Opinion
Civil Action No. 03-6405.
June 8, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Somerset, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
FACTS AND PROCEDURAL HISTORY :
On January 26, 1996, after a bench trial before the Honorable Robert A. Latrone, Bush was convicted of second-degree murder, robbery, and possession of an instrument of crime. The charges arose from the August 31, 1994, murder of Ernest Dandridge. Mr. Dandridge and Donald Burroughs had gone to 10th and Godfrey to sell two jackets. They approached the Petitioner and Gerald Gilmore, inquiring whether they were interested in the jackets. Bush tried on one of the jackets, said he wanted to buy it, and pulled a gun from behind his back. (N.T. 1/24/96, 116). Burroughs immediately began walking away. Bush told them not to run and was holding Dandridge by the collar. (N.T. 1/25/96, 18, 31-32). When Dandridge attempted to run, Bush fired three times, hitting Dandridge in the leg and back. (N.T. 1/24/96, 118-19). Dandridge died as a result of his gunshot wounds.
On June 14, 1996, Judge Latrone sentenced Bush to life imprisonment for the murder conviction, with a concurrent 2½-5 year sentence for the remaining charges. Bush filed a timely appeal, claiming that the evidence was insufficient to support the second-degree murder conviction because the robbery was completed before the murder took place. On July 31, 1997, the Superior Court affirmed the judgment of sentence. Commonwealth v. Bush, 2289 Phila. 1996. The Pennsylvania Supreme Court denied allocatur on November 18, 1997. Commonwealth v. Bush, 440 EAL 1997.
On June 17, 1998, Bush filed a petition pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551, claiming that trial counsel was ineffective for failing to challenge the legality of Bush's arrest and failing to investigate certain witnesses. He also claimed that the prosecutor withheld exculpatory evidence. After the court appointed counsel, the petition was dismissed on September 29, 1999. Bush filed a timely appeal. On January 15, 2003, the Superior Court affirmed the denial of collateral relief. On June 24, 2003, the Pennsylvania Supreme Court denied allocatur.Commonwealth v. Bush, 3497 EDA 1999.
On November 24, 2003, Bush filed this petition for habeas corpus relief, claiming, as he did in his state collateral appeal, that trial counsel was ineffective for failing to challenge the legality of his arrest and for failing to investigate certain witnesses that were interviewed by the police. Finally he claims that the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding the radio transmittal tapes of the night of the murder.
DISCUSSION :
Ordinarily, before a federal court may address the merits of a habeas petitioner's claims, the petitioner must demonstrate that he has exhausted the remedies available in the state courts. Here, because Bush presented his claims in his PCRA petition, and appealed the denial of collateral relief to the state appellate courts, the claims are exhausted.
Unfortunately, however, because Bush did not comply with the state procedural rules governing appeals, his third claim, theBrady claim, is procedurally defaulted.
[I]f the final state court presented with a federal claim refuses to decide its merits based on an established state rule of law independent of the federal claim and adequate to support the refusal, federal habeas review is foreclosed unless there is cause and prejudice or a showing of innocence.Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996) (citingColeman v. Thompson, 501 U.S. 722, 750 (1991). Here, although Bush presented his Brady claim to the state courts in his collateral appeal, the state courts found that he had waived the claim by failing to present it at the earliest possible opportunity. Commonwealth v. Bush, No. 59 October Term, 1994 (Sept. 29, 1999, Latrone, J.), at 14. Although the state courts went on to address the merits of his claims, the Supreme Court has held that the finding of waiver is sufficient to support a finding of procedural default in the context of habeas corpus even when, as here, the state courts make such a finding in an alternative holding. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989)). Thus, the claim is procedurally defaulted.
The PCRA Court specifically found that the claim was waived. The Superior Court adopted the reasoning of the PCRA Court in its opinion dated January 15, 2003.
We have reviewed each of Appellant's claims in light of the record and the analysis set forth by the PCRA court in support of its decision to dismiss them as meritless. We have determined the PCRA court properly concluded that Appellant has set forth no claims which would entitled him to relief. Moreover we find the PCRA court has provided a thorough discussion of the issues as they relate to the specific facts of this case and has carefully analyzed and applied the relevant law in reaching its ultimate conclusion set forth in its comprehensive opinion. We affirm the denial of PCRA relief for the reasons set forth by the PCRA court in its September 29, 1999, opinion.Commonwealth v. Bush, 3497 EDA 1999, at 2.
The federal court will excuse a procedural default only when the petitioner establishes cause for his default and prejudice resulting, therefrom, or that a failure to consider the claim will result in a fundamental miscarriage of justice. Here, Bush does not attempt to establish either. Any attempt on Bush's part to claim that counsel's ineffectiveness provides cause for the default would fail because such a claim would have to be exhausted to provide cause to excuse the default. See Carpenter v. Edwards, 529 U.S. 446, 452 (2000). Although Bush has asserted the ineffectiveness of his trial counsel, he has never made a claim to the state courts that his counsel was ineffective for failing to pursue a Brady claim. Bush has also failed to supplement his claim with any evidence of his factual innocence, as is required to establish a fundamental miscarriage of justice. McCleskey v. Zant, 499 U.S. 467, 495 (1991) (citing Kuhlmann v. Wilson 477 U.S. 436, 454 (1986)).
