Opinion
Civil Action No. 05-2663.
November 22, 2005
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 who is incarcerated at the Mahanoy State Correctional Institution, at Frackville, Pennsylvania. For the reasons that follow, I recommend that the petition be denied. FACTS AND PROCEDURAL HISTORY :
On October 14, 2005, Farrar wrote the court asking for additional time to file a Traverse, explaining that he did not expect to have access to the law library until October 28. The court has considered Farrar's Traverse in preparing this Report.
In the early morning of May 19, 1992, Sherrie Williams awoke to a noise in her home on Pulaski Street in Philadelphia. She found a man with a BB gun descending from the third floor of her home, at which point, she began screaming. (N.T. 10/29/97, 104-05). Because the man was wearing a ski mask, she could not identify him. He handcuffed her face down on her bed and proceeded to rape her. (N.T. 10/29/97, 105-113). Thereafter, the intruder went downstairs to get money the victim told him was in her purse. (N.T. 10/29/97, 119). At that time, Ms. Williams jumped from a second floor window to the ground and began running. (N.T. 10/29//97, 120). Ms. Williams found her next door neighbor, Roy Farrar, on his front porch. Mr. Farrar took Ms. Williams inside, got her some clothes, and called the police. (N.T. 10/29/97, 123).
The victim identified the BB gun during her testimony. She stated that the gun used by the assailant was the gun her father had taken from her son. She could identify it by the shape and name on the side and specifically by "scratches and dashes" on it. (N.T. 10/29/97, 101).
Roy Farrar, the Petitioner's father, and Dakeer Farrar, the Petitioner's twin brother, both testified that they awoke on the night in question to a loud shriek. (N.T. 11/3/97, 143-44, 11/6/97, 11). Dakeer stated that, at the time he heard the shriek, his brother was not in his room on the third floor, so he headed to the kitchen on the first floor to see if he was there. On the way, he ran into his father on the second floor. (N.T. 11/3/97, 145; 11/6/97, 12). He told his father that Royce was not in his room. (N.T. 11/3/97, 147-48). Dakeer found Royce several minutes later in a spare bedroom on the third floor of the house. (N.T. 11/3/97, 150-52).
The Commonwealth presented a very strong case against Royce. Charlotte Word, Ph.D., the Deputy Laboratory Director of Cellmark Diagnostics, testified that the DNA taken from the semen sample on Ms. Williams' nightgown on the night of the incident matched that of Royce Farrar and his identical twin, Dakeer. (N.T. 11/3/97, 93, 128). Specifically, Dr. Word testified that the frequency of finding the nine gene types found in the sample was approximately 1 in 7.8 million in the African-American population. (N.T. 11/3/97, 88). The testimony of Dakeer and Roy Farrar established the whereabouts of Dakeer at the time of the incident, leaving only one DNA match.
On November 7, 1997, after a jury trial before the Honorable Renee Cardwell Hughes, Royce Farrar was convicted of rape and burglary. Judge Hughes sentenced Farrar to an aggregate term of 13-26 years' imprisonment. In his direct appeal, Farrar claimed that the evidence was insufficient to support the rape and burglary convictions. On February 8, 2000, the Superior Court affirmed the judgments of conviction. Commonwealth v. Farrar, 1017 Phila. 1998. On July 25, 2000, the Pennsylvania Supreme Court denied Farrar's petition for allowance of appeal. Commonwealth v. Farrar, 167 E.D. Allocatur Dkt. 2000.
On May 7, 2001, Farrar filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"). After the court appointed counsel, counsel filed an amended petition. On June 2, 2003, the PCRA Court dismissed the petition. On appeal to the Superior Court, Farrar claimed:
1. Appellate counsel was ineffective for failing to challenge trial counsel's failure to present a Rule 600 speedy trial claim;
2. Appellate counsel was ineffective for failing to challenge trial counsel's failure to argue that certain evidence was seized after the search warrant had expired;
3. Appellate counsel was ineffective for failing to argue that the suppression court erred in concluding that the police had permission from Farrar's father to interview him;
4. Appellate counsel was ineffective for failing to argue that Farrar should have been de-certified as an adult;
5. Appellate counsel was ineffective for failing to challenge the court's evidentiary ruling regarding the victim's prior rape;
6. The PCRA Court erred in failing to hold an evidentiary hearing.
On August 23, 2004, the Superior Court affirmed the denial of PCRA relief.
