Opinion
22-CV-5032
07-01-2024
JOSE CESPEDE v. MARK WAHL, et al.
REPORT AND RECOMMENDATION
SCOTT W. REID, UNITED STATES MAGISTRATE JUDGE
This is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. §2254 by Jose Cespede, who is currently incarcerated at SCI Waymart, in Waymart, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed in part and denied in part.
I. Factual and Procedural Background
Following a jury trial in the Court of Common Pleas of Philadelphia County, Cespede was convicted on May 14, 2016, of possession of heroin with intent to distribute, and related conspiracy. Petition at ¶¶ 2(a) and 5. He was sentenced on August 30, 2016, to 10-30 years' incarceration. Id. at ¶¶ 2(b) and 3; Commonwealth v. Cespede, 3178 EDA 2016 (Pa. Super. May 14, 2019), attached to Commonwealth's Response as Exhibit B, at 7.
The facts underlying Cespede's conviction include the following:
On March 3, 2015, a team of federal and state law enforcement officers including Homeland Security Investigations Special Agent Edward Troy were conducting surveillance outside of an apartment in Northeast Philadelphia as part of an ongoing investigation of a group of men suspected of operating a heroin processing mill. During the course of the surveillance operation that day, Agent Troy observed a man, later identified as Dalton Abreu, exit a residence located at 5144 Whitaker Avenue with a duffel bag, a baseball bat, and a baseball glove. Agent Troy briefly lost sight of Abreu, but soon sighted him standing in front of a 2006 gold Chrysler minivan parked directly
behind 5144 Whitaker Avenue. Abreu was no longer carrying the items. Agent Troy recognized the van around which Abreu was standing from a surveillance operation that took place approximately 15 months earlier, in “December of 2013, late December 2013”
After Abreu left the area, officers, including Agent Troy, looked through the back window of the gold minivan and saw two black duffel bags, a baseball bat, and a baseball glove. Agent Troy contacted the Philadelphia Police Department and requested the assistance of a canine officer. Upon arrival, the canine signaled the presence of narcotics. Officers waited outside the van in anticipation of obtaining a search warrant. While they waited, Abreu returned in a brown Honda Accord driven by a man later identified as Simeon Gonzalez. [Cespede] was a passenger in the car's back seat.Commonwealth v. Cespede, 281 A.3d 1088 (Table), 2022 WL 2298017 (Pa. Super. June 27, 2022) at *1-2.
Certain parts have been excerpted from this quote because they contain assertions which Cespede argues are erroneous. These assertions, and their consequences, are discussed below.
Officers detained all three passengers from the Honda Accord. Id. at *2. When Cespede was frisked, police found a Chrysler key fob in his pocket. Id. Agent Troy pressed the button on the key fob, and the lights flashed on the gold van which was parked in front of 5144 Whitaker Avenue. Commonwealth v. Cespede, 3178 EDA 2016 at 4.
The police obtained a search warrant for the gold van. 2022 WL 2298017 at *2. In the van, they found duffle bags containing over 1,250 grams of cut heroin and numerous materials used in the drug trade. Id. They also found an electric bill addressed to Cespede, although not at the Whittaker Avenue address. Id. A search of the Whitaker Avenue house, outside of which the van was parked, yielded more heroin processing paraphernalia, and more documents with Cespede's name. Further, the driver of the Honda agreed to a search which led to the discovery of a bag containing, among other inculpating evidence, Cespede's Dominican Republic voter ID, and “pieces of cardboard with handwriting listing names and various dollar amounts up to $39,000” which were similar to drug ledgers found in the Whitaker Avenue house. Id. at 15.
Cespede's trial counsel moved to suppress the admission of the objects found in the van as the “fruit of the poisonous tree” of an illegal search, referring to both the “stop and frisk” and to the pushing of the button on the key fob. 3178 EDA 2016 at 6-7. After a hearing, however, his motion was denied. Id.
After the denial of his post-sentence motion, Cespede filed a timely direct appeal in the Pennsylvania Superior Court. Id. at 7. In it, he raised the following issues: (1) the trial court erred in denying his motion to suppress the evidence found as a result of unconstitutional searches; (2) the evidence was insufficient to prove that he possessed the heroin charged against him; and (3) the evidence was insufficient to prove conspiracy. Id. The Pennsylvania Superior Court, however, denied his appeal on May 14, 2019. Id. Cespede's petition for allowance of appeal to the Pennsylvania Supreme Court was denied on December 10, 2019. 2022 WL 2298017 at *2.
