Opinion
Civil Action No. 04-5798.
March 29, 2005
REPORT AND RECOMMENDATION
Bienvenido Ruiz ("the petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 30, 1990, after a non-jury trial with his four co-defendants in the Court of Common Pleas for Philadelphia County, the petitioner was convicted of first degree murder, conspiracy and possessing an instrument of crime ("PIC"). On April 24, 1991, the petitioner was sentenced to a life term of incarceration on the first degree murder charge; sentencing was deferred on the other charges. The petitioner's post-verdict motions and direct appeal were then delayed for several years. It was not until October 13, 1998 that his post-verdict motions were denied; at that time, no additional sentence was imposed for the conspiracy and PIC offenses. The petitioner then pursued his direct appeal, which was unsuccessful. The petitioner is presently serving his life sentence at a state correctional institution.
On January 17, 1990, the victim in this case was severely beaten by the petitioner and his co-defendants; two days later, the victim died from his injuries. See Commonwealth v. Ruiz, No. 3757 Philadelphia 1998, slip op. at 1-2 (Pa.Super. March 16, 2000).
The petitioner raises the following claims. First, trial counsel was ineffective for failing to offer any defense at trial. Second, trial counsel was ineffective for failing to adequately examine any of the prosecution witnesses. Third, trial counsel was ineffective for failing to present any of the witnesses of which the petitioner had informed him. Fourth, trial counsel was ineffective for failing to move to sever the petitioner's trial from that of his co-defendants. Fifth, trial counsel was ineffective for failing to inform the trial court that the petitioner wanted to have a jury trial. Sixth, trial counsel was ineffective for failing to object to the introduction of improperly redacted statements from the petitioner's co-defendants. Seventh, post-verdict counsel was ineffective for the manner he represented the petitioner during post-verdict proceedings. Eighth, direct appellate counsel was ineffective for failing to seek transcripts of the petitioner's pre-trial, trial and post-verdict proceedings. Ninth, direct appellate counsel was ineffective for failing to develop arguments concerning the prosecutor's failure to produce all the documents necessary for the post-verdict hearing. Tenth, direct appellate counsel was ineffective for failing to argue that the petitioner did not receive an adequate post-verdict hearing because no witnesses were presented on his behalf, including trial counsel.
The form of petition the petitioner completed reserves space for only four claims and the petitioner listed all his claims in that space. When one reads the space reserved for each claim, it is apparent that the petitioner has actually presented more than four claims. For this reason, the court lists ten claims rather than four claims. The claims the court has identified as the first, second and third claims are contained in the space on the form reserved for the first claim. The claims the court has identified as the fourth, fifth and sixth claims are contained in the space on the form reserved for the second claim. The claim the court has identified as the petitioner's seventh claim is contained in the space on the form reserved for the third claim. The claims the court has identified as the eighth, ninth and tenth claims are contained in the space on the form reserved for the fourth claim.
After his conviction, the petitioner was no longer represented by trial counsel and he obtained new counsel.
The petitioner obtained new counsel (his third) for his direct appeal after the trial court denied his post-verdict motions.
The District Attorney for Philadelphia County has answered the habeas petition and takes the position that most of the petitioner's claims are procedurally defaulted and that any claims which are not procedurally defaulted lack merit. The petitioner has filed a traverse wherein he maintains that his claims are not procedurally defaulted. The court will first address the question of procedural default. As will be seen, most of the petitioner's claims are procedurally defaulted and cannot be reviewed on their merits. With respect to the one claim which is not procedurally defaulted, the court finds that the petitioner cannot be granted habeas relief based upon it.
