Opinion
Civil Action No. 01-1494.
April 27, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a counseled petition for writ of habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the State Correctional Institution, Graterford, Pennsylvania, where he is serving an aggregate term of imprisonment of thirty five (35) to seventy (70) years for ten (10) counts of robbery, five (5) counts of burglary, five (5) counts of violation of the Uniform Firearms Act, seven (7) counts of criminal conspiracy, four (4) counts of unlawful restraint, one (1) count of attempted theft, and one (1) count of possession of an instrument of crime.
I filed a Report and Recommendation in this action dated December 19, 2001, in which I recommended that the Petition for Writ of Habeas Corpus be denied and dismissed as time-barred. Mr. Allen filed objections to the report and recommendation, and an evidentiary hearing was held. The Honorable Clarence C. Newcomer found that the applicable statute of limitations for filing a habeas petition had been equitably tolled, and the petition was to be treated as timely. The case was remanded to me for further proceedings. I ordered Petitioner's counsel to file a supplemental, all-inclusive habeas petition, raising all constitutional issues which Mr. Allen wished to assert, to which the Commonwealth was to respond. On October 17, 2003, I filed a Report and Recommendation in which I recommended that Mr. Allen's petition be denied and dismissed without an evidentiary hearing in that his claims were procedurally defaulted. Objections again were filed, and, by Order dated January 29, 2004, the matter was remanded to me for a consideration of the merits of the instant petition.
For the reasons which follow, it is recommended that the within habeas petition be denied and dismissed without an evidentiary hearing. It is further recommended that a finding be made that there is no probable cause to issue a certificate of appealability.
I. BACKGROUND
In preparing this Report and Recommendation, I have reviewed the following documents: Mr. Allen's habeas petition, inclusive of all exhibits thereto, and his amended habeas petition, with Authorities in Support of Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254; the Commonwealth's responses to both petitions, with exhibits; as well as the government's final Response to Petition for Writ of Habeas Corpus; the state court record; and this Court's record.`
The history of this case was set forth by me in my Report and Recommendation dated December 19, 2001, as follows:
On July 12, 1995, Petitioner entered a plea of guilty but mentally ill before the Honorable C. Darnell Jones, II of the Philadelphia Court of Common Pleas to the following counts: ten counts of robbery, five counts of burglary, five counts of violations of the Uniform Firearms Act, seven counts of criminal conspiracy, four counts of unlawful restraint, one count of attempted theft, and one count of possession of an instrument of crime.
Sentencing was deferred for presentence investigation and another psychiatric evaluation. The psychiatricexam was specifically requested by Petitioner's counsel.
On September 18, 1995, Judge Jones sentenced Petitioner to an aggregate term of imprisonment of thirty-five to seventy years. As a condition of sentencing, Judge Jones ordered:
[Petitioner] to be committed first to said Bureau of Corrections, then transferred to a mental health facility until ready to return to said Bureau of Corrections to serve his sentence in the general population.
Mr. Allen did not move to withdraw his guilty plea, nor did he file a direct appeal.
On December 4, 1995, Petitioner filed a pro se "Petition for Reconsideration of Sentence". In this pleading, Mr. Allen sought modification of his sentence for a variety of reasons. Petitioner argued, inter alia, that he would probably die in prison unless the sentence was modified, asserted that he was sentenced "for at least four counts that I personally never committed", and requested reconsideration based upon the fact that he was mentally ill and had been under the influence of psychiatric medications at the time of plea, resulting in a plea that was "unclear".
The Petition for Reconsideration was denied, without opinion, on November 22, 1995.
On March 1, 1996, Petitioner filed a pro se petition for relief under the Post Conviction Relief Act [PCRA], 42 Pa.C.S.A. 9541, et seq. In his petition, Mr. Allen argued:
That my rights under the Constitution and sentence of a person who is incompetent to stand trial violates the due process guarantee of the Fourteenth Amendment of the United States Constitution. I'm a psyc. Pateet (patent) and due to my mental illness, I was heavily sedated off my medication whith (with) the psyc. Reports to confirm that I wasn't competent enough to stand trial on a plea of guilty but mental illed.
