Opinion
CIVIL ACTION NO. 02-8432
March 11, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. The Petitioner is currently incarcerated at State Correctional Institution ["SCI"] Houtzdale, Pennsylvania, where he is serving a fifteen to forty year sentence for third degree murder and related offenses. For the reasons which follow, it is recommended that the Petitioner's "Motion To Remand To The Lower Court" be denied.
BACKGROUND
The facts in this discussion have been taken from Mr. Alicea's habeas petition and brief in support, the Commonwealth's answer, and the state court records.
On March 14, 1997, following a jury trial before the Honorable Louis J. Farina of the Court of Common Pleas of Lancaster County, Petitioner and two co-defendants [Eric Lee Griffith and Nathan Cassel] were convicted of third degree murder, and criminal conspiracy to commit third degree murder. See "Appendix To Commonwealth's Motion For Extension Of Time Nunc Pro Tunc" [Docket Entry No. 7] at Exhibit "A" (July 3, 1997 Trial Court Opinion) at p. 1.
Hereinafter "Commonwealth's Answer: Appendix."
The facts underlying Petitioner's conviction were described by the Superior Court, on direct appeal, as follows:
"The evidence, viewed in the light most favorable to the Commonwealth, reveals that Appellants, fellow gang members, were angry about negative comments they believed that Misach Ortiz, the victim's brother, and a friend had made about their gang. As a result, Cassel drove Alicea and Griffith, armed with three knives and a rifle, to a school to confront Mr. Ortiz on February 28, 1996. Upon discovering that Mr. Ortiz was not at the school, Appellants proceeded to his house, where, upon answering the door, Mr. Ortiz saw Griffith leaning against the car and demanding that Mr. Ortiz come out. When Mr. Ortiz refused, Griffith walked onto the front porch and approached the doorway followed by Cassel and Alicea, both of whom had been hiding behind the porch steps. Cassel and Griffith began shouting at Mr. Ortiz about the negative comments they believed he had made concerning their gang. Mr. Ortiz, frightened, closed the door and called 911. Meanwhile, another witness, Cynthia Bair, looked out the third floor window and saw Cassel and Griffith brandishing knives and then watched as Cassel retrieved a rifle from his car. Appellants then re-entered the car and Cassel drove back and forth in front of the house, while Alicea, seated in the front passenger side of the vehicle, held the rifle out the window, which faced the occupied residence. Alicea then fired the weapon. The bullet traveled through the wooden frame of the open third floor window, striking and killing the victim."See Commonwealth's Answer: Appendix at Exhibit "B" (March 13, 1998 Superior Court Opinion) at pp. 2-3.
On May 5, 1997, Judge Farina sentenced Petitioner to twelve to thirty years for third degree murder, and a consecutive three to ten years for conspiracy to commit third degree murder. See Commonwealth's Answer: Appendix at Exhibit "A" (July 3, 1997 Trial Court Opinion) at p. 1.
Petitioner filed a timely notice of appeal. On appeal, Mr. Alicea asserted the following grounds for relief:
"1. Whether the [trial] court's instruction to the jury was prejudicial when the trial judge repeatedly referred to [Alicea] as the `actual killer', and suggested the jury begin their deliberations by deciding his case first? 2. Whether the [trial] court erred in failing to transfer the proceedings to juvenile court?
3. Whether the [trial] court erred by using redacted statements of the co-defendants at trial rather than severing the three cases from each other?
4. Whether the prosecutor engaged in misconduct when he vouched for a witness' credibility and argued facts which were not in evidence?"See Commonwealth's Answer: Appendix at Exhibit "B" (March 13, 1998 Superior Court Opinion) at pp. 4-5.
In a March 13, 1998 Opinion, the Superior Court affirmed the judgments of sentence, rejecting all issues on the merits. Id.
Petitioner and co-defendant Nathan Cassel petitioned for reconsideration of the March 13, 1998 decision. The Superior Court granted reconsideration on the issue of the admissibility of the redacted statement of a co-defendant. See Commonwealth's Answer: Appendix at Exhibit "C" (August 10, 1998 Superior Court Opinion) at p. 1.
Upon reconsideration, the Superior Court again affirmed the judgments of sentence, concluding that the redaction of the co-defendants' statements were consistent with Pennsylvania law, and did not result in a Bruton violation. See Commonwealth's Answer: Appendix at Exhibit "C" (August 10, 1998 Superior Court Opinion) at p. 6.