In order to be reviewed on its merits, a habeas claim must have been exhausted and not procedurally defaulted. See McAndless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). The traditional rule for exhausting state remedies in Pennsylvania required presentation of a claim to the trial court, the Superior Court of Pennsylvania and the state supreme court. See Evans v. Court of Common Pleas, Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992). However, this rule has changed in light of the state supreme court's order of May 9, 2000, which states that it is not necessary to file a petition for allowance of appeal in order to exhaust state court remedies. The Third Circuit has recently held that, in light of the state supreme court's May 9, 2000 order, it is no longer necessary to present a claim to the state supreme court in a petition for allowance of appeal in order to exhaust state remedies. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). Thus, presentation of a claim to the trial court and Superior Court is now sufficient to exhaust state court remedies.
In a prior decision, the Third Circuit had held that the state supreme court's May 9, 2000 order did not apply to cases in which the time to seek allowance of appeal expired prior to May 9, 2000. Wenger v. Frank, 266 F.3d 218, 226 (3d Cir. 2001). On direct appeal, the Superior Court affirmed the petitioner's conviction on March 16, 2000 and so his time to seek allowance of appeal expired on April 16, 2000. See Pennsylvania Rule of Appellate Procedure 1113(a). Thus, on direct appeal, the petitioner was required to seek allowance of appeal, which he did, in order to exhaust state court remedies. The petitioner was not required to do so when he sought relief under Pennsylvania's Post Conviction Relief Act after the completion of his direct appeal.
If a claim has not been exhausted in the state courts and it is no longer possible to exhaust the claim because no remedy is available to the petitioner in the state courts, the unexhausted claim is procedurally defaulted. See Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001). A common reason why a petitioner who has already completed his direct appeal might no longer have a state court remedy available to him in Pennsylvania is the expiration of the one-year statute of limitations imposed by the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541, et seq. See Keller v. Larkins, 251 F.3d at 415.
The PCRA's statute of limitations generally requires that a PCRA petition be filed within one-year of a conviction becoming final on direct review. See 42 Pa. C.S.A. § 9545(b)(1). A conviction becomes final on direct review when discretionary review is complete in the state supreme court and the United States Supreme Court or at the expiration of the time to seek such review. See 42 Pa. C.S.A. § 9545(b)(3). On direct appeal in this case, the state supreme court denied the petitioner's petition for allowance of appeal on September 22, 2000. The petitioner did not thereafter seek certiorari in the United States Supreme Court and the time for him to do so expired ninety days later, on December 22, 2000. See Sup. Ct. R. 13(1). Therefore, the PCRA statute of limitations began to run for the petitioner on December 22, 2000.See 42 Pa. C.S.A. § 9545(b)(1), (b)(3). It expired one year later on December 22, 2001. For this reason, the petitioner can no longer file a PCRA petition and, if any of his habeas claims are unexhausted, they are also procedurally defaulted. See Keller v. Larkins, 251 F.3d at 415.
The PCRA statute of limitations has three, alternative dates for it to begin to run; the alternative start dates depend on the existence of special circumstances concerning the claim or claims raised. See 42 Pa. C.S.A. § 9545(b)(1)(i)-(iii). None of the petitioner's claims implicate these special circumstances.
A habeas claim can also be procedurally defaulted if it has been presented to the state courts but the state courts have refused to consider the claim on its merits because, in presenting the claim, the petitioner failed to comply with some state rule of procedure. See Harris v. Reed, 489 U.S. 255, 262-63 (1989). If the state court relies upon an adequate and independent state procedural rule to deny relief, the claim is procedurally defaulted. Id. Further, if the state court finds the claim is barred from review based on an adequate and independent state procedural rule and, in an alternative holding, the state court also reviews the merits of the claim, the habeas court may nonetheless rely upon the procedural default to bar habeas review of the claim. Id. at 264 n. 10.
A procedurally defaulted claim cannot be reviewed unless "the [petitioner] can 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 claim will result in a fundamental miscarriage of justice."Coleman v. Thompson, 501 U.S. 722, 750 (1991). In order to demonstrate cause, the petitioner must show that "some objective factor external to the defense impeded [the petitioner's] efforts to comply with the state's procedural rule." Id. at 753 (citation omitted). Examples of cause include: (1) a showing that the factual or legal basis for a claim was not reasonably available; (2) a showing that some interference by state officials made compliance with the state procedural rule impracticable; (3) attorney error that constitutes ineffective assistance of counsel. Id. at 753-54.
