Opinion
No. 05-0344.
June 20, 2005
REPORT AND RECOMMENDATION
Currently pending before the Court is a Petition for Writ of Habeas Corpus, filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated in the State Correctional Institution at Coal Township, Pennsylvania. For the reasons which follow, the Court recommends that the petition be denied.
I. PROCEDURAL HISTORY
Following a jury trial presided over by the Honorable Jack Anthony Panella of the Northampton County Court of Common Pleas, petitioner was convicted, on February 12, 1999, of rape, involuntary deviate sexual intercourse, indecent assault, unlawful restraint, and terroristic threats. Petitioner was charged with attacking victim Pactricia Donchez in her garage as she came home, binding her hands and mouth with electrical tape, raping her and attempting to force her into the trunk of her car, all before fleeing the scene. Commonwealth v. Fenstermacher, Crim A. No. 262-1998 (1999). On March 11, 1999, the trial court sentenced petitioner to an aggregate sentence of twenty-two and a half to forty-five years imprisonment. Petitioner then filed a post-sentence motion claiming that: (1) the court provided insufficient reasons for departing above the sentencing guidelines; (2) he was denied a full and fair allocution as provided in Pa. R. Crim. P. 1405; and (3) the unlawful restraint charge should have merged with the sexual assault charges. Judge Panella dismissed each of these claims as meritless. Id. On October 10, 2000 the Pennsylvania Superior Court affirmed Petitioner's sentence. Commonwealth v. Fenstermacher, 767 A.2d 1107 (Pa.Super. 2000) (table).
Subsequently, petitioner filed a pro se petition for state collateral review pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541 et seq., alleging the ineffectiveness of trial counsel for failing to challenge affidavits in support of a search warrant by requesting a Frank's hearing. The court denied and dismissed the petition.Commonwealth v. Fenstermacher, Crim. A. No. No. 262-1998 (2003). Petitioner then filed a pro se appeal to the Pennsylvania Superior Court. On May 20, 2004, the Superior Court affirmed the denial of post-conviction relief. Commonwealth v. Fenstermacher, 855 A.2d 130 (Pa.Super. 2004) (table). Petitioner thereafter sought allowance of appeal from the Pennsylvania Supreme Court. While that petition was pending, he requested leave to amend based on the new Supreme Court ruling inBlakely v. Washington. On January 11, 2005, however, the Pennsylvania Supreme Court concurrently denied both leave to amend and allowance of appeal. Commonwealth v. Fenstermacher, 867 A.2d 522 (Pa. 2005) (table).
On January 20, 2005, petitioner filed the instant petition for writ of habeas corpus, setting forth the following claims:
1. All prior counsel were constitutionally ineffective for failing to challenge false statements in affidavits used to secure search warrants.
2. Trial counsel was constitutionally ineffective for failing to object to, and request a mistrial, when the prosecutor commented upon petitioner's post-arrest silence before the jury.
3. Petitioner was denied his Sixth Amendment rights and otherwise improperly sentenced when the judge increased his sentence beyond the range of the sentencing guidelines.
II. STANDARD OF REVIEW
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
An application for a writ of habeas corpus on behalf of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless that adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) 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). The United States Supreme Court interpreted this statute and more clearly defined the two-part standard of review in Williams v. Taylor, 529 U.S. 362, 404-405, 120 S. Ct. 1495 (2000).
Under the first prong of the review, a state court decision is "contrary to" the "clearly established federal law, determined by the Supreme Court of the United States," (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. at 405.
Pursuant to the second prong, a state court decision can involve an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context should apply."Id. at 407-408. Under this clause, however, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly-established federal law erroneously or incorrectly, rather, that application must also be unreasonable."Id. at 410.
III. FAILURE TO EXHAUST
Respondents' primary defense is that petitioner's sentencing claim is not exhausted, thereby making his petition a "mixed petition" which should be dismissed without prejudice. Upon review, this Court disagrees.
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 available remedies if he has a right, under state law, to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056, 1059 (1989). A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demands, 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 (3d Cir. 1982). In the case of a mixed petition, i.e. one containing both exhausted and unexhausted claims, the federal courts should stay all of the claims pending exhaustion in state court, and dismiss any claims that remain unexhausted after return to federal court. Crews v. Horn, 360 F.3d 146, 153-154 (3d Cir. 2004).
Respondents contend that petitioner's sentencing claim was never fairly presented to the state courts, thereby making it an unexhausted claim. This argument, however, fails to clearly distinguish the separate allegations of petitioner's sentencing claim. Petitioner first asserts that the reasons supplied by the sentencing court for its upward departure on petitioner's sentence were legally inadequate — a claim that was clearly litigated and ruled upon by the Pennsylvania Superior Court during direct appeal. As such, we deem the claim fully exhausted and ripe for consideration on its merits.