In Bruton v. United States, 391 U.S. 123 (1968), the United States Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when his non-testifying co-defendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the co-defendant. Richardson v. Marsh, 481 U.S. 200, 201-202 (1987).
Petitioner sought discretionary review in the Pennsylvania Supreme Court. Allocatur was denied on September 21, 1999. See Commonwealth's Answer: Appendix at Exhibit "D" (February 6, 2002 Superior Court Opinion) at p. 2.
On May 17, 2000, Mr. Alicea filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ["PCRA"], 42 Pa.C.S.A. § 9541 et seq. Counsel was appointed. After concluding that there were no issues of arguable merit, PCRA Counsel filed a Turner/Finley brief. The Court denied Mr. Alicea's request for PCRA relief on February 21, 2001. Id.
Mr. Alicea filed a timely appeal to the Pennsylvania Superior Court. On appeal, Petitioner raised the following arguments:
1. Trial counsel was ineffective for failing to challenge the sufficiency of the evidence to support the third degree murder conviction.
2. Trial counsel was ineffective for failing to pursue the possibility that Petitioner was not a member of a gang.
3. Trial counsel was ineffective for failing to argue that Petitioner's statement to police should have been suppressed.
4. Trial counsel was ineffective for failing to make the jury aware that Petitioner was interviewed for two hours before being told that the victim had died.
5. The PCRA Court erred by denying Petitioner's request for an evidentiary hearing.
6. The testimony of the victim's brother at trial contradicted what this witness told police after the shooting.See Commonwealth's Answer: Appendix at Exhibit "D" (February 6, 2002 Superior Court Opinion) at pp. 2-8.
On February 6, 2002, the Superior Court affirmed the denial of PCRA relief, finding that all allegations of error lacked merit. Id.
There is no reference in the state court record to indicate that Mr. Alicea sought discretionary review in the Pennsylvania Supreme Court.
On November 5, 2002, Petitioner signed and dated a habeas petition. It was filed in this Court on November 12, 2002. See Habeas Petition [Docket Entry No. I]. On January 17, 2003, at the Court's request, Mr. Alicea filed an revised habeas petition on a current form. See Docket Entry No. 3. As grounds for habeas relief, Petitioner raises the following issues:
For the purposes of this Report and Recommendation, I will accept the earliest date, November 5, 2002, as the date of filing. See Bums v. Morton, 134 F.3d 109, 113 (3d Cir. 1998).
1. "Denied right under the Confrontation Clause of the Sixth Amendment of the U.S. Constitution. The prosecution introduced statements of co-defendants who were being tried in a joint trial along with the Petitioner. All references made toward the Petitioner in these statements were substituted with words such as `driver,' `the front seat passenger,' `the guy with the gun,' `the third guy,' and `the shooter.' Such substitutions pointed an accusatory finger directly at the Petitioner."
2. "Petitioner was denied his right to a fair trial under the U.S. Cons, when the trial judge repeatedly referred to the Petitioner as the `actual killer' during the Judge's instructions to the jury. The Petitioner was further prejudiced when the Judge instructed the jury to begin their deliberations by deciding Petitioner's case, and by suggesting if they cannot convict him, they cannot convict anybody. On no less than six occasions, the trial judge referred to the Petitioner as the alleged `actual killer,' thereby, by using such words, the Judge gave the jury the impression that he accepts the theory of the prosecution and that the portion of the case regarding Petitioner is simple and that it is the cases of the co-defendants that need their consideration."
3. "The Petitioner was denied his right to a fair trial under the U.S. Const, when the trial judge failed to sever his trial with that of his co-defendants. Petitioner's co-defendants were tried jointly with the Petitioner. At trial antagonistic and or contradictory defenses were presented by the Petitioner's co-defendants, thereby causing him prejudice and denying him a fair trial."
4. "Trial counsel was constitutionally ineffective for failing to object to any references by the prosecution and/or their witnesses, of Petitioner's affiliation with any gang when such references buttressed prosecution['s] theory of motive. The prosecution[']s theory was that the killing was gang related and that the Petitioner was a member of a gang, thereby giving him a motive for the killing. Trial counsel was aware of witnesses who would have testified that Petitioner was not a gang member, yet he failed to present these witnesses to dispute the testimony that Petitioner was a gang member."