Commonwealth v. Farrar, 1878 EDA 2003. The Pennsylvania Supreme Court denied allocatur on May 11, 2005. Commonwealth v. Farrar, 17 E.D. Allocatur Dkt. 2005.
On June 6, 2005, Farrar filed this petition for habeas corpus, claiming:
1. The PCRA Court erred in determining that a BB gun and handcuff key seized during a search of Farrar's residence were not the product of an illegal search;
2. Appellate counsel was ineffective for failing to properly brief the search and seizure issue;
3. Appellate counsel was ineffective for failing to challenge the suppression court's findings of fact;
4. The suppression court erred in concluding that certain evidence was admissible pursuant to the doctrine of inevitable discovery;
5. The Court of Common Pleas erred in determining that Farrar's inevitable discovery claim was without merit;
6. The PCRA Court erred in failing to address the claims he presented in his pro se petition;
7. The suppression court erred in "sanctifying the questioning of the fifteen year old petitioner," and permitting the admission of the fruits of the interview;
8. All counsel were ineffective for failing to argue that the petitioner's father's consent to question the juvenile was uninformed;
9. The suppression court erred in concluding that the questioning of the petitioner was not a custodial interrogation;
10. All counsel were ineffective for failing to challenge the legality of petitioner's interrogation in light of his inability to knowingly and voluntarily waive his rights regarding self-incrimination;
11. Petitioner was sentenced beyond the statutory maximum based on facts that were not presented to the jury and proven beyond a reasonable doubt. 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. 28 U.S.C. § 2254(b)(1)(A). This requires that the petitioner fairly present his claims to the state courts in order to give the state the "initial opportunity to pass upon and correct" any alleged violation of the petitioner's rights. Picard v. Conner, 404 U.S. 270, 275 (1971) (citing Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). If the petitioner has failed to exhaust his state court remedies with respect to any claim, and is foreclosed from now doing so, the claim is procedurally defaulted. See Teague v. Lane, 489 U.S. 288, 308 (1988) (plurality opinion);Wainwright v. Sykes, 433 U.S. 72 (1976). Similarly, if the petitioner has presented a claim to the state courts, but the state courts refused to address the merits of the claim based on a state procedural rule, the claim is considered procedurally defaulted. Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
In his first claim, Farrar essentially argues that the BB gun and handcuff key seized during a search of his residence were the product of an illegal search. In response, the District Attorney argues that the claim is procedurally defaulted and beyond the scope of habeas corpus review.
Farrar frames the issue in terms of PCRA Court error.
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that where the state has afforded the petitioner an opportunity for a full and fair litigation of his Fourth Amendment claims, a federal court, reviewing a petition of habeas corpus, is precluded from considering these claims. 428 U.S. at 481-82; Jones v. Superintendent of Rahway State Prison, 725 F.2d 40 (3d Cir. 1984). In this case, Farrar challenged the admissibility of the BB gun and handcuff key prior to trial, arguing that Farrar led police to the evidence during an illegal interrogation at his home. (N.T. 4/17/97, 3-10). The court rejected this argument, concluding that Royce Farrar was not subject to a custodial interrogation and the BB gun and handcuff key would have inevitably been discovered during the search conducted pursuant to a valid search warrant. (N.T. 4/21/97, 85-86).
In his PCRA petition, Farrar again argued that the BB gun and key should have been suppressed. This time, like the issue he presents in his habeas petition, he argued that the police had concluded their search, and the gun and key were discovered during a subsequent search conducted without a warrant. The PCRA Court rejected this argument, concluding that the police were in the home pursuant to a valid warrant, "and that search had not concluded when, Farrar by his own statements aided the police in finding that which would have been found pursuant to the warrant." Commonwealth v. Farrar, No. 0640, January Term, 1996, PCRA Court Opinion, 10/10/03 (Hughes, J.), at 4. The Superior Court found the claim waived, noting that "Appellant cites no authority for his principal premise, that a second search warrant was required, but bases his argument solely on related unsupported conclusions." Commonwealth v. Farrar, 1878 EDA 2003, at 3.