To the extent petitioner alleges that his sentence was illegal under the mandates of Blakely v. Washington, 124 S. Ct. 2531 (2004), however, the claim is unexhausted. The United States Supreme Court handed down the Blakely ruling while petitioner's appeal from the denial of his PCRA petition was pending before the state Supreme Court. Petitioner sought to amend his request of allowance of appeal to include his Blakely claim, but the state Supreme Court denied his requested leave. Instead of attempting to file a new PCRA petition raising hisBlakely challenge before the state courts, petitioner opted to file the instant petition. In doing so, he failed to give the state courts an opportunity to consider and rule upon the issue. Accordingly, the claim remains unexhausted.
In Blakely, the Supreme Court held that "the `statutory maximum' . . . is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant" 124 S. Ct. at 2537 (emphasis in original).
While this Court would normally defer ruling on a petition containing an unexhausted claim, we also have the option to dismiss an unexhausted claim outright if it is pellucidly without merit. 28 U.S.C. § 2254(b)(2). Such is the case here. Petitioner's sentence became final on November 10, 2000, thirty days after the Superior Court denied his direct appeal and he failed to petition to the Pennsylvania Supreme Court. The United States Supreme Court, however, did not issue Blakely until June 24, 2004, while petitioner was already pursuing his collateral appeal. Although the Supreme Court has yet to explicitly rule on this issue, each circuit to confront the question — as well as several district courts within the Third Circuit — have found Blakely retroactively inapplicable for defendants whose convictions became final prior to its issuance.See, e.g., United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005), Varela v. U.S., 400 F.3d 864, 867 (11th Cir. 2005), Cooper-Smith v. Palmateer, 397 F.3d 1236, 1246 (9th Cir. 2005), Morgan v. Beck, Civ. A. No 04-6963, 2004 WL 2165919, at *1 n. 1 (4th Cir. 2004) (unpublished opinion), United States v. Charles, Civ. A. No. 03-72584, 2005 WL 823869, at *1 (E.D. Pa. 2005), United States v. Wenzel, 359 F. Supp. 2d 403, 414-15 (W.D. Pa. 2005), Chen v. Apker, Civ. A. No. 05-0385, 2005 WL 1154829, at * 4 (M.D. Pa. 2005). Thus, we dismiss this portion outright, and now proceed to an evaluation of the merits of petitioner's exhausted claims.
Judgment becomes final at the conclusion of direct review or the expiration of time for filing such review, including the time for filing a petition for writ of certiorari in the United States Supreme Court. Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999). Pennsylvania Rule of Appellate Procedure 1113(a) grants a defendant thirty days in which to file a petition for allowance of appeal from an order of the Superior Court.
The possibility remains that this claim is also procedurally defaulted. The procedural default barrier, in the context of habeas corpus, precludes federal courts from reviewing a state petitioner's habeas 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 v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553 (1991). Procedural default may occur "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be requred to present his claims in order to meet the exhaustion requirements would now find the claims procedurally barred . . ."Coleman, 501 U.S. at 735 n. 1; McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).
Under the PCRA, 42 Pa.C.S.A. § 9545(b), a petitioner may file a petition more than one year after the date his conviction became final, provided he pleads and proves that "the right asserted is a constitutional right that was recognized by the Supreme Court of the United State or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively." While this Court suspects, based on the above-referenced jurisprudence, that petitioner would be unable to make this showing, we cannot unequivocally make this holding in light of the Supreme Court's silence on retroactivity. Accordingly, we decline to conclusively find that the claim is procedurally defaulted.
IV. MERITS
A. Improper inclusion of evidence gathered under search warrants
Petitioner's first claim challenges the validity of three search warrants and the introduction of evidence obtained pursuant to those search warrants. Primarily, he alleges that the trial court violated the Fourth Amendment by not suppressing evidence gathered during those searches since police detective affiants knowingly provided false information to the issuing magistrate. Second, he argues that his counsel was ineffective, under the Sixth Amendment, for failing to properly litigate his motion to suppress and preserve his challenges to the search warrants. We find no merit to these claims.