On November 30, 2020, Cespede filed a petition under Pennsylvania's Post-Conviction Relief Act, (“PCRA”), 42 Pa. C.S. §9541, et seq. Id. In it, he argued that trial counsel was ineffective for failing to introduce Cespede's passport as evidence at trial. Id. He argued that:
[T]he court had imposed an illegal sentence based on the “inaccurate information and false assumption[]” that Cespede had previously been arrested for heroin trafficking on February 27, 2014, “as the court claimed in its opinion.” .. Cespede asserted that his passport would have contradicted the allegedly false testimony from Agent Troy that Agent Troy recognized Cespede from a prior, February 27, 2014 arrest and, had the passport been presented, he “would have been able to prove that information provided by law enforcement was false” and “there was a reasonable probability [he] would have been acquitted.Id. (“Appellant” replaced with “Cespede” for ease in reading). He submitted passport pages bearing an entry stamp from the Dominican Republic dated February 27, 2014.
Although Cespede filed his PCRA petition pro se, he later retained counsel. Id. Counsel filed a response to the PCRA court's notice under Pa. R. Crim. P. 907 that it intended to dismiss the petition. Id. at *2-3. There, Cespede argued that his passport would also have contradicted Agent Troy's testimony that he recognized Cespede from a surveillance operation occurring in “late December 2013,” and submitted additional passport pages showing that Cespede entered the Dominican Republic on December 24, 2013. Id. at *3.
The PCRA court dismissed Cespede's petition on June 16, 2021. Id. Cespede then appealed the dismissal of his PCRA petition to the Pennsylvania Superior Court. He set forth his appellate issues as follows:
1. Whether trial counsel's performance was objectively deficient for failing to introduce Appellant's passport which would have conclusively established that the testimony of the Homeland Security Agent Edward Troy was false, whether the defense attorney had no reasonable basis for [failing] to produce the passport, and whether there was a reasonable probability of acquittal had the defense attorney produced Appellant's passport for inspection by the jury?
2. Whether the conviction was obtained and sentence imposed in violation of the due process clause of the Fourteenth Amendment because it was based on the perjured testimony of the Homeland Security Agent Edward Troy which is imputed to the prosecutor?Id.
The Pennsylvania Superior Court denied relief in Cespede's PCRA appeal on June 17, 2022, and it denied his motion for reargument on August 29, 2022. Id. Cespede did not seek review in the Pennsylvania Supreme Court.
On December 19, 2022, Cespede filed the present, counseled, petition for habeas corpus relief. In it, he raised the following issues:
(1) Trial counsel was Constitutionally ineffective for failing to put his passport in evidence to demonstrate both (a) that he could not have been seen driving the gold van in December, 2013, because he was then in the Dominican Republic; and (b) he could not
have been driving the van on February 27, 2014, as the trial court wrote in its opinion, because on that day, too, he was located in the Dominican Republic; and
(2) His right to due process was violated when the Commonwealth knowingly presented the false testimony of Agent Troy, and failed to correct his false statements.Petition at ¶ 12.
On January 12, 2023, Cespede filed a memorandum of law supporting his petition. In it, he briefed several claims which he had not raised in his petition, specifically: (3) “The search of Petitioner without probable cause violated the Fourth Amendment and the right to effective assistance of counsel”; (4) “the evidence was insufficient to prove that Petitioner actually or constructively possessed with intent to deliver more than 1,000 grams of heroin or conspired with unidentified persons to do so”; and (5) redundantly, “the evidence was insufficient to prove that Petitioner conspired with unidentified persons to possess heroin with intent to distribute.”
II. Relevant Legal Standards
A. Standard for Issuance of a Writ of Habeas Corpus
In enacting the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress significantly limited the federal courts' power to grant a writ of habeas corpus. When the claims presented in a federal habeas petition are adjudicated on the merits in the state courts, a federal court may not grant habeas relief unless the adjudication either (a) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; or (b) 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).