Because Farrar had ample opportunity to litigate the admissibility of the BB gun and handcuff key, Stone precludes our consideration of the claim.
In his second claim, which is related to the first, Farrar contends that appellate counsel was ineffective for failing to properly brief the search and seizure issue. As previously mentioned, in the appeal of the denial of PCRA relief, the Superior Court found the claim waived because it was not properly briefed for the court's review. Unfortunately, the ineffectiveness of which Farrar complains is that of counsel in his collateral appeal. Such a claim does not rise to the level of a constitutional violation. See 28 U.S.C. § 2254(i); Pennsylvania v. Finley, 481 U.S. 551, 555 (1986). Therefore, he is not entitled to habeas relief with respect to this claim.
Farrar next claims that counsel was ineffective for failing to challenge the suppression court's findings of fact. According to Farrar, the suppression court made contradictory findings of fact by concluding that he had been subject to an interrogation, yetMiranda warnings were not required. The District Attorney argues that the claim is procedurally defaulted.
As previously discussed, a claim is procedurally defaulted if the petitioner failed to exhaust his state court remedies and is now barred from presenting his claim to the state courts. See Teague, supra; Wainwright, supra. With respect to this claim, Farrar has failed to fairly present this claim to the state courts. Although he challenged the custodial nature of the at-home interrogation in his pro se PCRA petition, see pro se PCRA petition, at ¶¶ C, D, May 3, 2001, this claim was not presented in his counseled, amended petition and not preserved in the appeal of the denial of PCRA relief. Moreover, the claim presented in the habeas petition focuses on the allegedly contradictory findings of fact made by the suppression court. Such a claim was never presented to the state courts. Thus, it is unexhausted.
At this point, Farrar has no avenue through which to present the claim to the state courts. Any attempt on his part to file a second PCRA petition would fail. See 42 Pa.C.S.A. § 9545(b) (requiring the filing of a PCRA petition within one year of the date the judgment becomes final); § 9544(b) (claim not presented at trial or on earlier appeal is waived). Thus the claim is procedurally defaulted. See Teague, supra; Wainwright, supra.
The federal court may address a defaulted claim only if the petitioner can establish cause for the default and prejudice or establish that a failure to consider the claim will result in a fundamental miscarriage of justice. Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996). Here, Farrar was aware of the facts underlying the claim at the suppression hearing. Yet, he failed to present the claim on direct appeal or in his collateral appeal. Any attempt on his part to argue the ineffectiveness of his PCRA counsel for failing to present a layered claim of ineffectiveness would fail because only ineffective assistance of counsel of a constitutional magnitude can constitute cause to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). Since the ineffectiveness of PCRA counsel is not a constitutional issue, see Finley, supra; 28 U.S.C. § 2254(i), such a claim would fail to provide cause for the default.
Similarly, Farrar has failed to supplement his claim with any evidence of factual innocence, as required to establish that a failure to consider the claim will result in a fundamental miscarriage of justice. See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986). In fact, as was discussed previously in this Report, the DNA evidence establishes that either the petitioner or his twin brother committed the rape. Since Roy Farrar, Royce's father, testified that Royce's twin was with him shortly after hearing the victim's scream, Royce would be hard-pressed to establish his factual innocence. Thus, the claim regarding the allegedly contradictory findings of fact by the suppression court remains defaulted.
Farrar's fourth and fifth claims involve the state court's determination that the BB gun and handcuff key fell under the inevitable discovery doctrine. Like Farrar's first claim, he is essentially challenging the admissibility of the evidence. As previously discussed, the Supreme Court's decision in Stone v. Powell, supra bars our consideration of these Fourth Amendment claims.See Ferguson v. Jones, 905 F.2d 211 (8th Cir. 1990) (the holding in Stone applies to Fourth Amendment determinations of inevitable discovery); Wicker v. McCotter, 783 F.2d 487 (5th Cir. 1986).
