Opinion
Civil Action No. 04-970.
May 28, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution at Greene County, in Waynesburg, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On July 13, 1990, after a three-day jury trial before the Honorable Wilson Bucher of the Lancaster County Court of Common Pleas, petitioner was convicted of robbery, reckless endangerment of another person, theft, and possession of prohibited offensive weapons. On May 3, 1991, petitioner was sentenced to twelve and one half to twenty-five years imprisonment for these offenses.
Petitioner directly appealed his sentence to the Superior Court of Pennsylvania. On June 3, 1992, the court found that the identification procedure used at the police station was unduly suggestive. Thus, the court reversed petitioner's conviction and remanded his case for a new trial. Commonwealth v. Weldon W. Fells, No. 1784 PHL 1991 (Pa.Super. 6/3/92) (mem).
Petitioner had a second jury trial before the Honorable Louis J. Farina of the Lancaster County Court of Common Pleas. The jury convicted petitioner of all of the above offenses, and on July 8, 1993, he was sentenced to ten to twenty years imprisonment.
Petitioner appealed to the Superior Court, raising the following claims:
(1) The trial court erred in allowing the government to impeach petitioner's credibility by introducing evidence which associated petitioner with his codefendant when there was no evidence that his co-defendant was an accomplice;
(2) The trial court violated the best evidence rule in allowing a photocopy of petitioner's address book into evidence;
(3) The trial court erred in denying petitioner's Motion for Continuance;
(4) The trial court erred in refusing to grant a mistrial after a witness for the government alluded to petitioner's prior incarceration; and
(5) The trial court erred in failing to merge petitioner's convictions for robbery and prohibited offensive weapons.
On March 21, 1994, petitioner's sentence was affirmed and his appeal denied. Commonwealth v. Weldon W. Fells, No. 2662 PHL 1993 (Pa.Super. 3/21/94) (mem).
Petitioner filed for an Allowance of Appeal to the Pennsylvania Supreme Court, which denied him relief on May 26, 1995.Commonwealth v. Weldon W. Fells, No. 0168 M.D. Alloc. Dkt. 1994 (Pa. 5/26/95).
Petitioner then filed a petition under the Post Conviction Relief Act (PCRA). Counsel was appointed, and subsequently moved to file an amended petition. Counsel's motion was granted, and petitioner filed his revised petition on February 28, 1997, raising the following issue: Petitioner was denied his right to a fair and impartial jury because the trial judges addressed members of the jury pool upon their reporting for duty.
Petitioner's PCRA petition was dismissed without a hearing on May 4, 1998, and petitioner failed to make a timely appeal.
On June 23, 1998, petitioner filed a Petition for Writ of Habeas Corpus, raising the following claims:
Petitioner contends that he filed his Petition for Writ of Habeas Corpus on July 7, 1998, but the difference in date is of no matter here.
(1) The evidence seized from the car and allegedly used in the robbery was illegally obtained, used for improper impeachment of petitioner, and violated the best evidence rule;
(2) Petitioner's conviction amounts to a Brady violation in that the government unconstitutionally failed to disclose evidence to petitioner, and the trial court denied petitioner's request for a continuance;
(3) Petitioner was prejudiced when a witness for the government alluded to the fact that petitioner had previously been incarcerated;
(4) The trial court erred in failing to merge petitioner's sentences for robbery and prohibited offensive weapons; and
(5) The jury was unconstitutionally selected and impaneled.
On September 15, 1998, the District Court dismissed petitioner's Petition for Writ of Habeas Corpus for failure to exhaust state court remedies. The Third Circuit Court of Appeals denied petitioner's request for a Certificate of Appealability on March 26, 1999.
Petitioner contends that his Petition for Writ of Habeas Corpus was dismissed on September 16, 1998, but the difference in date is of no matter here.
On October 29, 1999, petitioner filed a second petition under the PCRA and new counsel was appointed. The court permitted counsel to withdraw his representation under Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). On August 8, 2000, the petition was dismissed without a hearing.
Petitioner then appealed to the Superior Court, which vacated the trial court's order for failure to explain the reasoning behind the dismissal. Commonwealth v. Weldon W. Fells, 1693 MDA 2000 (Pa.Super. 8/28/01) (mem).
On September 21, 2001, the trial court issued an opinion addressing the dismissal of petitioner's second PCRA petition, and on May 17, 2002, the Superior Court affirmed. Commonwealth v. Weldon W. Fells, 1693 MDA 2000 (Pa.Super. 5/17/02) (mem). The Pennsylvania Supreme Court denied a Petition for Allowance of Appeal on November 6, 2002. Commonwealth v. Weldon W. Fells, No. 519 M.D. Alloc. Dkt. 2002 (Pa. 11/6/02).
On December 13, 2002, petitioner filed his second Petition for Writ of Habeas Corpus. The District Court dismissed the petition without prejudice on January 13, 2003, ordering petitioner to refile within thirty days. Petitioner failed to do so. On July 18, 2003, the court issued a second order requiring petitioner to refile within thirty days.
Petitioner did not refile his petition, but rather appealed to the Third Circuit. The Court of Appeals dismissed the appeal on February 5, 2004 for lack of jurisdiction.
