an abuse of discretion and an erroneous application of the law. Reviewing these arguments, we again find no basis for habeas relief.
Under the habeas statute, "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief . . ." 28 U.S.C. § 2254(i). Indeed, there is no constitutional right to an attorney in state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993 (1987). Consequently, petitioner's claimed denial of counsel during his post-conviction appeal presents no grounds for relief.
With respect to his alleged denial of transcripts, the state court found that petitioner was supplied with all relevant transcripts on direct appeal. He now fails to suggest to this Court what portions of the transcript or record were missing during PCRA proceedings. Thus, we to decline to find merit to this claim.
G. Improper Obstruction by State Officials of Petitioner's Right of Appeal
Petitioner's final habeas challenge alleges that, during PCRA proceedings, state officials at SCI-Huntingdon failed to properly deliver his mail to the Philadelphia County Court of Common Pleas. Considering this precise claim, the Pennsylvania Superior Court recognized that there was, in fact, a "breakdown in the court process" resulting in the belated filing of petitioner's notice of appeal from the order of the PCRA court. This breakdown, however, was remedied by the Superior Court's per curiam order of February 8, 2002, deeming the notice of appeal to have been timely filed. In light of these facts, we deny this claim.8
Therefore, the Court makes the following:
RECOMMENDATION
AND NOW, this ___ day of November, 2003, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED. There is no probable cause to issue a certificate of appealability.