The fundamental miscarriage of justice exception is limited to cases of "actual innocence". Schlup v. Delo, 513 U.S. 298, 321-22 (1995). In order to demonstrate that he is "actually innocent", the petitioner must present new evidence of his innocence. Id. at 316-17. This evidence need not be directly related to the habeas claims the petitioner is presenting because the habeas claims themselves need not demonstrate that he is innocent. See id. at 315. The court must consider the evidence of innocence presented along with all the evidence in the record, even that which was excluded or unavailable at trial.Id. at 327-28. Once all of this evidence is considered, the petitioner's defaulted claims can only be reviewed if the court is satisfied "that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327.
The court has reviewed the claims the petitioner raised on direct appeal. On direct appeal, the petitioner raised claims that trial counsel was ineffective for failing to pursue a motion to sever his trial from his co-defendants, that trial counsel was ineffective for failing to object to the introduction of improperly redacted statements of his co-defendants, and that trial counsel was ineffective for failing to adequately and fully prepare for trial. See Commonwealth v. Ruiz, No. 3757 Philadelphia 1998, slip op. at 3, 4, 7 (Pa.Super. Mar. 16, 2000) ("Direct Appeal Opinion"). With respect to the last of these claims, the petitioner complained that trial counsel failed to make an opening statement, presented no evidence and gave a vague and confusing closing argument. Id., slip op. at 7. The first claim the petitioner raised on direct appeal is the same as his fourth habeas claim and the second claim he raised on direct appeal is the same as his sixth habeas claim. The third claim the petitioner raised on direct appeal appears to be similar to his first and third habeas claims. The second habeas claim involves a challenge to trial counsel's performance based on a failure to adequately examine the prosecution's witnesses, this allegation was not raised in the direct appeal.
As explained previously in footnote 5, the petitioner was required to seek allowance of appeal from the state supreme court on direct appeal in order to exhaust state remedies. The court does not have a copy of the petition for allowance of appeal ("allocatur petition") that the petitioner filed on direct appeal. However, the District Attorney does not argue that the petitioner failed to include in his allocatur petition any claim that he presented to the Superior Court on direct appeal. Therefore, the court will rely upon the claims the petitioner presented to the Superior Court on direct appeal.
The court has also reviewed the claims the petitioner raised during his PCRA proceedings. In his PCRA appeal, the petitioner raised claims that direct appellate counsel was ineffective for failing to challenge the performance of trial and post-verdict motion counsel for their failure to raise a challenge to the introduction of improperly redacted statements of the petitioner's co-defendants. See Commonwealth v. Ruiz, No. 1007 EDA 2003, slip op. at 3 (Pa.Super. April 8, 2004). These claims are not the same as any of the petitioner's habeas claims because, in his habeas petition, the petitioner does not challenge direct appellate counsel's performance with respect to the alleged impropriety of the redacted statements of his co-defendants.
The petitioner filed a PCRA petition on November 29, 2000. The trial court denied PCRA relief on February 13, 2001. The petitioner then appealed to the Superior Court and the Superior Court affirmed the denial of PCRA relief on April 8, 2004. The petitioner next sought allowance of appeal from the state supreme court, which was denied on November 10, 2004.
Based on the court's review, the petitioner did not present his second, fifth, seventh, eighth, ninth or tenth claims to Pennsylvania's courts. Thus, those claims are unexhausted and, because the petitioner can no longer file a PCRA petition in order to exhaust them, the claims are procedurally defaulted.
In his traverse, the petitioner does not argue that the expiration of the PCRA statute of limitations is not an independent and adequate state law basis to procedurally bar claims from habeas review. It would be futile for him to advance such an argument. See Whitney v. Horn, 280 F.3d 240, 250-52 (3d Cir. 2002).