Petitioner executed the instant Petition for Writ of Habeas Corpus on February 18, 2004. The petition was docketed February 26, 2004, and sets forth the following claims:
(1) Petitioner's conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure;
(2) Petitioner's conviction was obtained by the unconstitutional failure of the prosecution to disclose evidence;
(3) A witness for the government unfairly prejudiced the jury by referring to the fact that the petitioner had previously been incarcerated;
(4) Petitioner's sentences for robbery and prohibited offensive weapons should have merged; and
(5) Petitioner's conviction was obtained by an unconstitutionally selected and impaneled jury.
Respondent retorts that petitioner's Petition for Writ of Habeas Corpus is untimely, and in the alternative, that petitioner's claims are procedurally defaulted.
II. TIMELINESS
Notwithstanding petitioner's allegations of substantive grounds for relief, one procedural obstacle precludes federal review of those claims — timeliness. Under the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), enacted April 24, 1996:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.28 U.S.C. § 2244(d)(1) (1996). If direct review of a criminal conviction ended prior to the statute's effective date, then under Third Circuit precedent, a prisoner has a one-year grace period subsequent to the effective date to commence a habeas action. Burns v. Morton, 134 F.3d 109, 111 (3rd Cir. 1998).
The AEDPA sets forth three other potential starting points for the running of the statute of limitations, as follows:
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevent from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
The statute, however, creates a tolling exception, which notes that "[t]he time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). A "properly filed application" is "one submitted according to the state's procedural requirements, such as the rules governing the time and place of filing." Lovasz v. Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998). If a petitioner files an out-of-time application and the state court dismisses it as time-barred, then it is not deemed to be a "properly filed application" for tolling purposes. Merritt v. Blaine, 326 F.3d 157, 165-66 (3rd Cir. 2003).
In the case at bar, the Pennsylvania Supreme Court denied the Petition for Allowance of Appeal on May 26, 1995. Petitioner's time for seeking direct review ended three months later, on August 25, 1995. Because direct review ended prior to the AEDPA's effective date, petitioner had until April 24, 1997 to file a Petition for Writ of Habeas Corpus.
On October 27, 1995, petitioner filed his first PCRA petition, which was not dismissed until May 4, 1998. As a result the statute was tolled, and petitioner had until March of 1999 to file a Petition for Writ of Habeas Corpus. Thus, petitioner's June 23, 1998 Habeas Corpus petition was timely filed.
However, the statute was not tolled again, and thus petitioner had only until March of 1999 to file any and all Petitions for Writ of Habeas Corpus. Petitioner did not file the instant petition until February 26, 2004, almost five years after the statute had run.
Having thus failed to comply with the statute, the petition must be dismissed unless it is found to "relate back" to petitioner's original June 23, 1998 petition.
In Williams v. Vaughn, 3 F. Supp.2d 567, 578 (E.D. Pa. 1998), the court held that a second petition for Writ of Habeas Corpus filed after the statute has run may be considered timely if it relates back to the original petition and if the original petition had been dismissed without prejudice.
In the case at bar, the instant petition relates back to petitioner's original petition in that it raises the same five claims. As well, petitioner's original petition was dismissed by the District Court without prejudice so as to allow petitioner to exhaust his claims in state court. As a result, this court finds that the petition may not be dismissed for untimeliness.
III. PROCEDURAL DEFAULT
Respondent's second challenge to the Petition for Writ of Habeas Corpus asserts that petitioner's claims are barred by procedural default. Specifically, respondent contends that petitioner failed to file a direct appeal after his first PCRA petition was dismissed and that petitioner failed to raise all of his current claims in state court under his second PCRA petition. Maintaining that petitioner has not exhausted his state court remedies and could not do so now, respondent urges the court to dismiss the petition in its entirety.
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c) (1994); Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059, reh'g denied, 490 U.S. 1076, 109 S.Ct. 2091 (1989). In other words, a petitioner must invoke "one complete round of the state's established appellate review process," in order to exhaust his remedies. O'Sullivan, 526 U.S. at 845. A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demand, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3rd Cir. 1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise they risk depriving the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3rd Cir. 1993).
However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, reh'g denied, 501 U.S. 1277, 112 S.Ct. 27 (1991); McCandless v. Vaughn, 172 F.3d 255, 260 (3rd Cir. 1999). The procedural default barrier precludes federal courts from reviewing a state petitioner's federal claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 729. "In the context of direct review of a state court judgment, [this] doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment. Id. "In the absence of [the procedural default doctrine] in federal habeas, habeas petitioners would be able to avoid the exhaustion doctrine by defaulting their federal claims in state court." Id., at 732.
As noted above, respondent contends that petitioner's failure to both appeal his first PCRA dismissal and raise all of his current claims in his second PCRA petition constitutes a failure to exhaust, which in turn, results in procedural default of his claims. We agree that petitioner has failed to carry his burden. The Post Conviction Relief Act's jurisdictional statute of limitations and "Previous Litigation and Waiver" provision foreclose state review of petitioner's claims of error. See 42 Pa.C.S.A. §§ 9544 and 9545. Thus, petitioner is not entitled to federal review unless he can show his default should be excused. Such excuse is allowed only where the petitioner can show "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims would result in a fundamental miscarriage of justice."Coleman, 501 U.S. at 750. Here, petitioner has neither alleged cause and prejudice, nor shown that the court's failure to consider his claims would result in a miscarriage of justice. Consequently, the petition is denied without consideration on the merits.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ____ day of May, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.