Opinion
CIVIL ACTION No. 03-CV-2996
December 23, 2003
REPORT AND RECOMMENDATION
Presently before this court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, David Turner, is a state prisoner currently incarcerated at the State Correctional Institution in Pittsburgh, Pennsylvania. For the reasons set forth below, this court recommends that the petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On April 8, 1988, following a jury trial in the Court of Common Pleas of Philadelphia County, Turner was found guilty of murder in the second degree and possessing an instrument of crime. Post-verdict motions were denied, and Turner was sentenced to life imprisonment on November 29, 1988. The Superior Court of Pennsylvania affirmed the judgment of sentence on December 14, 1989. Commonwealth v. Turner, 568 A.2d 622 (Pa.Super. 1989). The Supreme Court of Pennsylvania denied allocatur on September 21, 1990. Commonwealth v. Turner, 593 A.2d 418 (Pa. 1990).
On July 12, 1996, Turner filed a pro se application for collateral relief under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541, et seq. Counsel was appointed and filed a no merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). The PCRA court dismissed the petition. Turner appealed and the Superior Court found that theFinley letter was inadequate and remanded the case to the PCRA court for the filing of an amended PCRA petition or an amendedFinley letter. Commonwealth v. Turner 742 A.2d 213 (Pa.Super. 1999).
On March 14, 2001, Turner filed an amended petition. The PCRA court held an evidentiary hearing on July 25, 2001. Following the hearing, the Commonwealth filed a motion to dismiss the PCRA petition. On September 20, 2001, the PCRA court granted the motion to dismiss. The Superior Court affirmed the order of the PCRA court on September 16, 2002.Commonwealth v. Turner, 813 A.2d 910 (Pa.Super. 2002). The Supreme Court of Pennsylvania denied allocatur on January 28, 2003. Commonwealth v. Turner, 816 A.2d 1102 (Pa. 2003).
On May 8, 2003, Turner filed the instant petition for habeas relief in which he claims that: 1) the trial court abused its discretion and committed reversible error when it gave incorrect, erroneous, and misleading jury instructions; 2) the prosecutor committed reversible error by referring to Turner's exercising his right to remain silent and by making other inflammatory remarks; and 3) trial counsel was ineffective. The Commonwealth argues that Turner is not entitled to federal habeas relief because his claims are either procedurally defaulted or without merit.
DISCUSSION
It is well-settled that absent exceptional circumstances a federal court will not entertain a petition for a writ of habeas corpus until the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254 (b); O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254 (c). The policy of this total exhaustion doctrine is rooted in the tradition of comity: the state must be given the "initial opportunity to pass upon and correct" alleged violations of the petitioner's constitutional rights. Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). Exhaustion does not require that the highest state court rule on the merits of the petitioner's claims, but merely that the court be given the opportunity to review them. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989). Thus, each constitutional claim presented in a habeas petition must be exhausted. 28 U.S.C. § 2254 (c);Tillet v. Freeman, 868 F.2d 106 (3d Cir. 1989).
If a petitioner has not "fairly presented his claims to the state court and no state avenue of relief remains available, the unexhausted claims may be deemed exhausted. Gray v. Netherland, 518 U.S. 152 (1996). This requirement does not apply when "state procedural rules bar a petitioner from seeking further relief in state courts." Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see also Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996). In such cases, exhaustion is not possible because the state court would refuse on procedural grounds to hear the merits of the claim, and thus any attempts to assert the claims would be futile. Id. However, this does not automatically lead to a review of the merits by a federal court because the claims are then considered procedurally defaulted. Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 749 (1991) (federal review of such claims is precluded if the "prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule"). The petitioner must establish "cause and prejudice" or a fundamental miscarriage of justice for federal review of a procedurally defaulted claim. Id.;Doctor, 96 F.3d at 683.