The court has found that the petitioner raised on direct appeal claims which are similar to his first and third habeas claims and that he raised his sixth claim. When the Superior Court considered the claims that are similar to his first and third habeas claims, it found the petitioner had waived them because he had failed to properly develop and support the claims, which state law required him to do in order to obtain appellate review of the claims. See Direct Appeal Opinion at 7-8 (citing Pennsylvania Rule of Appellate Procedure 2119(a)). Likewise, when the Superior Court reviewed the petitioner's sixth habeas claim on direct appeal, it found that he had failed to properly develop and support the claim. See Direct Appeal Opinion at 6-7 (citing Commonwealth v. Zewe, 663 A.2d 195, 199 (Pa.Super. 1995);Commonwealth v. Sneddon, [ 738 A.2d 1026, 1028-29 (Pa.Super. 1999)]; Commonwealth v. LaCava, 666 A.2d 221, 235 (Pa. 1995).
The petitioner argues that the state procedural rule the Superior Court cited is not adequate and independent of federal law so that his failure to comply with the rule does not constitute a procedural default of his first, third and sixth claims. The petitioner maintains that the rule is not independent because the state court did not clearly and expressly rely upon the rule and that the rule is not adequate because it was not firmly established and regularly followed between 1998 and 2000, the time his direct appeal was pending in the Superior Court.
The habeas corpus procedural default doctrine is based upon the "adequate and independent state ground doctrine." Harris v. Reed, 489 U.S. 255, 260 (1989) (citing Wainwright v. Sykes, 433 U.S. 72, 78-79, 81-82, 87 (1977)). In order for a federal court to rely upon a state procedural rule to bar habeas relief, the state procedural rule must be independent of federal law and it must be an adequate basis for the state court's decision.See Harris v. Reed, 489 U.S. at 260. A state rule is independent of federal law when the resolution of the state rule does not depend upon a federal constitutional ruling. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). A state rule is adequate if it is strictly or regularly followed. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988).
The state procedural rule at issue in this case holds that a claim will not be considered on appeal if the appellant fails to develop and support the claim in his appellate brief. This rule is not at all dependent on any federal constitutional ruling. Thus, the rule is independent. See Ake v. Oklahoma, 470 U.S. at 75.
The petitioner's contention that the rule at issue is not independent because the state court did not clearly and expressly rely upon the rule reflects a misunderstanding of the meaning of "independent" for purposes of procedural default. In any event, the state court did clearly and expressly rely upon the rule when it declined to address the petitioner's first, third and sixth claims. See Direct Appeal Opinion at 6-8.
The court's review of Pennsylvania authority indicates that the procedural rule the Superior Court relied upon is strictly and regularly followed. First of all, Pennsylvania Rule of Appellate Procedure 2119(a) requires that the argument section of the appellate brief contain discussion and citation of the pertinent authorities. The historical note attached to the rule indicates that the rule has existed in Pennsylvania since 1979, well before the petitioner filed his appellate brief. Further, it is well established in Pennsylvania that the failure to comply with the rule with respect to a claim will result in waiver of the claim.See e.g., Commonwealth v. LaCava, 666 A.2d 221, 235 (Pa. 1995) (citing Pennsylvania Rule of Appellate Procedure 2119(a) and Commonwealth v. Jackson, 431 A.2d 944, 945 (Pa. 1981));Commonwealth v. Sneddon, 738 A.2d 1026, 1028-29 n. 1 (Pa.Super. 1999) (citing Pennsylvania Rule of Appellate Procedure 2119(a)); Commonwealth v. Zewe, 663 A.2d 195, 199 n. 6 (Pa.Super. 1995) (citing Pennsylvania Rule of Appellate Procedure 2119(a) and Commonwealth v. Rodgers, 605 A.2d 1228 (Pa.Super. 1992)). The consistent application of this rule before and during the time the petitioner's direct appeal was pending indicates the rule is adequate. See Johnson v. Mississippi, 486 U.S. at 587. For these reasons, the state procedural rule which the Superior Court relied upon when refusing to review the petitioner's first, third and sixth claims is an adequate and independent state law ground and the claims are procedurally defaulted.