1. Trial Court Error in Failing to Suppress Evidence Obtained From Search Warrants
Insofar as this claim alleges trial court error, well-established jurisprudence precludes our consideration. InStone v. Powell, 428 U.S. 465, 96 S. Ct. 3037 (1976), the Supreme Court held that "where the State has provided an opportunity for a full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."Id. at 494 (footnotes omitted). "Even otherwise potentially meritorious Fourth Amendment claims are barred on habeas [review] when the petitioner had a full and fair opportunity to litigate them." Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994);see also United States ex rel Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978) (citing Stone v. Powell as an obstacle to habeas corpus relief when state courts have throughly reviewed Fourth Amendment claims). Defining the term "opportunity" as used in Stone, the Third Circuit rejected the contention that a petitioner must actually litigate the Fourth Amendment claim.Hubbard v. Jeffes, 653 F.2d 99, 103 (3d Cir. 1980). Rather, it held that the pertinent inquiry was whether "[c]ounsel had all the resources at his command to investigate and present a Fourth Amendment claim at the proper time." Id. Where the failure to litigate a motion to suppress "was not brought about by any restriction of the opportunity by the state courts," Stone would bar consideration of the Fourth Amendment claim by a federal habeas court. Id.
In the instant case, petitioner submitted a motion to suppress, which was fully considered and denied by Judge Moran at the trial level, albeit without a suppression hearing. Here, as in Jeffes, counsel "had all the resources at his command to investigate and present a Fourth Amendment claim at the proper time." In fact, the state court issued a detailed opinion ruling on petitioner's motion to suppress and finding no problem vis-a-vis probable cause. Additionally, the PCRA court considered petitioner's claims on this issue and rejected them. Pursuant to Stone, we cannot grant them new life here.
In any event, the issue of improper inclusion of this evidence in the trial was not properly raised by petitioner during direct appeal. Instead, petitioner, in his PCR A petition, objected only to the ineffectiveness of his counsel in not properly pursuing the suppression motion. As the state courts never had the opportunity to hear this claim, it appears to be procedurally defaulted. Coleman, 501 U.S. at 731-732.
2. Ineffective Assistance for Failure to Properly Litigate the Motion to Suppress
In the second portion of his suppression claim, petitioner alleges that his prior representation failed to properly challenge the executed search warrants. The trial record indicates that, during pre-trial motions, petitioner's counsel moved to suppress the evidence gathered under the warrants. Petitioner subsequently changed counsel. New trial counsel undertook a investigation of the suppression issues and filed an extensive brief legally challenging the validity of the search warrants. Petitioner now contends that trial counsel failed to raise the issue of five material misstatements contained in the affidavit of probable cause. He reasons that had counsel investigated and pursued these five misstatements, the trial court would have granted the motion to suppress. Further, he claims that all subsequent counsel were ineffective for failing to raise the issue on both direct and collateral appeal. Having considered the well-reasoned opinions of the state courts under the pertinent federal jurisprudence, we do not find them to be either contrary to or an unreasonable application of federal law.
A Sixth Amendment ineffective assistance of counsel claim based on trial counsel's failure to properly litigate a motion to suppress evidence allegedly obtained in violation of Fourth Amendment is distinct from a Fourth Amendment claim challenging the actual admission of the evidence. As such, it must be judged according to the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1994), and not as a Fourth Amendment claim governed by Stone, supra. Kimmelman v. Morris, 477 U.S. 365, 374-375, 106 S. Ct. 2574, 2582-83 (1986). In Strickland v. Washington, the Supreme Court set forth a two-prong test for establishing the merit of ineffective counsel claims. Id. at 687. Under the first prong, a claimant must demonstrate that trial counsel's performance fell below an "objective standard of reasonableness." Id. at 688. The burden of proof is on the claimant to undermine judicial deference to attorney judgment; consequently, courts are to avoid "the distorting effects of hindsight" and should "reconstruct the circumstance of counsel's challenged conduct . . . to evaluate the conduct from counsel's perspective at the time." Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 163-164 (1955)). It is well-established that counsel cannot be ineffective for failing to raise a meritless claim. Id. at 691;Holland v. Horn, 150 F. Supp.2d 706, 730 (E.D. Pa. 2001).
Under the second prong of Strickland, a claimant must establish that counsel's performance was so deficient as to prevent them from receiving a fair trial. Strickland, 466 U.S. at 687. More specifically, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The Supreme Court emphasized that in making such a determination "a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Id. at 695. See also Buehl v. Vaughn, 166 F.3d 163 (3d Cir. 1999).
As noted above, petitioner faults counsel for not raising five "material misstatements" in the affidavit of probable cause when litigating his motion to suppress. First, petitioner claims that counsel should have pursued the conflict between statements that petitioner's father gave to police regarding his son's actions on the night of the crime. The affidavits at issue allege that Frank Fenstermacher reported that his son was at 1818 Campbell Street looking for plumbing and electrical supplies on the night of the attack — a pertinent fact because the victim was bound with electrical tape during the assault. Petitioner insists that this statement stands in fatal conflict with his father's trial testimony that petitioner was only at the house looking for plumbing supplies. Such a discrepancy, he argues, demonstrates the general false pretenses under which the search warrant operated.