5. "Prosecutor committed misconduct when he counseled a Commonwealth witness to testify that a co-defendant asked her if her brother's name was `Misach' when the prosecutor knew before hand that the co-defendant already knew `Misach.' Lisette Gascot was the first witness to testify for the Commonwealth. Petitioner maintains that Eric Griffith (co-defendant) could not have asked Lisette if the name of her brother was `Misach' because Eric already knew Misach. Furthermore, Petitioner maintains Lisette's aunt was going to send her to Puerto Rico. to avoid testifying in trial because the D.A. had told Lisette to maintain the above mentioned lie at trial. Therefore, the prosecutor committed blatant misconduct when he knowingly allowed one of his witnesses to present perjured testimony."
6. "Appellant's Post Conviction Relief counsel provided constitutionally ineffective assistance of counsel when he failed to support any of the Petitioner's claims with legal authority, thereby, denying him his Sixth Amendment right to effective assistance of counsel."
7. "The PCRA Court denied Petitioner's right to due process when it denied relief without first conducting an evidentiary hearing, so that the Petitioner could present testimony and other evidence which would have supported the contentions made in his amended PCRA motion."See Revised Habeas Petition [Docket Entry No. 3] at pp. 9-10.
The Commonwealth responded to Mr. Alicea's habeas claims, arguing, inter alia, that Petitioner's sixth habeas claim has never been raised in the Pennsylvania Courts, thereby creating a "mixed" habeas petition. The Commonwealth argued against dismissal of this habeas petition without prejudice to pursue state remedies, because the sixth habeas issue is not cognizable under the federal habeas framework. See Commonwealth's Answer [Docket Entry No. 7] at pp. 6, 15.
On March 24, 2003, Mr. Alicea filed a "Motion For Remand To The Lower Courts." [Docket Entry No. 10]. In this motion, Petitioner concedes that his sixth habeas issue has not raised on any level in the state court system. He argues that if his habeas petition is dismissed without prejudice, he "would then run into a brick wall in the lower court, for the Commonwealth then would use the time limitation of one year after the conviction (March 14, 1997) for petitioner to had filed his petition, [emphasis in original]" See Motion to Remand [Docket Entry No. 7] at ¶¶ 15-20.
Petitioner requests:
"If this Court can not address this [sixth] issue, than Petitioner again would request that this Honorable Judge remand this case back down to the lower courts with instructions to appoint a Spanish speaking attorney where by Petitioner can then participate with the litigation of said cases. If this Honorable Judge should dismiss his petition without prejudice . Because of the exhaustion requirement, Petitioner would be time barred to bring this claim in the lower courts under another PCRA because of the AEDPA. [citations omitted]. Wherefore . For all the reasons stated above Petitioner request that this Honorable Judge remand his petition back down to the lower courts where Petitioner can exhaust his claim, along with instructions for appointment of counsel, or in the alternative request that this Honorable Judge hear Petitioners argument and issue. [emphasis in original]"Id. at p. 7.
DISCUSSION
It is undisputed that Petitioner's sixth habeas claim is unexhausted, and that Petitioner will, at this point, be barred from filing a successive PCRA petition under the state statute of limitations. See 42 Pa.C.S.A. § 9545(b). While Petitioner appears to be asking this Court to demand that the state court hear his unexhausted claim, the requested relief is not appropriate.
Petitioner's sixth habeas claim, which challenges the effectiveness of PCRA Counsel is not subject to review in the federal habeas forum. See, e.g., Gregory v. Kyler, No. 02-CV-841, 2004
WE 231301 at *3 (E.D. Pa. January 27, 2004)("It is well settled that claims based on the ineffectiveness of PCRA counsel are not cognizable on habeas review. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 E.Ed.2d 539 (1987)).
Because I find that Petitioner has no remaining available state remedy to exhaust his sixth habeas claim, and I find that, independent of the exhaustion issue, this claim cannot be reviewed by this Court, I recommend that Mr. Alicea's motion for remand be denied, and that his habeas claims be addressed in a supplemental Report and Recommendation.
RECOMMENDATION
For the reasons stated above, it is recommended that Petitioner's Motion to Remand be denied and that his habeas petition be addressed in a supplemental Report and Recommendation.