The court has found that the petitioner has procedurally defaulted most of his claims. In his petition and in his traverse, the petitioner makes no effort to demonstrate cause and prejudice to excuse the procedural defaults of his claims. Thus, these grounds cannot excuse the default of his claims. However, while the petitioner does not explicitly invoke the fundamental miscarriage of justice exception in his traverse, he has submitted a notarized statement from Frank C. Filer, which is dated June 1, 1994. The statement describes events which appear to relate to the January 17, 1990 assault on the victim. The court will consider whether the statement demonstrates that the petitioner is actually innocent.
The petitioner's fourth claim was exhausted on direct appeal and, as will be explained below, the claim was adjudicated on its merits by the Superior Court. Thus, the fourth claim is not procedurally defaulted.
Mr. Filer's statement indicates that sometime in January 1990, at the corner of Darien and Bristol Streets, a large man (approximately six feet, three inches tall and weighing 210 pounds) gave the petitioner $20 for some cocaine. After taking the money, the petitioner went into an alley. After some time passed, the large man went into the alley to search for the petitioner. The large man returned and went to his car. As the large man reached his car, the petitioner returned to the corner of Darien and Bristol Streets. The large man approached the petitioner and struck the petitioner in the face, using an expletive and stating that the petitioner would never beat him again. The large man then picked the petitioner up into the air and threw him to the ground. At this point, four other men came to the petitioner's aid and the large man began to fight with them. While this was gong on, Mr. Filer went to his car and drove away. As he was leaving, he saw two of the men who had come running help the petitioner up off the ground. Mr. Filer states that he never saw the petitioner strike the victim.
This statement describes the victim assaulting the petitioner sometime in January 1990 because the petitioner received money from the victim in exchange for drugs but failed to provide any drugs. At trial, an eyewitness, Robert Roberson, testified that, on January 17, 1990 in the area of Darien and Bristol Streets, the petitioner took money from the victim for drugs but then did not deliver the drugs. (N.T. 8/2/90 (afternoon) at 8-10). The victim and the petitioner subsequently began fighting, id. at 10, but the victim got the better of the petitioner and was administering a good beating to the petitioner before the four co-defendants came to the petitioner's aid. Id. at 40. Given the similarity between the events Mr. Filer described and the events Mr. Roberson described, it is easy to conclude that Mr. Filer is describing the day the victim was killed even though Mr. Filer did not identify the precise date. However, even if one were to assume that Mr. Filer was accurately describing the events he had seen, Mr. Filer omits the most relevant events, namely the beating the victim endured once the four co-defendants came to the petitioner's aid and which resulted in the victim's death.
The District Attorney has provided the court with a copy of the transcript of the two day trial of the petitioner and his four co-defendants. The trial transcript consists of three volumes. The first volume covers the morning session of August 2, 1990, the second volume covers the afternoon session of August 2, 1990 and the third volume covers the entire day of August 3, 1990.
At trial, Mr. Roberson testified that the petitioner was initially aided by two co-defendants, Tracy Marrero and Fidel Santiago. (N.T. 8/2/90 (afternoon) at 11). As the three were fighting with the victim, two more co-defendants, Santos Delarosa and Raymond Santiago, joined in. Id. at 12. At that point, the victim ran away toward a nearby park. Id. Tracy Marrero then used a pole to trip the victim and the petitioner, Santos Delarosa and Raymond Santiago began to kick the victim while he was on the ground. Id. at 13. While this was going on, Tracey Marrero hit the victim in the head with a pole a couple of times. Id. The victim tried to pick up a tree branch to defend himself but dropped it. Id. at 13-14. Fidel Santiago then picked up the tree branch and used it to hit the victim. Id. at 14.