The lawyer that represented me at my parole hearing gave me some advise that confirm that I was not competent and that I should file a post-conviction relief, because my rights has been violated in accordance to the Fourteen.
My psyc. Evaluation reports, and my medical record to show that my medication can sedate me enough to lose sense of reality, amongst other things. [ sic].
PCRA Counsel was appointed. She filed a Finley, "no merit" letter on December 15, 1996. In addition to sending Petitioner a copy of her Finley letter, PCRA Counsel, by letter dated December 17, 1996, informed Mr. Allen of his right to respond to the Finley letter, and his right to appeal any adverse decision by the PCRA Court within thirty days of the decision.
Mr. Allen's PCRA petition was dismissed as frivolous by Order dated January 22, 1997.
On February 12, 1997, Petitioner filed a timely notice of appeal to the Superior Court. By letter dated June 11, 1997, Petitioner was informed that he was required to file a brief on or before July 21, 1997.
On September 9, 1997, the Superior Court dismissed the PCRA appeal "for failure to file a brief".
It is undisputed that Mr. Allen at some point in 2000, sought reinstatement of his appellate rights nunc pro tunc. This request was denied by the Superior Court in a March 9, 2000 Order.
It is also undisputed that Petitioner filed a second application for reinstatement nunc pro tunc, which was denied by the Superior Court on July 17, 2000 (citations and footnotes omitted). Allen v. Vaughn, CA No. 01-1494, Report and Recommendation at 1-4 (EDPa. December 19, 2001).
The instant habeas petition was filed with the Court on March 28, 2001. I recommended that it be dismissed as time-barred; however, after an evidentiary hearing, Judge Newcomer found that the applicable statute of limitations had been tolled. Upon the petition's return to me, I ordered Mr. Allen to file a supplemental, all-inclusive petition, raising all constitutional issues which he wished to assert. He did so, and the Commonwealth responded. As the claims raised were procedurally defaulted, I again recommended dismissal without an evidentiary hearing. However, Judge Newcomer remanded the matter to me and ordered that the merits of Mr. Allen's claims be addressed.
In his amended habeas petition Mr. Allen alleges that: "Petitioner's plea was unlawfully induced. Mr. Mandell provided ineffective assistance when he failed to obtain his own additional psychiatric evaluations and advised Petitioner to enter a guilty but mentally ill [plea] while he was incompetent". Authorities in Support of Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 at [2]. The Commonwealth denies that Petitioner is entitled to federal habeas relief.
DISCUSSION
A. Standard of Review
Because Mr. Allen's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), the amended habeas standards apply to his claims.
Pub.L. No. 104-132, 110 Stat. 1214, 1219 (1996), effective date April 24, 1996.
AEDPA precludes habeas relief on "any claim that was adjudicated on the merits in State court proceedings unless the 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 proceedings. 28 U.S.C. § 2254(d).
In interpreting the above language, the Third Circuit has discussed the appropriate degree of deference which the AEDPA requires a federal habeas court to accord a state court's construction of federal constitutional issues and interpretation of Supreme Court precedent. See Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir.), cert. denied, 120 S.Ct. 73 (1999). The Third Circuit has held that under 28 U.S.C. § 2254(d)(1), a two-step inquiry is warranted. The majority agreed that:
(1) The proper inquiry for the habeas court is whether the state court decision was "contrary to" Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only when the petitioner shows that "Supreme Court precedent requires an outcome contrary to that reached by the relevant state court. Id. at 891.
(2) In the absence of such a showing, the habeas court must then ask whether the state court decision represents an "unreasonable application of" Supreme Court precedent. This inquiry is an objective one, namely, "whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. Id.
All factual issues determined by a state court are presumed correct, unless the habeas petitioner can rebut this presumption by "clear and convincing evidence". 28 U.S.C. § 2254(e)(1).
B. Guilty Plea
Mr. Allen contends that his entry of a plea of guilty but mentally ill was not knowingly and voluntarily given.