Although not required to address the merits of a defaulted claim, even when the state courts address the merits in an alternative holding, see Harris supra, we note that Bush'sBrady claim has absolutely no merit. In order to constitute aBrady violation, the evidence withheld must be exculpatory. The state courts found that the radio tapes would not have provided exculpatory evidence because, as Bush acknowledges in his PCRA petition, no description of the perpetrator was broadcast over the radio. Moreover, the District Attorney produced a copy of the cover sheet which accompanied the radio transmittal tapes, establishing that they were produced to defense counsel prior to trial. See Exhibit 6, attached to Response.
In Bush's first two claims, he contends that his trial counsel was ineffective. In order to succeed on such a claim, Bush must establish that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In addition, Bush will not be entitled to habeas relief unless the state court's determination of these issues was contrary to or involved an unreasonable application of the Strickland standard, or was based on an unreasonable determination of the facts. Because we find that the state court properly considered Bush's claims and determined that they were without merit, we will recommend that his petition be denied.
Bush first contends that trial counsel was ineffective for failing to challenge the legality of the arrest warrant. In assessing a similar situation in Kimmelman v. Morrison, 477 U.S. 365 (1985), the Supreme Court held that a "meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim." Id, at 382. Here, the state courts found that the underlying Fourth Amendment claim lacked merit because probable cause existed to support the warrant. After reviewing the affidavit of probable cause, we agree.
Pursuant to Pennsylvania law, a warrant will not be issued without probable cause. Pa.R.Crim.P. 119. Probable cause exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest, and of which he had reasonable, trustworthy information, are sufficient to justify a man of reasonable caution in the belief that the suspect had committed a crime. Commonwealth v. Cox, 546 Pa. 515 (1996),cert. denied, Cox v. Pennsylvania, 522 U.S. 999 (1997). This standard is consistent with the federal standard governing probable cause. See Beck v. Ohio, 379 U.S. 89, 91 (1964) (probable cause has been defined as facts that would lead a reasonable man to conclude that a crime has probably been committed, and that the suspect probably committed it).
Here, the warrant was issued based on an eyewitness identification of the petitioner. Mr. Burroughs, the victim's sales partner, had a conversation with the Petitioner, saw him pull the weapon and ran, heard the shots fired, and saw his friend, lying shot in the street. (Affidavit of Probable Cause). He positively identified the Petitioner from a photo array of eight individuals. Id. This evidence was more than sufficient to support the warrant. Thus, the underlying Fourth Amendment claim fails and so, too, must the Sixth Amendment claim.
Finally, Bush claims that counsel was ineffective for failing to investigate the witnesses that had been interviewed by the police. Specifically, Bush identifies two witnesses that counsel failed to interview and call in his defense: Gerald Gilmore's aunt, and Andre Dandridge, the victim's brother. The state courts determined that Bush's claim lacked merit because he could not establish that either of these witnesses would have provided testimony favorable to Bush's case.
As previously stated, in order to obtain habeas relief, Bush must establish that counsel's performance fell below an objective standard of reasonableness and that his defense suffered prejudice as a result. Strickland, at 687. We agree with the state courts that Bush could establish neither.
Both of these witnesses were mentioned in Officer Ryan's Police Investigation Report. In his report, Officer Ryan stated that Gerald Gilmore's aunt had received information that someone named "Roy" had done the shooting. (Police Investigation Report, attached to Response). Obviously, calling a witness who identifies the Petitioner as the culprit does nothing to advance his case.
Andre Dandridge was identified as a man who approached Officer Ryan while the officer was talking to Gerald Gilmore's aunt. At that time, according to the report, Dandridge advised Officer Ryan that he thought the shooter was a man named David Spain. When Andre Dandridge gave a statement to the police the next day, he explained that he was looking for David Spain because he wanted to see if Mr. Spain knew what had happened. Mr. Dandridge also stated that he had been told by a friend's son that "Roy and Gerald" had been involved and Roy was the shooter. (Police Investigation Report, attached to Response). Considering these statements it is also clear that Andre Dandridge would not have provided any favorable testimony.
Based on the information that these two witnesses provided to the police, counsel's actions in not calling these witnesses cannot be considered unreasonable. Both witnesses would have pointed the finger at his client. Similarly, Bush cannot establish that counsel's failure to investigate or call these witnesses prejudiced his defense. If anything, calling these witnesses would have strengthened the case against Bush.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 8th day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be denied. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DENIED.
3. There is no basis for the issuance of a certificate of appealability.