At trial, the petitioner's statement from January 22, 1990 was also introduced into evidence. In that statement, the petitioner admitted that, on January 17, 1990 while at the corner of Darien and Bristol Streets, he had taken money from the victim for drugs but then had not delivered any drugs to the victim. (N.T. 8/3/90 at 43-44). The victim subsequently confronted the petitioner and punched him in the face. Id. at 44. After the petitioner was punched by the victim, four other men came to his aid. Id. at 45. The petitioner stated that the other four men chased the victim into the park and he followed along. Id. at 45. Two of the four were just kicking the victim and the other two of the four were beating the victim with white, metal bars. Id. at 45-46. The petitioner admitted that he kicked the victim before two of the men beat the victim with the metal bars. Id. at 51.
The petitioner's January 22, 1990 statement was redacted to remove the names of his four co-defendants; his four co-defendants were identified in the redacted statement as B, D, E and A. (N.T. 8/3/90 at 45).
By contrast, Mr. Filer indicates that he left the scene of the crime before the victim was beaten. Thus, Mr. Filer does not know whether, after being helped by his friends, the petitioner joined in the beating of the victim. That is, since Mr. Filer did not actually see the fatal beating take place, he cannot exclude the petitioner from having participated in the killing of the victim. Further, Mr. Roberson testified that the petitioner had kicked the victim during the beating and the petitioner gave a statement wherein he admitted that he had kicked the victim during the beating the victim endured. Because of this evidence, particularly the petitioner's admission that he had participated in the attack which caused the victim's death, and because Mr. Filer's statement does not exclude the petitioner as a participant in the crime, Mr. Filer's statement, when considered with all the other evidence in the record, does not make it more likely than not that no reasonable fact finder would have found petitioner guilty beyond a reasonable doubt. For this reason, Mr. Filer's statement does not establish the petitioner's actual innocence and it does not permit consideration of the petitioner's procedurally defaulted claims.
The petitioner's fourth claim remains. The Superior Court addressed this claim on its merits. See Direct Appeal Opinion at 4-5. The Superior Court adjudicated the petitioner's ineffective assistance of counsel claim by concluding that the underlying claim, that the petitioner's trial should have been severed from that of his co-defendants, lacked merit under state law. Id. Since the underlying claim lacked merit, the Superior Court concluded that trial counsel could not be ineffective for having failed to pursue a meritless claim. Id. at 5.
When a state court has adjudicated a petitioner's habeas claim, habeas relief can be granted only if the state court's adjudication of the claim was contrary to clearly established United States Supreme Court precedent or if it was an unreasonable application of clearly established United States Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). A state court decision is contrary to Supreme Court precedent when the state court applies a rule that contradicts the governing law set forth in Supreme Court cases. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is also contrary to Supreme Court precedent when the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and the state court nevertheless reaches a result which is different from Supreme Court precedent. Id. at 406.
A state court decision is an unreasonable application of clearly established Supreme Court precedent when the state court identifies the correct rule from the Supreme Court's decisions but applies the rule in an objectively unreasonable manner. Id. at 413. Although 28 U.S.C. § 2254(d)(1) focuses on Supreme Court precedent, when deciding whether a state court applied Supreme Court precedent in an objectively unreasonable manner, it is permissible to consider how the lower federal courts have applied that precedent. See Fischetti v. Johnson, 384 F.3d 140, 149 (3d Cir. 2004).
Here, the Superior Court adjudicated the petitioner's ineffective assistance of counsel claim by concluding that the underlying claim lacked merit under state law and, therefore, counsel could not be ineffective for failing to raise a claim that lacked merit. This court is not free to re-examine the Superior Court's conclusion that, under state law, the petitioner was not entitled to sever his trial from that of his co-defendants. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (emphasizing that it is not the province of the habeas court to re-examine state court determinations of state law questions).