As the United States Supreme Court has explained, a writ may issue under the “contrary to” clause of Section 2254(d)(1) only if the “state court applies a rule different from the governing rule set forth in [United States Supreme Court] cases or if [the state court] decides a case differently than [the United States Supreme Court] has done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). A writ may issue under the “unreasonable application” clause only where there has been a correct identification of a legal principle from the Supreme Court but the state court “unreasonably applies it to the facts of the particular case.” Id. This requires a petitioner to demonstrate that the state court's analysis was “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
Moreover, state court factual determinations are given considerable deference under AEDPA. Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004). A federal habeas court can disagree with a state court's credibility determination, but “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. The AEDPA Statute of Limitations
AEDPA, the habeas corpus statute, applies a one-year statute of limitations to the filing of a habeas corpus petition. The one-year period generally begins to run from the date on which the judgment became final at the conclusion of direct review, or the expiration of the time for seeking direct review. 28 U.S.C. §2244(d)(1)(A). A properly filed petition for collateral relief, such as a PCRA petition, tolls the statute of limitations. 28 U.S.C. §2244(d)(2). The period begins to run again when the PCRA judgment becomes final.
The limitations provision of AEDPA is not jurisdictional in nature, and can therefore be waived by the Commonwealth, or subject to equitable tolling. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002). Generally, a litigant seeking equitable tolling bears the burden of establishing (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. 631, 649 (2010); Pace v. DiGuglielmo, 544 U.S. 408 (2005).
“Extraordinary circumstances” have been found to exist where a plaintiff has shown that (1) the defendant actively misled him; (2) he has “in some extraordinary way” been prevented from asserting his rights; or (3) he timely asserted his rights, but mistakenly in the wrong forum. Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005); U.S. v. Midgley, 142 F.3d 174, 178 (3d Cir. 1998).
C. Exhaustion and Procedural Default
Before a federal court can consider the merits of a habeas claim, a petitioner must comply with the exhaustion requirement of 28 U.S.C. § 2254(b), giving “the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This requires the claim to have been presented at least to the Pennsylvania Superior Court. Lambert v. Blackwell, supra, at 387 F.3d 233-4.
A petitioner's failure to exhaust state remedies may be excused in limited circumstances on the ground that exhaustion would be futile. Lambert v. Blackwell, 134 F.3d 506, 518-19 (3d Cir. 1997). Where such futility arises from a procedural bar to relief in state court, the claim is subject to the rule of procedural default. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). In addition, if the state court does not address the merits of a claim because the petitioner failed to comply with the state's procedural rules in presenting the claim, it is also procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The procedural default doctrine prohibits a federal court from reviewing a habeas claim which was dismissed by the state court based on an independent and adequate state procedural rule. Coleman, supra, at 749; Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007). The doctrine is grounded in concerns of comity and federalism. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). “[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Edwards, supra, quoting Coleman, supra, at 501 U.S. 732.
A procedural rule provides an independent and adequate basis for precluding federal review if: (1) the rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claim on the merits; and (3) their refusal is consistent with other decisions. Nara, at 488 F.3d 199. It is “independent” if it is independent of the federal question presented by the petitioner. Id. It is “adequate” for procedural default purposes if it was “firmly established, readily ascertainable, and regularly followed at the time of the default.” Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001). These requirements ensure that federal review is not barred unless a habeas petitioner had fair notice of the need to follow what could fairly be called rules of general applicability. Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005).
Procedural default can be overcome only where a habeas petitioner shows: (a) cause for his failure to comply with state procedural rules, and prejudice resulting therefrom; or (b) that a fundamental miscarriage of justice will occur if the claim is not considered. Edwards, supra. A showing of cause demands that the petitioner establish that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Coleman, supra, at 501 U.S. 753. Examples of suitable cause include a showing that the factual or legal basis for a claim was not reasonably available to counsel, or a showing that “some interference by officials” made compliance with the state rule impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). Once cause is proven, a petitioner must also show that prejudice resulted from trial errors that worked to the petitioner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494.
A fundamental miscarriage of justice ordinarily requires a showing of strong evidence of actual innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995). This requires the petitioner to present new, reliable evidence of innocence that was not presented at trial. Id. at 324.
D. Ineffective Assistance of Counsel
To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must show that (a) counsel's performance was deficient and (b) counsel's actions prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1983).
Counsel's conduct is presumed to fall “within the wide range of professional assistance” and it is the petitioner's burden to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, at 466 U.S. 689-90. The inquiry requires courts to be highly deferential to counsel's reasonable strategic decisions and guard against the temptation to engage in hindsight. Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). The mere existence of alternative - even preferable or more effective - strategies does not satisfy the requirements of demonstrating ineffectiveness under Strickland. Marshall, supra, at 307 F.3d 86. Further, counsel cannot be found ineffective for failing to raise a meritless claim. Laffler v. Cooper, 566 U.S. 156, 167 (2012); Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000).