The test is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant". Hill v. Lockhart, 474 U.S. 52, 56 (1985), quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970). Whether a plea is voluntary is a question of law and not a question of fact subject to the presumption of correctness under 28 U.S.C. § 2254(e)(1). A federal habeas court's review of the issue of voluntariness of a plea is, therefore, plenary. See Parry v. Rosemeyer, 64 F.3d 110, 113 (3d Cir. 1995). However, the determination of historical facts surrounding the plea bargain is subject to the deferential presumption of correctness standard. See Zilich v. Reid, 36 F.3d 317, 320 (3d Cir. 1994).
In the instant case, Petitioner states that he was under heavy psychotropic medication at the time of his guilty plea and that he did not understand the proceedings. He asserts that, upon being asked if he understood the proceedings, he answered in the affirmative because his attorney advised him to do so. The mere fact that Mr. Allen was under medication at the time of his plea does not, in and of itself, invalidate the plea. "To succeed on his habeas petition, the petitioner must prove that his mental faculties were so impaired by the medications he was taking that he was incapable of full understanding and appreciation of the charges against him, of comprehending his constitutional rights and of realizing the consequences of his plea." Johnson v. Maynard, 1994 U.S. Dist. LEXIS 453 *3-4 (Dist.CT, January 12, 1994). See also USA v. Dalman, 994 F.2d 537 (8th Cir. 1993).
Within the two weeks prior to his guilty plea, which occurred on July 12, 1995, Mr. Allen was examined twice by a psychiatrist. At each examination, Petitioner was made aware of the nature of the evaluation, and he agreed to cooperate. Pietro Miazzo, M.D. performed Mr. Allen's first examination on June 28, 1995, at the request of the Honorable C. Darnell Jones. The purpose of the examination was to assess whether Mr. Allen was competent to stand trial. Petitioner reported receiving medication for high blood pressure, anti-psychotic medication, and an anti-depressant. Dr. Miazzo reported:
This [petitioner] has a somewhat concrete, but sufficient understanding of the roles of the actors in a trial situation. He was guarded throughout the evaluation and needed some prodding and encouragement to cooperate. This guardedness was borne out of his mental condition, but was easily redirected. The [petitioner] is capable of undergoing trial procedures at this time.
. . . . .
This is a somewhat guarded and disheveled Black male. He reports auditory hallucinations telling him not to trust anyone and denies any visual hallucinations. There is no suicidal ideation and some paranoid delusional thinking is noted. This delusional thinking does not involve the judge or any of the actors of the trial.
. . . . .
This [petitioner] is capable of undergoing trial procedures at this time. Some worsening of his paranoia is noted. Nevertheless, he is still competent to cooperate in a trial. He should continue receiving his medication and the possibility of the [petitioner] relapsing under the stress of the trial should be considered. Medication adjustments while in the trial and possible forthwith evaluations could be useful in assessing and preserving the [petitioner's] competency. Mental Health Evaluation, June 28, 1995, at 2.
Judge Jones requested a second evaluation of Mr. Allen to ascertain whether he was mentally ill at the time of the commission of the acts in question and whether he was capable of understanding and participating in a plea of guilty but mentally ill. The examination took place on July 7, 1995, and Dr. Miazzo found that Petitioner was mentally ill at the time of the acts in question. He further opined:
As far as the [Petitioner's] capacity to plead Guilty but Mentally Ill, this [Petitioner] has a very concrete understanding that by pleading Guilty he will agree indeed that he committed the acts he is accused of. He had some very concrete understanding that by pleading guilty he would not be able to have a trial and would give up his option to appeal the outcome. He also has some understanding that as a result of his pleading guilty but mentally ill further hospitalization in a forensic facility will be necessary. In conclusion, this [Petitioner] is marginally capable of pleading guilty but mentally ill. He has some concrete understandings of the consequences of such a plea but his understanding of the more abstract issues of appealing and his right of receiving a trial is rather poor. Medical Evaluation, July 7, 1995, at 2.
Both evaluations noted that Mr. Allen displayed a "concrete understanding" of what a guilty plea involves. Also noteworthy is Dr. Miazzo's statement that Petitioner should continue receiving his medication. Rather than impairing Mr. Allen's faculties, his medications appeared to better enable him to function.
