Opinion
Civil Action No. 04-1719.
August 25, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. On July 28, 2000, the petitioner pled guilty in the Court of Common Pleas for Delaware County to a charge of possession of a controlled substance with the intent to deliver. The plea had been negotiated with the prosecution and, on the same day the court accepted the plea, the court sentenced the petitioner to a term of incarceration of 48 to 96 months. At the time the petitioner filed the habeas petition, he was serving his sentence at a state correctional institution.
On May 26, 2004, the petitioner notified the court that he was no longer incarcerated in a state correctional institution and he provided the court with an address in Philadelphia.
The petitioner raises the following claims. First, that the trial court lacked subject matter jurisdiction to hear his case. Second, that trial counsel was ineffective for failing to challenge the subject matter jurisdiction of the trial court. Third, that the evidence used against him was obtained by way of an unconstitutional search and seizure. Finally, that trial counsel was ineffective for advising the petitioner that a suppression hearing would be fruitless and that, instead of pursuing suppression, he should plead guilty.
The court has reorganized the petitioner's claims so that they are listed in a logical fashion.
The District Attorney for Delaware County has answered the habeas petition. The District Attorney concedes that the habeas petition was filed in a timely manner and he does not argue that any of the petitioner's claims are unexhausted. In the answer, the District Attorney only identifies two of the petitioner's claims, the claims of ineffective assistance of counsel. However, in the course of addressing the two ineffective assistance claims, the District Attorney does address the other two claims, which underlie the two claims of ineffective assistance.
The petitioner's first claim is a challenge to the trial court's subject matter jurisdiction. The petitioner contends that the state court did not have jurisdiction over his prosecution because the narcotics he was transporting were found by United States Customs agents while the petitioner was being detained and searched at the Philadelphia airport upon his arrival from the island of St. Maarten. He maintains that he never entered Delaware County with narcotics and that, therefore, the state court lacked jurisdiction over his prosecution.
Although the petitioner does not so state explicitly, it appears that he believes only this court had jurisdiction over his prosecution.
Whether the trial court had subject matter jurisdiction over the narcotics charge brought against the petitioner is a matter of state law. This is a fundamental defect in the petitioner's claim because habeas relief can only be granted for violations of the constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a). Habeas relief cannot be granted for violations of state law. See Estelle v. McGuire, 502 U.S. 62, 67 (1991). Thus, the petitioner's first claim is not a cognizable basis for granting habeas relief.
The petitioner's second claim is that trial counsel was ineffective for failing to challenge the subject matter jurisdiction of the trial court. Every criminal defendant has a Sixth Amendment right to the effective assistance of counsel.See Strickland v. Washington, 466 US. 668, 686 (1984) (citingMcMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)). Thus, the petitioner's second claim is cognizable. However, the petitioner is arguing that his trial counsel was ineffective for failing to raise a state law claim. As will be seen, because the state courts have resolved the underlying state law claim against the petitioner, this court cannot grant him habeas relief based on his related ineffective assistance claim.
The petitioner raised his second claim in the state courts in a petition filed under Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa. C.S.A. § 9541 et seq. When the trial court considered the second claim, it decided the question of its subject matter jurisdiction and the court concluded that it did have jurisdiction over the prosecution of the petitioner's case.See Commonwealth v. Ehrlich, No. 252-99, slip op. at 7 (Del. Co. April 30, 2002). Thereafter, when the petitioner appealed, the Superior Court of Pennsylvania adopted the trial court's resolution of this issue. See Commonwealth v. Ehrlich, No. 244 EDA 2002, slip op. at 2 (Pa.Super. Oct. 21, 2002). Thus, the state courts have resolved the underlying state law claim against the petitioner.
The Supreme Court has held that federal courts exercising habeas jurisdiction are not free to reexamine the state courts' determinations of state law issues. See Estelle v. McGuire, 502 U.S. at 67-68. Thus, this court is required to accept that state law provided the trial court with jurisdiction over the petitioner's criminal prosecution. See id. This means that the petitioner's second claim must be understood by this court as alleging that trial counsel was ineffective for failing to raise a challenge to the trial court's jurisdiction that lacked merit. However, trial counsel cannot be ineffective for failing to raise a meritless claim. Moore v. Deputy Commissioner, SCI-Huntingdon, 946 F.2d 236, 245 (3d Cir. 1991). For these reasons, the petitioner cannot prevail based on his second claim.
The petitioner's third claim is that the evidence used against him was obtained by way of an unconstitutional search and seizure. As noted previously, the petitioner arrived at the Philadelphia airport from the island of St. Maarten. Prior to his arrival, law enforcement authorities had him under investigation and United States Customs officials expected him to arrive with controlled substances. When the petitioner arrived, he was detained by customs officials. The petitioner gave consent for the customs officials to open a sealed package he had carried with him onto the airplane; the package contained two bottles. Customs officials opened the sealed package and examined the two bottles. They found that the bottles made a strange sound when shaken. For this reason, custom officials opened the sealed bottles and field-tested the contents; they did so without the petitioner's consent. The test results indicated that the bottles contained cocaine in liquid form. This evidence was seized and was the basis for prosecuting the petitioner. The petitioner contends that customs officials violated the Fourth Amendment when they opened the bottles without his consent and without first obtaining a warrant.