To prove prejudice, the defendant need not show that the outcome of the proceeding would have been different, but must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, at 466 U.S. 694. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” Id at 694. In other words, the petitioner must show that the “result of the proceeding was fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
III. Discussion
A. This Petition is Timely Under AEDPA
The Commonwealth argues that Cespede's habeas petition was untimely filed. According to the Commonwealth, Cespede's AEDPA one-year statute of limitations began to run on March 9, 2020, 90 days after the Pennsylvania Supreme Court denied his petition for review, at the end of the period during which he could have sought certiorari in the United States Supreme Court. Thus, when he filed his PCRA petition on November 30, 2020, 266 days of the year had already elapsed. This is not disputed by Cespede.
However, the Commonwealth argues that the remaining 99 days in the limitations period began running again on the day after August 29, 2022, when the Pennsylvania Superior Court denied his petition for reargument, because he did not seek review in the Pennsylvania Supreme Court. This would have made the due date for his habeas corpus petition December 6, 2022. Yet his petition was not filed until December 19, 2022. Cespede, on the other hand, claims that the limitations period did not begin to run until thirty days after the petition for reargument was denied on “September 29, 2022.” Cespede's Reply Memorandum at 9.
Cespede is wrong on the facts; the petition for reargument was unquestionably denied on August 29, 2022. 2022 WL 2298017 at *1. However, the Commonwealth's view of the law is inaccurate. Cespede's limitations period remained tolled by his PCRA proceedings until the day following the 30 days in which he could have filed a petition for review in the Pennsylvania Supreme Court. See Jordan v. Salamon, Civ. A. No. 22-952, 2024 WL 1861531 at *4 (M.D. Pa. Apr. 29, 2024) (citing Pa. R.A.P. 1113(a), which establishes the due date for a petition for allowance of appeal to the Pennsylvania Supreme Court), and Bryant v. Gilmore, Civ. A. No. 19327, 2020 WL 1875527 at *3 (E.D. Pa. Apr. 15, 2020). Thus, Cespede had 30 days more in which to file a habeas corpus petition than the Commonwealth claims, and his AEDPA statue of limitations ran on or about January 9, 2022. This petition is therefore timely.
B. Claim One: Ineffective Assistance of Counsel
In his first claim, Cespede argues that his defense counsel was ineffective for failing to admit his passport in evidence to refute Agent Troy's testimony about recognizing him from earlier surveillance. He does not specify whether he believes that this ineffective behavior relates to Agent Troy's testimony at the suppression hearing, or at trial. This is significant, because, at the suppression hearing, when asked when he saw Cespede driving the gold van, Agent Troy replied: “I believe it was December of 2013, late December, 2013.” Notes of Testimony, April 28, 2016, at 23:19-20. At trial, however, he testified only that he saw this “in December of 2013.” Notes of Testimony, May 10, 2016, at 43:13-19. Cespede argues that his passport would have shown that he entered the Dominican Republic on December 24, 2013.
Cespede appears to have exhausted this claim only as to Agent Troy's testimony at trial. Although neither party has provided the court with Cespede's PCRA petition, the Superior Court stated that the issue raised was whether “there was a reasonable probability of acquittal had the defense attorney produced Appellant's passport for inspection by the jury.” 2022 WL 2022 WL 2298017 at *3. (Emphasis supplied).
The Pennsylvania Superior Court dismissed the exhausted claim as waived for failure to comply with Pennsylvania Rules of Appellate Procedure in that Cespede did not cite the transcript location of Agent Troy's relevant testimony. Id. at **2, 4-5. Pennsylvania Rules of Appellate Procedure 2111 and 2119 require a petitioner to support each question raised with pertinent authority, including by referencing “the place in the record where the [relevant] evidence may be found.” Id. at *4. The Superior Court wrote that it was not required to “scour the record to find evidence to support an argument; instead we will deem the issue to be waived.” Id., quoting Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018).