Thus, the court must assume that this is a correct determination of the state law question. The issue which remains to be decided is whether the state court's determination that counsel cannot be ineffective for failing to raise a meritless claim is contrary to or an unreasonable application of Supreme Court precedent.
The Supreme Court has never held that an attorney renders ineffective assistance when he fails to raise a claim that lacks merit. Thus, the state court's adjudication of the petitioner's claim cannot be contrary to Supreme Court precedent. See Williams v. Taylor, 529 U.S. at 413. In addition, the Third Circuit has held that an attorney is not ineffective when he fails to raise a claim that lacks merit. See Parrish v. Fulcomer, 150 F.3d 326, 328-29 (3d Cir. 1998); Moore v. Deputy Commissioners, SCI Huntingdon, 946 F.2d 236, 245 (3d Cir. 1991). This indicates that the state court's adjudication of the petitioner's claim was a reasonable application of Supreme Court precedent. See Fischetti v. Johnson, 384 F.3d at 149. Therefore, the petitioner cannot be granted habeas relief.
The court must also determine whether to recommend granting a certificate of appealability ("COA") with respect to any of the petitioner's claims. The court has adjudicated most of the petitioner's claims on procedural grounds. A COA can issue with respect to those claims if: "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [if] jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). In Slack v. McDaniel, the Supreme Court went on to explain that:
Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.Id. Further, the Supreme Court indicated that, since the petitioner must make showings with respect to both the procedural issue and the underlying, constitutional issue, a court may resolve the COA question if either showing is lacking. Id. at 484-85. On the other hand, for the one claim the court has reviewed on its merits, a COA can be granted if jurists of reason would find the court's application of 28 U.S.C. § 2254(d)(1) to the claim was debatable. See Miller El v. Cockerell, 123 S.Ct. 1029, 1039 (2003); see id. at 1046 (Scalia, J., concurring).
The court has found that the petitioner's second, fifth, seventh, eighth, ninth and tenth claims are procedurally defaulted and cannot be reviewed on their merits because the petitioner failed to exhaust any of them in Pennsylvania's courts, the PCRA's statute of limitations has expired for the petitioner, and he has failed to establish cause and prejudice or fundamental miscarriage of justice to excuse the defaults. These conclusions were reached based on the record, well-established Supreme Court and Third Circuit precedent, and a plain reading of the PCRA statute. The court is of the view that reasonable jurists would not debate any of the court's conclusions with respect to these claims and so a COA should not be granted for them.
The court has found that the petitioner's first, third and sixth claims are procedurally defaulted because the petitioner violated a state procedural rule when he pursued them in Pennsylvania's courts. These conclusions are based on the record and well-established Supreme Court, Third Circuit and Pennsylvania precedent. The court is of the view that reasonable jurists would not debate the court's procedural rulings with respect to these claims and so a COA should not be granted for them.
The court has found that the state court's adjudication of the petitioner's fourth claim was not contrary to nor an unreasonable application of Supreme Court precedent. These conclusions were based on the lack of any Supreme Court precedent which directly contradicts the state court's adjudication of the petitioner's claim and the existence of Third Circuit precedent which is consistent with the state court's adjudication of the claim. Therefore, the court is of the view that reasonable jurists would not debate the court's application of 28 U.S.C. § 2254(d)(1) to the claim and a COA should not issue for it.
The court's recommendation follows.
RECOMMENDATION
AND NOW, this day of March, 2005, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that the petition for a writ of habeas corpus be DENIED. It is also RECOMMENDED that a certificate of appealability not be granted.ORDER
AND NOW, this day of, 2005, after careful and independent consideration of the petition for a writ of habeas corpus, the answer thereto, the petitioner's traverse and after review of the Report and Recommendation of Diane M. Welsh, United States Magistrate Judge, it is hereby ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is DENIED; and
3. A certificate of appealability is not granted.