The factual information contained in this paragraph is derived from the trial court's opinion. See Commonwealth v. Ehrlich, No. 252-99, slip op. at 1-2 (Del. Co. April 30, 2002).
The Fourth Amendment provides that all persons have the right to be free from unreasonable searches and seizures and that warrants shall not issue except upon probable cause. See U.S. Const. amend. IV. However, in this case, the petitioner was searched by customs officials as he was attempting to enter the United States after completing an international flight. For this reason, the petitioner must be considered as being at the border during the search. See United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).
It is well-established that persons have a lowered expectation of privacy at the border and that the balance between the interests of the government and the privacy of the individual is struck more favorably to the government at the border. United States v. Montoya de Hernandez, 473 U.S. at 539-40 (citingCarroll v. United States, 267 U.S. 132, 154 (1925)). For this reason:
Border searches . . ., from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from the outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself.United States v. Ramsey, 431 U.S. 606, 619 (1977). Indeed, the Supreme Court has observed that: "Routine searches of the persons and effects of entrants [to the United States] are not subject to any requirement of reasonable suspicion, probable cause or warrant. . . ." United States v. Montoya de Hernandez, 473 U.S. at 538 (footnote omitted). The principle that border searches are permissible, without a warrant, without probable cause, indeed, without any degree of suspicion at all, has been recently reaffirmed by the Supreme Court. See United States v. Flores-Montano, 124 S.Ct. 1582, 1585-87 (2004).
In light of the Supreme Court's long-standing border search precedent, this court is constrained to find that the decision of customs officials to open the bottles the petitioner was carrying with him and field-test them for narcotics was permissible under the Fourth Amendment. That is, customs officials were authorized to open the bottles and field-test the bottles without any suspicion that they might contain narcotics or other contraband.See United States v. Flores-Montano, 124 S.Ct. at 1585-87;United States v. Montoya de Hernandez, 473 U.S. at 538. Thus, the petitioner's third claims lacks merit.
The petitioner's fourth claim is that trial counsel was ineffective for advising the petitioner that a suppression hearing would be fruitless and that, instead of pursuing suppression, he should plead guilty. The court has already explained why the petitioner's Fourth Amendment rights were not violated by the customs officials' search of the bottles the petitioner brought into the United States. Indeed, it is clear that, in light of the relevant Supreme Court precedent, a suppression hearing would not have yielded suppression of the evidence. This is the precise advice trial counsel had provided to the petitioner. Therefore, there is simply no basis to find that trial counsel was ineffective for giving this advice and the petitioner's fourth claim lacks merit.
The petitioner maintains that the only reason the advice to plead guilty was flawed was because trial counsel erred in determining that seeking suppression would be futile. Thus, there is no need to consider whether counsel's advice to plead guilty was flawed for some other reason.
The court must also determine whether to recommend granting a certificate of appealability ("COA") with respect to the petitioner's claims. The court adjudicated three of the petitioner's four claims on their merits. For those claims, a COA can issue if jurists of reason could find the court's determination of the merits of the claims was debatable or wrong.See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
On the other hand, the court resolved the first claim on the procedural ground that it was not cognizable. A COA can issue with respect to this claim if: "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [if] jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. In Slack, the Supreme Court went on to explain that:
Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.Id. Further, the Supreme Court indicated that, since the petitioner must make showings with respect to both the procedural issue and the underlying, constitutional issue, a court may resolve the COA question if either showing is lacking.Id. at 484-85.
With respect to the first claim, it is clear that the claim is based on state law and that state law claims are not cognizable bases to grant habeas corpus relief. Thus, the court finds that jurists of reason would not debate the court's adjudication of the claim. The second claim, which alleges ineffective assistance based on trial counsel's failure to pursue the first claim, was found to lack merit because the court is unable to reexamine the underlying state law claim. The court's finding that it is unable to reexamine the underlying state law claim is based on well-established Supreme Court precedent. Therefore, the court is of the view that reasonable jurists would not debate the court's adjudication of the second claim. The third claim, which alleges a Fourth Amendment violation, was found to lack merit based on well-established Supreme Court precedent. Therefore, the court is of the view that reasonable jurists would not debate the court's adjudication of the third claim. Finally, the court found that the fourth claim lacked merit because counsel gave the petitioner sound advice concerning the likelihood that his Fourth Amendment claim lacked merit. The court is not aware of any precedent which permits finding that trial counsel is ineffective when he provides sound advice. Therefore, the court is of the view that reasonable jurists would not debate the court's adjudication of the fourth claim either.
The court's recommendation follows.
RECOMMENDATION
AND NOW, this day of August, 2004, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that the petition for a writ of habeas corpus be DENIED. It is also RECOMMENDED that a certificate of appealability not be granted.
ORDER
AND NOW, this day of, 2004, after careful and independent consideration of the petition for a writ of habeas corpus, the answer thereto and after review of the Report and Recommendation of Diane M. Welsh, United States Magistrate Judge, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is DENIED;
3. A certificate of appealability is not granted.