We believe the claims are virtually identical. In the fourth claim, Farrar challenges the suppression court's determination that the evidence was admissible under the inevitable discovery doctrine, and in the fifth he claims that the Court of Common Pleas erred in rejecting his argument that the inevitable discovery doctrine did not apply.
In his sixth claim, Farrar contends that the PCRA Court erred in failing to address all the claims he presented in his pro se PCRA petition. Farrar presented five claims in his pro se PCRA petition which appointed counsel did not believe were meritorious. Counsel, therefore, did not pursue these claims. In its opinion, the PCRA Court addressed only the five claims briefed by counsel.
The claims presented in the pro se PCRA petition, but not pursued by counsel all involved layered claims of ineffective assistance of counsel. Farrar claimed direct appellate counsel was ineffective for failing to challenge trial counsel's failure to: file a timely appeal of the verdict and all pretrial rulings; seek recusal or a change of venue because the petitioner knew the trial judge's daughter; argue at sentencing that the mental health evaluations provided conflicting conclusions; argue that the petitioner was prejudiced when he was conspicuously guarded at the crime scene by several police officers; and argue that the petitioner was prejudiced when the court required the petitioner to leave because his presence was upsetting the victim.
We first note that Farrar has never properly presented this claim to the state courts. Therefore, it is unexhausted and procedurally defaulted. See supra, at 5, 7-8. Moreover, state law provides that when a petitioner is appointed counsel in the state court, the court is not required to take the petitioner's pro se petitions into consideration. Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999). The rationale for this protocol is to allow counsel the most efficient avenue to represent his client, i.e. for there to be no contradiction between counsel's and petitioner's briefs and to maintain clarity in counsel's communications with the court.Commonwealth v. Ellis, 626 A.2d 1137, 1138-39 (1993). Therefore, the state court is free to disregard the claims made in the petitioner's pro se briefs.
This state court procedure is consistent with United States Supreme Court precedent, as well. The Supreme Court has held that counsel may exercise his professional judgment concerning what claims to pursue on appeal. See Jones v. Barnes, 463 U.S. 745, 750-54 (1983) (decision of what issues to raise on appeal is charged to counsel; counsel need not assert every non-frivolous issue to guard against subsequent claim of ineffectiveness). "Thus, as a general matter, it is not inappropriate for counsel, after consultation with his client, to override the wishes of his client when exercising professional judgment" regarding which issues to pursue on appeal. Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996).
Construed as an ineffective assistance of PCRA counsel claim, the assertion is not cognizable in habeas corpus. See Finley, supra; 28 U.S.C. § 2254(i).
Farrar next complains that the Suppression Court erred in "sanctifying the questioning of the fifteen year old petitioner," and erred in permitting the admission of the fruits of the interview. Farrar never presented this claim to the Superior Court. Thus, it is unexhausted and procedurally defaulted. See supra, at 6. As cause for his procedural default, Farrar claims that counsel was ineffective for failing to present this issue in his prior appeals. As previously noted, the ineffectiveness of PCRA counsel cannot provide cause to excuse a procedural default.See Carpenter, supra. Additionally, in order to provide cause to excuse a default, the claim of ineffective counsel must, itself, be exhausted. See Carpenter, at 452. Here, Farrar has never properly presented either the underlying court error claim, nor an allegation of ineffective counsel based on the underlying claim. Thus, Farrar has failed to provide any basis to excuse his default.
To the extent this claim could be considered an attack on Roy Farrar's consent to interview Royce, the issue will be addressed in the discussion of the next claim.
In his eighth claim, Farrar asserts that all prior counsel were ineffective for failing to argue that his father's consent to question the petitioner was uninformed. In his PCRA appeal, Farrar challenged direct appellate counsel's failure to challenge his father's consent to the interview. The Superior Court found that the Suppression Court made a credibility determination based on the testimony it heard. "The suppression court, acting as factfinder, bears the sole responsibility for making such determination, and we, as an appellate court, will not substitute our judgment for the factfinder's." Commonwealth v. Farrar, 1878 EDA 2003, at 4.