Pennsylvania Rules of Appellate Procedure 2111 and 2119 have been found to be independent and adequate rules supporting a finding of procedural default. See Randall v. Zaken Civ. A. No. 18-961, 2023 WL 10511610 at *5 (E.D. Pa. Dec. 8, 2023), approved and adopted 2024 WL 1289692 (E.D. Pa. Mar. 26, 2024), citing Charlton v. Wakefield Civ. A. No. 07-200, 2010 WL 724521 at *9-10 (W.D. Pa. Mar. 1, 2020), Santini v. Wenerowicz, Civ. A. No. 13-6183, 2014 WL 6822515 (E.D. Pa. Dec. 4, 2014); Kirnon v. Klopotski, 620 F.Supp.2d 674, 696 (E.D. Pa. 2008); and Branthafer v. Glunt, Civ. A. No. 14-294, 2015 WL 5569128 at *12 n.12 (M.D. Pa. Sep. 22, 2018).
Cespede has not acknowledged that this claim was procedurally defaulted. He has not argued cause for default. Nor has he argued that a fundamental miscarriage of justice will occur if the claim is not considered, beyond a single, unelaborated, statement that his “entire claim is based on actual, factual innocence so it cannot be time barred or procedurally defaulted.” Cespede's Reply at 9.
The showing of cause requires an objective factor external to the defense which caused the default. Coleman, supra, at 501 U.S. 753. None is apparent here. As for actual innocence, it is abundantly clear that, even if Agent Troy could have been shown to have been wrong about seeing Cespede in December, 2013, this would not have precluded a finding that he was engaged in heroin trafficking when he was arrested on March 3, 2015. Thus, Cespede is far from making the strong showing of actual innocence required by Schlup v. Delo, supra, to excuse procedural default.
Because this claim was procedurally defaulted, this Court may not consider it on its merits. However, I note there is little logic to the claim as it pertains to Agent Troy's testimony at trial. Evidence from the passport that Cespede arrived in the Dominican Republic on December 24, 2013, would not have precluded the jury from believing that Agent Troy saw him on any of the 23 days preceding this.
Further, despite dismissing the claim, the Pennsylvania Superior Court accurately noted that the evidence against Cespede was so strong that it is unlikely the jury would have exonerated him, even if it did not believe that Agent Troy had seen him previously: he was arrested on March 3, 2015, with a key in his pocket to a van which contained heroin, drug trafficking equipment, and a bill addressed to him. The Whitaker Avenue house, outside of which the van was parked, contained more heroin processing paraphernalia, and more documents bearing Cespede's name. The Honda contained a bag holding yet other documents bearing Cespede's name, as well as drug sales ledgers.
C. Claim Two: The Prosecution's Knowing Use of Peijured Testimony
Cespede claims that his due process rights were violated by the prosecutor's knowing and intentional use of perjured testimony from Agent Troy regarding his having seen Cespede previously in the heroin-trafficking surveillance operation. Although he cites Giglio v. United States, 405 U.S. 150 (1972), Giglio pertains to the non-disclosure of impeachment evidence. Cespede has not pointed to any piece of undisclosed evidence.
It is more accurate to say that Cespede has raised a claim under Napue v. Illinois, 360 U.S. 264 (1959), in which the United States Supreme Court held that a defendant's due process rights are violated where the prosecution knowingly uses perjured testimony. Violation of Napue is shown by demonstrating that (1) a witness committed perjury; (2) the prosecutor knew or should have known that the testimony was false; (3) the false testimony was not corrected; and (4) there is a reasonable likelihood that the perjured testimony affected the judgment of the jury. Haskell v. Sup't Green SCI, 866 F.3d 139, 146 (3d Cir. 2020).
In his PCRA appeal, Cespede included a claim in which he argued that the prosecution violated his due process rights by supporting Agent Troy's “‘false testimony' that [Cespede] had been previously arrested in connection with the heroin mill on February 27, 2014, and that he observed [Cespede] in ‘late December 2013,' which [Cespede]'s passport contradicts.” 2022 WL at *5. That claim, like his first claim, was deemed waived because of Cespede's failure to cite to Agent Troy's allegedly false testimony. Id. For the same reasons as with his first habeas claim, Cespede has not shown a basis for overlooking his procedural default.