In this case, the Commonwealth asserts that Turner has failed to exhaust all but one of his claims: that trial counsel was ineffective for failing to object to the introduction into evidence of a sawed-off shotgun seized from his apartment. A review of the issues raised in the state courts reveals that the Commonwealth is correct in this assertion. On direct appeal, Turner raised the following claims: 1) insufficient evidence; 2) trial court error in requiring further deliberation after the jury had indicated that they were deadlocked; 3) trial court error for denying a mistrial or motion to strike the testimony of a prosecutor; 4) trial court error for overruling defendant's objections to the prosecutor's closing argument; and 5) a violation of Pa.R.Crim. P. 1100. On appeal from the denial of PCRA relief, Turner claimed that trial counsel was ineffective for failing to object to the testimony concerning a sawed-off shotgun. This PCRA claim is the only claim asserted in the instant petition that was raised in state court. Thus, this court must conclude that the remaining claims raised in the instant petition are unexhausted.
Further, this court must conclude that there remains no avenue for state court review of these claims. Pursuant to Pennsylvania law, petitions for collateral review must be filed within one (1) year of the date judgment becomes final unless the petitioner meets one of three limited exceptions that do not apply in the instant case. 42 Pa. C.S.A. § 9545(b). See also Commonwealth v. Peterkin, 722 A.2d 638, 642-43 (Pa. 1998) (finding no jurisdiction to hear an untimely PCRA petition); Commonwealth v. Cross, 726 A.2d 333, 335-36 (Pa. 1999) (same); Commonwealth v. Banks, 726 A.2d 374, 376 (Pa. 1999) (same). Because the Pennsylvania Supreme Court has consistently applied the one-year statute of limitations as a procedural bar to all untimely PCRA petitions, this court must conclude that further review of this claim in the state court is clearly foreclosed.
These exceptions are as follows: 1) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. 42 Pa. C.S.A. § 9545(b).
Where the highest state court has not, or will not, consider the merits of a petitioner's habeas claims because of a state procedural default, federal review is prohibited absent a showing of cause and prejudice or a miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Bousley v. United States, 523 U.S. 614, 622 (1999); Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-63 (1989). To show cause, Turner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule."Coleman, 501 U.S. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1986); Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). Once cause is established, Turner must also show that prejudice resulted from trial errors that "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Murray, 477 U.S. at 494. To establish the fundamental miscarriage of justice exception to the procedural default rule, Turner must demonstrate his "actual innocence."Schlup v. Delo, 513 U.S. 298, 324 (1995); Calderon v. Thompson, 523 U.S. 538, 559 (1998) (actual innocence sufficient to excuse procedural default requires petitioner to present reliable evidence not offered at trial to show that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence").
Here, Turner provides no explanation for his failure to assert these claims in the state courts, nor has he offered evidence sufficient to establish a claim of actual innocence. Thus, this Court is constrained to find that these claims are procedurally defaulted and not subject to federal habeas review, and shall consider the merits of the only exhausted claim: that trial counsel was ineffective for failing to challenge the testimony concerning a sawed-off shotgun.
In order to be eligible for federal habeas relief, Turner must establish that the state court's adjudication of the merits of his claims: "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)(1), (d)(2); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1504 (2000). In addition, any factual determinations made by the state court shall be presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e).
The United States Supreme Court in Williams set forth a two-part test for analyzing claims under § 2254(d) making it clear that the "contrary to" and "unreasonable application" clauses of § 2254(d) have independent meaning. First, under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently from the Supreme Court on a set of materially indistinguishable facts.Id. at 1519. Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Id. at 1520. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was unreasonable."Id. "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 1522. See also Early v. Packer, 537 U.S. 3, 10-11 (2002) (federal courts may not substitute their own judgment for that of the state court).
When reviewing claims of ineffective assistance of counsel, this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different absent the alleged ineffectiveness of counsel. Strickland v. Washington, 446 U.S. 668, 695 (1984). To prevail, petitioner must satisfy a two-pronged test by establishing that: (1) counsel's performance was deficient; and (2) counsel's deficient performance prejudiced the defense. Id. at 687.