In addition to the examinations, Judge Jones conducted a complete plea colloquy during which Petitioner indicated that he understood the proceedings and the fact that he was giving up his right to a trial. He was pleading guilty voluntarily, and he was satisfied with his attorney. See Response at 9, citing N.T. 7/12/95, 10-12. Mr. Allen in no way states that this colloquy was incomplete or improper.
As Sondra R. Rodrigues, Esquire stated in her Finley letter to the Honorable Genece E. Brinkley upon her appointment to represent Petitioner in PCRA proceedings,
Judge Jones gave both counsel the opportunity to provide the Court with expert testimony or evaluations provided by experts such as psychiatrists in support of their respective positions. (N.T. 7/12/95, p. 32). Counsel for the defense requested that the Court order a psychiatric examination, and this was done; however, the Commonwealth declined to present evidence on the issue. ( Id.) The psychiatric evaluation offered by the defense stated that the "[petitioner] was indeed mentally ill at the time of the acts in question." ( Id., at 33). Based upon the information offered, Judge Jones accepted the petitioner's plea and adjuged ( sic) him guilty but mentally ill. ( Id.)
Since the mental health evaluations directly preceding petitioner's plea indicated that he had a concrete understanding of what he was doing and all proper procedures were followed by the court in accepting the plea, the petitioner cannot substantiate his claim that there was a constitutional violation which would have undermined the truth-determining process.
. . . . .
The petitioner stated on record that no threats or promises had been made and that he was satisfied with his lawyer's representation at that point in time. (N.T. 7/12/95, p. 12). A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. Commonwealth v. Cappelli, 340 Pa.Super. 9, 20-22, 489 A.2d 813, 819 (1985); Commonwealth v. Jones, 408 Pa.Super. 337, 596 A.2d 885 (1991). The petitioner cannot now challenge his plea by claiming that he lied previously under oath. ( Id.). Moreover, the mere fact that a defendant was under medication at the time of the plea does not, in and of itself, invalidate the plea. Commonwealth v. Jackson, 390 Pa.Super. 639, 569 A.2d 964 (1990), citing Commonwealth v. Hazen, 315 Pa.Super. 639, 569 A.2d 964 (1990).
In Hazen, supra, the Superior Court found that a sedated defendant had competently entered his plea where the lower court stated that he showed no signs of being influenced by the medication at the plea hearing, and where the colloquy transcript showed he cogently answered each question addressed to him. ( Id., at 563, 462 A.2d at 735). Present counsel's inspection of the colloquy transcript in the instant case reveals that the trial court was completely informed regarding the nature and extent of the petitioner's condition. The trial court explicitly discussed the prescription drugs taken by the petitioner prior to entering the plea. (N.T. 7/12/95, p. 9). At no time during the colloquy did the petitioner give any indication that he failed to understand the court's explanation of the rights he was waiving by entering a guilty plea, nor does the record indicate that the petitioner was unable to follow the proceedings. Rather, the petitioner consistently responded in an appropriate manner to all questions posed by the trial court. ( Id., 8-17, 19-34). Correspondence to the Honorable Genece E. Brinkley from Sondra R. Rodrigues, Esquire dated December 15, 1996.
Further, Petitioner's assertion that his medications caused him to be "sleeping all day" and unable to eat or concentrate on anything (N.T. 6/178/02, 13,21) lacks credibility when compared with Progress Notes from S.C.I. Graterford concerning his work at its weaving shop. See Motion for Reconsideration of Order filed June 20, 2002, Exhibit A. The Progress Notes also emphasize how well Mr. Allen was doing with his medication regimen and how active he was in pursuing his legal proceedings. Id.
Based upon the above, I conclude that Mr. Allen's plea of guilty but mentally ill was, in fact, voluntary and intelligent. See Parry, 64 F.3d at 113-114 (3d Cir. 1995) ("To comport with the Fifth Amendment, a defendant's plea of guilty must be voluntary and intelligent. A plea of guilty will not be unknowing and involuntary in the absence of proof that the defendant was not advised of, or did not understand, the direct consequences of his plea. [cites omitted]"). Habeas corpus relief for this claim should be denied. C. Ineffective Assistance of Counsel
Petitioner also avers that he was deprived of effective assistance of counsel when his attorney advised him to enter a plea of guilty but mentally ill. See Amended Petition at [3].