Here again, therefore, the defaulted claim cannot be considered on its merits. However, it can again be noted that it would not likely succeed. Cespede no longer maintains that Agent Troy falsely testified that he was arrested in February, 2014, and it does not appear that Agent Troy ever so testified. Cespede does cite, in his reply memorandum, Agent Troy's trial testimony that he saw Cespede driving the gold van “in December of 2013.” However, as discussed above, this testimony is obviously not contradicted by Cespede having left the United States on December 24, 2013. It is not even clear that Agent Troy's statement at the suppression hearing that he saw Cespede in “late December, 2013” would be impeached by the passport. Agent Troy did not specify the date on which he claimed to have seen Cespede, or even seem particularly certain when it was, prefacing his testimony with “I believe .. .” Notes of Testimony, April 28, 2016, at 23:19-20.
Therefore, Cespede cannot show with certainty that Agent Troy's testimony was false. More importantly, he has pointed to no proof that it was intentionally false. Even if Agent Troy's testimony was inaccurate, Cespede has not made any effort to show that the prosecution knew or should have known that it was; indeed, his ineffective assistance claims are based on the fact that trial counsel never produced his passport. In the absence of a knowing presentation of false testimony, there can be no Napue claim.
D. Claim Three: “The Search of Petitioner Without Probable Cause Violated the Fourth Amendment and the Right to Ineffective Assistance of Counsel”
Cespede's third claim is something of a mash-up between a claim under the Fourth Amendment, and a Sixth Amendment claim of ineffective assistance of counsel. To the extent that it is a Fourth Amendment claim, it is not cognizable: “In Stone v. Powell, 428 U.S. 465 (1976), the Court removed from the purview of federal habeas court challenges resting on the Fourth Amendment, where there has been a full and fair opportunity to raise them in the state court.” Wainwright v. Sykes, 433 U.S. 72, 79-80 (1977). Cespede had a full and fair hearing on his suppression motion, and further review of the motion in his direct appeal to the Pennsylvania Superior Court.
More substantively, Cespede argues:
The suppression motion was denied because trial counsel failed to investigate and discover Petitioner's passport. The passport would have been convincing evidence that Agent Troy's testimony that he saw Petitioner driving the gold minivan in late December, 2013, was materially false. If trial counsel had produced the passport, there was a reasonable probability the evidence would have been suppressed.Memorandum in Support of Petition for Habeas Corpus at 31.
It does not appear that Cespede raised an ineffective of assistance of counsel claim in the Pennsylvania courts relating to his trial counsel's failure to admit his passport into evidence at the suppression hearing. This would, therefore, appear to be a claim which is unexhausted and procedurally defaulted.
Nevertheless, it is worth touching upon the merits of this claim, because the trial court undoubtedly made an incorrect statement in the factual section of its Rule 1925 Opinion that Agent Troy “recognized [Cespede] from a preceding arrest involving the heroin mill operation at 7409 Oxford Avenue in Philadelphia on February 27, 2014.” Commonwealth v. Jose E. Cespede, No. CP-51-CR-0004559-2015 (C.C.P. Phila. June 6, 2018), attached to Commonwealth's Response as Exhibit A at 7. The trial court also wrote: “This Agent also recalled that [Cespede] had been seen during the prior surveillance two years earlier operating the same Chrysler Minivan that was now holding the processed heroin-filled duffle bags.” Id. The Pennsylvania Superior Court cited the trial court's factual summary in its own opinion on Cespede's direct appeal. 3178 EDA 2016 at 3-4.
Thus, to the extent that Agent Troy's testimony about his previous contact with Cespede - or what the trial judge believed to be Agent Troy's testimony - influenced the judge's conclusion that the seizure of the key and its use did not violate Cespede's Fourth Amendment rights, it would be legitimate to consider whether defense counsel's failure to obtain his passport to disprove that testimony might have affected the outcome of the motion.
However, the Pennsylvania Superior Court's discussion in Cespede's direct appeal of the claim that the trial court erroneously denied the suppression motion reveals that Agent Troy's testimony that he had seen Cespede previously was not material to the denial of the motion, even if Agent Troy intended it to provide a basis for searching Cespede:
Here, we conclude that, even if the retrieval of the key and use of the fob constituted violations, no evidence would have been suppressed. The search of the Honda Accord was based on consent of the driver and the searches of the minivan and Whitaker House were based on warrants supported by probable cause.
The evidence obtained was not found as a result of the stop, frisk, or use of the fob. Rather, the evidence was obtained following the execution of the search warrants supported by probable cause. Although the warrant for the minivan mentioned the key fob found on Cespede and that the fob activated the minivan, this information was superfluous and not a material portion of the warrant, and, if the use of the key fob was removed from the warrants, the warrants would still be supported by probable cause.3178 EDA 2016 at 14.