A strong presumption exists that counsel's conduct falls within the wide range of reasonably professional assistance. Id. at 689. To demonstrate that counsel's performance was deficient, the petitioner must show that counsel's representation fell below an objective standard of reasonableness based on the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 688, 690. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694. A reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. If it is easier to dispose of an ineffectiveness claim for lack of the requisite prejudice, that course should be followed. Id. at 697.
The determination of whether a state court erred in denying a claim of ineffective assistance of counsel requires this court to review whether the state court's application of Strickland was objectively unreasonable. See Woodford v. Viscotti, 537 U.S. 19, 24-25 (2002) (". . . it is not enough to convince a federal habeas court that, in its independent judgment, the state court decision appliedStrickland incorrectly."); Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). In addition, "counsel cannot be deemed ineffective for failing to raise a meritless claim." Id. at 203 (citingCommonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154 (1999)).
In considering this claim, the Superior Court held as follows:
When considering whether counsel was ineffective, the court must determine whether: (1) there is arguable merit to appellant's underlying claim; (2) the course chosen by counsel had a reasonable basis designed to effectuate his client's best interest; and (3) the defendant has demonstrated prejudice. Commonwealth v. Jordan, 772 A.2d 1011 (Pa.Super. 2001). When alleging ineffectiveness in conjunction with a PCRA petition, appellant must establish counsel's ineffectiveness, "so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa. C.S.A. § 9543(a)(2)(ii). The admissibility of evidence is addressed to the sound discretion of the court and we may reverse only upon a showing the court abused that discretion. Commonwealth v. D.J.A., 800 A.2d 965 (Pa.Super. 2002).
The record indicates that when Morales began testifying concerning a previous altercation between the appellant and the victim earlier on the same day as the shooting, and Morales mentioned that the appellant possessed a shotgun at that time, defense counsel objected to the line of questioning. The court, however, overruled the objection and concluded the discussion was in response to testimony brought out on cross and was appropriate to rehabilitate the witness's credibility challenged on cross-examination (N.T., 4/4/88, at 119-120). Morales also then clarified her testimony concerning the weapons, explaining that at the time of the shooting, she saw appellant with only a handgun, while earlier that same day she had observed him with a shotgun. Id. at 122-124.
Morales's testimony concerning the shotgun served to provide a sequence of events leading up to the drug-related shooting death of the victim by the appellant, and also to bolster her identification of appellant as the shooter. Likewise the testimony of the investigating detective who seized the shotgun at appellant's residence was offered to rehabilitate the testimony of Morales, an admitted prostitute and drug addict. The trial court did not err by allowing into evidence the testimony regarding the shotgun, and therefore the PCRA court did not err by finding appellant's ineffectiveness claim lacked merit.Commonwealth v. Turner, No. 2697 EDA 2001 (Pa.Super. Sep. 16, 2002) mem. op. at 4-5.
In the absence of clear and convincing evidence to the contrary, the state court's factual findings are accepted as correct. 28 U.S.C. § 2254(e)(1). Here, the Superior Court reasoned that this testimony provided a sequence of events leading up to the drug-related shooting death of the victim and served to bolster Morales's identification of Turner as the shooter. Applying Strickland to these facts, this court cannot conclude that the holding of the Superior Court was contrary to, or an unreasonable application of, clearly established federal law.Woodford, 537 U.S. at 24-25; Early, 537 U.S. at 11 (§ 2254(d) requires "that decisions which are not `contrary to' clearly established Supreme Court law can be subjected to habeas relief only if they are not merely erroneous, but `an unreasonable application' of clearly established federal law, or based on `an unreasonable determination of the facts.'") (emphasis in original).
Having concluded that the claims raised do not merit federal habeas relief, or are procedurally defaulted and not subject to federal review, this court makes the following:
RECOMMENDATION
AND NOW, this day of December, 2003, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. It is further RECOMMENDED that there is no probable cause to issue a certificate of appealability.