Opinion
3:19-CV-115-SLH-KAP
02-09-2021
LUTHER WARE, Petitioner, v. BARRY SMITH, Superintendent, S.C.I. Houtzdale, Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
The petition for a writ of habeas corpus should be denied, but the Court should issue a certificate of appealability to determine whether the quashing of an appeal for violation of Pa. App. R. P. 341 constitutes dismissal pursuant to an adequate and independent state rule that would bar habeas review due to procedural default.
Report
Petitioner is in prison as a result of sentences imposed for controlled substances offenses charged in two separate informations filed at Commonwealth v. Ware, CP-17- CR-734-2014 (C.P. Clearfield) and Commonwealth v. Ware, CP-17- CR-239-2015 (C.P. Clearfield). The charges at “734” stemmed from the execution on October 9, 2014, of an anticipatory search warrant on an apartment rented by petitioner in Clearfield County. Petitioner was arrested on the “734” charges on October 9, 2014, and released on unsecured bail approximately a week later. The charges in “239, ” alleging drug offenses by petitioner in 2013 and 2014, were filed in 2015 as a result of a presentment by a state investigating grand jury. Petitioner was arrested on the “239” charges in March 2015, at a pretrial hearing on the “734” charges. He was thereafter detained pending trial.
Petitioner had applied for appointed counsel in “734” in 2014, but was denied counsel on the grounds that he had not shown that he was indigent. Petitioner filed pretrial motions pro se, including additional motions for appointment of counsel that were denied because petitioner did not prove his eligibility. In 2015, after petitioner was arrested on the “239” charges and detained pending trial, President Judge Fredric Ammerman found petitioner qualified for appointed counsel and appointed Jeffrey Dubois, Esquire, as trial counsel. The consolidated criminal charges proceeded to a jury trial in June 2015: on June 12, 2015 a jury found petitioner guilty of most of the charges. On August H, 2015, Judge Ammerman sentenced petitioner to an aggregate term of 11-30 years.
On August 20, 2015, petitioner filed a post sentence motion that Judge Ammerman characterized as a petition under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa.C.S.§ 9541 et seq. The motion was in two parts, one submitted by Attorney Dubois and the other a pro se handwritten motion. Judge Ammerman denied the motion on November 19, 2015.
Petitioner took two counseled direct appeals from the dismissal of the post sentence motion on December 17, 2015 that were docketed at 75 WDA 2016 and 77 WDA 2016, but then sought to discharge counsel and proceed pro se, which relief Judge Ammerman granted on February 19, 2016. Petitioner discontinued the direct appeals on February 29, 2016. Petitioner had already filed pro se PCRA petitions on February 16, 2016, claiming, inter alia, that Attorney Dubois had been ineffective at trial.
In March 2016, Judge Ammerman appointed Lance Marshal, Esquire, to represent petitioner in his PCRA petitions alleging Attorney Dubois' ineffectiveness at trial. Marshal filed an amended PCRA petition in February 2017. Petitioner had filed what he styled as state court habeas petitions in May 2016 that Judge Ammerman dismissed but which in April 2017 the Pennsylvania Superior Court directed Judge Ammerman to treat as supplements to the PCRA petitions and forward to Marshal. After a disagreement between attorney and client over whether to raise certain issues in the PCRA petition, petitioner moved to proceed pro se. After a colloquy on or about September 29, 2017, Judge Ammerman granted petitioner's motion. Petitioner had in May 2017 filed an amended PCRA petition containing the claims he had sought to raise. Petitioner also filed a motion for discovery, which motion was the subject of a hearing on March 5, 2018, at which petitioner proceeded pro se with Brian D. Jones, Esquire, as standby counsel. The discovery hearing wrapped up on April 3, 2018, and the PCRA hearing itself took place on June 19, 2018. At that time Judge Ammerman determined that petitioner was either trying to litigate claims not properly raised in the PCRA petition, or had failed to subpoena necessary witnesses, and he dismissed the PCRA petition on June 21, 2018. Petitioner filed a notice of appeal on July 24, 2018. According to the state court docket, the notice of appeal was dated July 1, 2018, but it was not docketed until the ancillary motion to proceed in forma pauperis was granted on July 23, 2018. This was followed by a statement of issues presented that petitioner submitted on July 26, 2018 in accordance with Pa.R.App.P. 1925. Judge Ammerman wrote an opinion in accordance with Rule 1925(a) dated August 19, 2018 (but according to the Superior Court issued on September 20, 2018), explaining his rulings on the issues raised by petitioner, and reciting the procedural history of the case to that point.