Even if this is somewhat overstated, it is by and large supported by the record. The gold van had attracted the attention of the police even before Cespede arrived in the brown Honda. Police had already obtained a drug-sniffing dog, which alerted to drugs in the van. 2022 WL 2298017 at *2. Thus, the van would almost certainly have been searched even without the discovery of the key fob on Cespede's person.
Since Agent Troy's testimony was not a decisive factor in the trial court's decision to deny the suppression motion, and was certainly not a part of the Pennsylvania Superior Court's affirmance of that ruling, counsel's failure to obtain the passport did not prejudice Cespede as is required to show ineffective assistance under Strickland.
E. Claims Four and Five: Sufficiency of the Evidence
Cespede's final two claims in his habeas petition assert that the evidence at trial was insufficient to support his conviction for possession of heroin with intent to distribute, and his conviction for conspiracy. These claims were properly exhausted and rejected on the merits in Cespede's direct appeal.
As above, this Court can disturb the Pennsylvania court's decision on this issue only if it was contrary to or an unreasonable application of clearly established federal law, or resulted in a decision that was based on an unreasonable determination of the facts. 28 U.S.C. §2254(d).
The Superior Court of Pennsylvania agreed with the trial court's disposition of the sufficiency of the evidence claims:
The trial court set forth the elements of the crimes and the relevant law and found the Commonwealth presented sufficient evidence to support the convictions for PWID [possession with intent to distribute] and conspiracy. It reasoned that the surveillance, the items found in the bag in the Honda Accord, the evidence found in the minivan, and the items and paperwork found in the Whitaker House supported the convictions. We agree with the trial court the evidence was sufficient.3178 EDA 2016 at 19.
The Court of Appeals for the Third Circuit has recently reiterated:
When a petitioner alleges entitlement to habeas relief by challenging the sufficiency of the evidence supporting his state court conviction. .. the clearly established federal law governing the insufficient evidence claim is the standard set out by the Supreme Court in Jackson v. Virginia. 443 U.S. 307 (1979). See, e.g., Eley [v. Erickson], 712 F.3d [837 (3d Cir. 2013)] at 847 (“The clearly established federal law governing Eley's [insufficient evidence] claim was determined in Jackson”). Under Jackson, “‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” Jackson, 443 U.S. at 319[.]Travillion v. Superintendent Rockview SCI, 982 F.3d 896, 902 (3d Cir. 2020).
The Pennsylvania Superior Court cited Pennsylvania law, rather than Jackson. However, the Court of Appeals for the Third Circuit has decided that the Jackson standard is identical to Pennsylvania's test for sufficiency of the evidence. Piasecki v. Court of Common Pleas of Bucks County, Pennsylvania, Civ. A. No. 14-7004, 2021 WL 1105338 (E.D. Pa. Mar. 23, 2021) at *5, citing Evans v. Court of Common Pleas of Delaware County, 959 F.2d 1227, 1232-3 (3d Cir. 1992).
Further, the Pennsylvania Superior Court's decision was not based on an unreasonable determination of the facts. As enumerated by the trial court in its Rule 1925 decision, the evidence against Cespede included the following: (a) he was arrested in the company of two individuals who had been detected by law enforcement using the same car transporting the bag which was later found to contain heroin, drug processing materials, and a bill addressed to Cespede; (b) a backpack found in the Honda contained a Dominican Republic election card with Cespede's name and photograph, medical records in Cespede's name with his known residential address, and drug sales ledgers; and (c) he possessed the key to the minivan where the bag containing the heroin was found. Commonwealth's Exhibit A at 16-18.
It is true that the trial court also relied on Agent Troy's testimony that he had seen Cespede driving the gold minivan previously in the investigation. Id. However, even leaving this out of the mix, it is impossible to say that no reasonable juror could have found Cespede guilty of drug trafficking and conspiracy on the remaining evidence introduced against him at trial, as required under Jackson for Cespede to prevail on these claims. Cespede has not, therefore, shown a basis upon which this Court could disturb the Pennsylvania courts' rejection of the insufficient evidence claims.
IV. Conclusion
For the reasons set forth above, I now make the following:
RECOMMENDATION
AND NOW, this 1st day of July, 2024, it is respectfully recommended that this petition be dismissed in part and denied in part. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. The petitioner may file objections to this Report and Recommendation within fourteen days after being served with a copy. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007).