During the suppression hearing Lieutenant Thomas McDevitt testified that during the search of the Farrar house, he asked Roy Farrar, Royce's father, if he could interview both Royce and his twin brother, Dakeer. (N.T. 4/17/97, 32). Lt. McDevitt stated that Roy Farrar gave his permission for the police to question both boys. (N.T. 4/17/93, 32). Roy Farrar, however, stated during the suppression hearing that "[he didn't] recall ever giving permission for an interview with [his] sons." (N.T. 4/18/97, 27). Based on the testimony, the suppression court found that Roy Farrar had given permission for the police to interview both of his sons. (N.T. 4/21/97, 74, 83). Such a credibility finding is not subject to review in the federal habeas forum. Marshall v. Lonberger, 459 U.S. 422 (1983) (the federal habeas court has "no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them").
Farrar next claims that the suppression court erred in concluding that his (Royce's) questioning was not a custodial interrogation. As previously discussed, prior to trial, Farrar challenged the admissibility of the BB gun and handcuff key, arguing that he disclosed their location during an illegal interrogation at his home. See supra, at 5. When Farrar challenged the admissibility of the BB gun and handcuff key in his PCRA petition, the factual basis for the claim involved the alleged expiration of the warrant. See supra, at 6. (Farrar argued that the police had concluded their search at the time of his interview and then conducted a separate search based on the information they obtained during his interview). He now argues, as he did in the pretrial suppression hearing, that he was subject to a custodial interrogation without receiving Miranda warnings.
Although this claim was presented pretrial, Farrar never pursued it after trial. Thus, the claim is unexhausted and procedurally defaulted. As previously discussed, the federal court will not consider a defaulted claim absent a showing of cause and prejudice or a fundamental miscarriage of justice. Farrar admits that the claim is not exhausted, but argues that his PCRA counsel was ineffective for failing to include it in the amended PCRA petition. Such an assertion does not provide cause to excuse the default. See Carpenter, at 451; Finley, supra. Any claim of ineffectiveness of direct appellate counsel to provide cause to excuse the default would have to, itself, be exhausted in order to constitute cause. See Carpenter, at 452, supra. Thus, we decline to address this defaulted claim.
In a related claim, Farrar next asserts that all prior counsel were ineffective for failing to argue that Farrar did not knowingly and voluntarily waive his rights against self incrimination. Like the prior claim, Farrar has never presented such a claim in the appeal of his conviction. For the reasons previously stated, Farrar's assertion that his PCRA counsel was ineffective for failing to present this claim, cannot provide cause to excuse his default. See Carpenter, at 451; Finley, supra; 28 U.S.C. § 2254(i).
Finally, Farrar presents a Blakely claim. In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), the Supreme Court held that other than a prior conviction, any sentencing enhancement must be based upon facts found by a jury beyond a reasonable doubt. 124 S.Ct. at 2537. Farrar contends that the trial court sentenced him based on factors not presented to the jury and proven beyond a reasonable doubt.
Farrar is not entitled to relief on this claim. The federal courts have concluded that the holding of Blakely does not apply retroactively to cases on collateral review that became final prior to the decision. See United States v. Saikaly, 424 F.3d 514, 518 (6th Cir. 2005); United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005); In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004); Carmona v. United States, 390 F.3d 200 (2nd Cir. 2004) (Second Circuit refused to applyBlakely absent pronouncement by Supreme Court that it applied retroactively to cases on collateral appeal. See also, Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519 (2004) (noting that the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), upon which Blakely is based, does not apply retroactively to cases on collateral review); Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005) (concluding that the decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), extending Blakely to the Sentencing Guidelines, did not apply retroactively to cases on collateral review).
Because we find that Blakely does not apply to Farrar's case, we decline to address the fact that Farrar has failed to present the claim to the state courts, resulting in its default.
Here, Farrar's conviction became final in October, 2000, when, on direct appeal, the time expired for him to seek certiorari in the United States Supreme Court. Thus, Blakely, which was decided in 2004, does not apply to this collateral appeal.
For the above stated reasons, I make the following:
RECOMMENDATION
AND NOW, this 22ND day of November, 2005, 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, 2005, 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.