In order for a petitioner to establish ineffective assistance of counsel under the federal Strickland standard, he must show: [1] that counsel's performance was "deficient" and [2] that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
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. See Senk v. Zimmerman, 886 F.2d 611, 615 (3d Cir. 1989) ( quoting Strickland, 466 U.S. at 688, 690).
To establish prejudice, a petitioner must demonstrate a reasonable probability that, but for unprofessional errors, the result would have been different. This standard is less strict than the "more likely than not" standard. Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992), cert. denied, 507 U.S. 954 (1993). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 358 ( quoting Strickland, 466 U.S. at 694).
As the Supreme Court has prescribed a rule which governs Mr. Allen's ineffective assistance of counsel claim, the Strickland standard "shape[s] the contours of an appropriate analysis of a claim of constitutional error to merit review of a state court's decision under section 2254(d)(1)'s `contrary to' prong." Matteo, 171 F.3d at 886.
"This two-part test is applicable to petitioners who challenge the effectiveness of counsel after the entry of a guilty plea. When such persons enter a plea of guilty on the advice of counsel, the voluntariness of the plea depends on whether there is a reasonable probability that, but for counsel's errors, the defendant would have proceeded to trial instead of pleading guilty. A reasonable probability is one which is `sufficient to undermine confidence in the outcome'" (internal citations omitted). USA v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997).
Mr. Allen again points out that he was taking psychotropic medication at the time of his guilty plea; however, this issue has already been addressed. The medications did not impair his ability to function.
It is claimed that counsel failed to further investigate Petitioner's mental health status after the evaluations by Dr. Miazzo. Mr. Allen only makes bald assertions that his counsel did not pursue his own investigation of his client's mental health or research the alternative of an insanity defense. A neutral court-appointed psychiatrist examined Petitioner on three occasions, two of which were in close proximity to his guilty plea — each time Mr. Allen was found competent to stand trial and to plead guilty. Noting Petitioner's questionable credibility concerning the effect of his medications on his ability to function, there is no indication that another psychiatrist would have come up with a different conclusion.
Mr. Allen also asserts that counsel's representation was defective because he allegedly directed Petitioner to tell Judge Jones that he understood the nature of the proceedings and because he promised Mr. Allen that, in exchange for his plea, he would receive concurrent sentences and be admitted to a mental facility. Petitioner provides no evidence to support these statements. Moreover, Mr. Allen stated on the record that no threats had been made to him and that he was satisfied with his attorney's representation at that time. Furthermore, as noted in Ms. Rodrigues' Finley letter:
In addition to the above, as previously stated, the Commonwealth had a very strong case against the petitioner. ( See Exhibit "E"). The petitioner's likelihood of prevailing at trial was therefore extremely slim, and he faced a maximum of 300 years imprisonment and more than $250,000 on the felonies alone if he were tried and convicted. (N.T. 7/12/95, pp. 16-17). Moreover, it should be noted that one of the mental health evaluations indicated that petitioner's mental state was probably not solely responsible for his past crimes. ( See Exhibit "D"). Another stated that he faced the possibility of a mental relapse should he undergo the stress of a trial. ( See Exhibit "B"). A guilty plea induced by counsel's advice of the likely consequences of going to trial is not invalid. Correspondence to the Honorable Genece E. Brinkley by Sondra R. Rodrigues, Esquire dated December 15, 1996, at 6.
By pleading guilty but mentally ill, Mr. Allen was able to avoid what would have for all intents and purposes been a life sentence. Additionally, he was able to obtain treatment for his mental difficulties. Counsel's performance was not deficient, and this claim for habeas corpus relief is not warranted.
III. RECOMMENDATION
Consistent with the above discussion, it is recommended that Petitioner's habeas application, pursuant to 28 U.S.C. § 2254, be DENIED AND DISMISSED WITHOUT AN EVIDENTIARY HEARING. It is further recommended that a finding be made that there is no probable cause to issue a certificate of appealability.