The Pennsylvania Superior Court quashed the appeal without reaching the merits in an opinion at No. 1087 WDA 2018 on May 21, 2019, holding that the appeal must be quashed because petitioner had violated Pa.R. App.P. 341 by filing a single notice of appeal rather than two separate notices of appeal, one for each docket number in the Court of Common Pleas. The Pennsylvania Supreme Court had held in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), that after June 1, 2018 (the date of its decision), the sanction for violation of Rule 341 would be the quashing of the appeal. The Pennsylvania Supreme Court made application of its decision in Walker prospective in recognition of its departure from previous practice. Id., 185 A.3d at 974, 977. Petitioner did not seek further review in the state courts. He filed his federal petition on July 24, 2019.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996, allows a federal court to issue a writ of habeas corpus to a person challenging a state court criminal conviction and sentence if the petitioner establishes that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.§ 2254(a); see Howell v. Superintendent Rockview SCI 939 F.3d 260, 264 (3d Cir.2019).
AEDPA codifies several longstanding limitations on the power to issue a writ of habeas corpus. Because state courts have the initial role in considering federal constitutional challenges to state convictions, see Castille v. Peoples, 489 U.S. 346, 349 (1989), the petitioner must first fairly present to the state courts the same legal arguments addressing the same factual context that the petitioner presents to the federal court. See Baldwin v. Reese, 541 U.S. 27, 30-33 (2004); Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam). Therefore, 28 U.S.C.§ 2254(b)(1) and (2) permit this court to deny a writ of habeas corpus sought on a claim that a petitioner's custody is unlawful but do not permit this court to grant a writ of habeas corpus unless the petitioner has exhausted the remedies available for such claims in state court or has shown that there are no remedies effective to protect the petitioner's rights. In Pennsylvania, exhaustion of a federal habeas claim requires that the claim be fairly presented at least to the Pennsylvania Superior Court. Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004), cert, denied, 544 U.S. 1063 (2005).
Claims based on federal law that the state courts do not deny on the merits due to a failure to present them in the manner required by state procedure ordinarily are considered procedurally defaulted. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). They cannot be reviewed in a federal habeas proceeding unless the petitioner shows either a miscarriage of justice or cause for his default and prejudice. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). Showing “cause” for a procedural default typically requires proof that the default occurred because counsel was ineffective at a stage of the proceeding at which the petitioner was entitled to the effective assistance of counsel, or the factual basis for a claim was not available, or state officials made compliance with the procedural rule impracticable. See Murray v, Carrier, 477 U.S. 478, 488 (1986).
Since petitioner was proceeding pro se when he filed the notice of appeal from the denial of his PCRA. petition, he cannot show cause external to himself for the default that caused the appeal to be quashed. If the quashing of the appeal was in accordance with an adequate and independent state rule, then petitioner has defaulted habeas review of his claims.
To be an adequate and independent state procedural bar to the entertainment of federal claims, a state's rule must have been “firmly established and regularly followed” at the time it was applied. Ford v. Georgia, 498 U.S. 411, 424 (1991). The Supreme Court has indicated that factors to consider whether a state's rule is adequate include whether compliance with the rule would have made a difference to the state court's ruling, whether published decisions alerted similarly situated litigants to the rule and the consequences for violating it, and whether there was substantial compliance with the rule. See Lee v. Kemna, 534 U.S. 362, 381-82 (2OO2)(Missouri rules requiring continuance motions to be written and accompanied by an affidavit were not adequate to bar habeas review where there was substantial compliance with the rule, no published case directed perfect compliance in the same context, and even perfect compliance with the rule would have made no difference under the circumstances). The fundamental question is whether the rule was regularly and predictably applied at the time. See Nolan v. Wynder, 363 Fed.Appx. 868, 871 (3d Cir.2Oio)(Pa.R.App.P 2116(a) prescribing page limitations was not an adequate bar to habeas review where at the time of violation Pennsylvania courts “routinely addressed the substantive merits of claims despite a party's failure to comply with the mandatory page limitation.”)
Rule 341 has been the subject of approximately 700 published Pennsylvania decisions (but as of today apparently only two federal decisions, neither relevant) since Walker. I have not read every case, but the regularly followed rule appears to be that Walker is applied and the appeal is quashed except in cases in which the court misleads the appellant by advising that only one notice of appeal needs to be filed. See Commonwealth v. Turner, No. 3230 EDA 2019, 2021 WL 248694, at *2 (Pa. Super. Ct. Jan. 26, 2021), discussing Commonwealth v. Larkin, 235 A.3d 350 (Pa. Super. 2020). Petitioner here does not claim that happened, petitioner does not dispute respondent's account of the procedural history of this matter, and my review of the record does not indicate any misleading advice by Judge Ammerman.
I conclude that the quashing of petitioner's appeal for violation of Rule 341 was pursuant to an adequate and independent state rule. In Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), the Supreme Court concluded that “[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Because of the few federal cases discussing Rule 341 and the importance of determining whether Rule 341 violations preclude habeas review, I think that because the Walker rule was only one month old when petitioner violated it there could be debate among jurists of reason over my recommended procedural ruling. I therefore recommend the issuance of a certificate of appealability.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. The parties are advised that in the absence of timely and specific objections any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017)(describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).