The affidavit stated: "Investigation has established that William A. Fenstermacher, while at his father's home . . . went into the basement looking for plumbing and electrical material." Petitioner's Exhibit A, at ¶ 10.
The PCRA court evaluated this claim and concluded that counsel's actions were justified. It noted that, during the PCRA hearing, trial counsel testified that he contacted petitioner's father, who could not really remember what he had told the police and could not confirm the falsity of the affidavit. PCRA Court Opinion (2003), at 13-14 (citations omitted). The PCRA court went on to conclude that, in light of his investigation, trial counsel reasonably declined to raise this issue. Deferring to the state court's findings of fact, under 28 U.S.C. § 2254(e)(1), this Court cannot find that counsel's decision to not pursue this argue to fall below an objective standard of reasonableness.
Petitioner's second challenge alleges that counsel should have raised the issue of a discrepancy in time frames on the evening of the attack. The affidavits in support of the warrants claimed that petitioner arrived at his father's home at 7:30 that evening and departed between 8:00 and 8:30 p.m. Petitioner argues, however, that, at trial, his father testified that petitioner arrived at 8:00 p.m. and departed twenty minutes later. The victim was raped at 9:00 that evening.
"Investigation has established that William A. Fenstermacher was at 1818 Campbell St. The night of the rape February 26, 1997 from approximately 7:30 pm until 8:30 pm." Petitioner's Exhibit A-1 at ¶ 9.
The PCRA court examined this issue and determined that the difference in time periods was marginal and immaterial. This finding of fact is sound. The important evidentiary matter was to show that the petitioner was both in the neighborhood and not in his father's home at some point after 8:20 that evening. Accordingly, alleged misstatements as to arrival time were not pertinent to the finding of probable cause for the search warrant and counsel cannot be faulted for failure to pursue them in the motion to suppress. Thus, under Strickland, this decision cannot be deemed ineffective counsel.
Petitioner's third alleged material misstatement concerns the reference, in the affidavit of probable cause to the victim's purse. The search warrants stated that the victim was missing an earring and a set of keys which were in her purse. These items had actually been recovered in the vicinity of the garage where the rape took place shortly after the crime took place. Petitioner contends that this should have been fatal to the probable cause of the warrant.
"After the attack, the suspect took victim's house and car keys. Also, one of victim's earrings was missing after the attack." Petitioner's Exhibit A-1, at ¶ 4.
The Superior Court fully considered this issue and made a finding of fact that there was no misrepresentation regarding the purse. That court concluded that the statements referenced the fact that the purse was taken from the victim, which was consistent with its discovery just outside the garage. The court pointed out that just because a set of keys was recovered in the purse did not preclude another set of keys from being missing from the same purse and emphatically stated that petitioner's claims about these issues were factually inaccurate. PCRA Court Opinion (2003) at p.
7. This Court cannot but agree. Counsel had no reason to raise these claims because there was no reason to believe that they would be successful.
Petitioner's fourth claim is that counsel should have objected to the portion of the affidavit referencing information gathered from "Clyde Wilhelm" regarding petitioner's place of residence. Petitioner asserts that Mr. Wilhelm was deceased prior to the crime and, thus, could not be a source of information. Petitioner's Exhibit F-2 (Clyde Wilhelm's death certificate).
The Superior Court, however, found that any information cited to Mr. Wilhelm was anonymously provided in the initial affidavit and was later erroneously attributed to him. The most important fact is that the information cited to Mr. Wilhelm was, in fact, correct. The affidavit's purpose was to show that petitioner lived in a specific location, not that a specific individual knew of such residence. Thus, again, under Strickland, trial counsel had no reason to raise this issue.
Finally, petitioner argues that counsel should have called to the court's attention the disparity between comments in a supporting affidavit regarding the gate in the rear of petitioner's father's house. Petitioner, however, never raised this issue to the state courts, thereby depriving them of an opportunity to rule on it. Accordingly, it is procedurally defaulted and not appropriate for this Court's consideration.
In sum, trial counsel had no basis on which to raise these five claimed material misstatements when litigating the motion to suppress. As the state courts repeatedly and accurately found, these claims had no merit. Because counsel cannot be ineffective for failing to raise meritless arguments. Therefore, we dismiss the claim in its entirety.
To the extent petitioner alleges appellate and PCR A counsel ineffectiveness we likewise dismiss his claims. UnderStrickland appellate counsel also cannot be ineffective for failure to raise a meritless claim. Strickland, 446 U.S. at 676-77. With respect to PCRA counsel, petitioner has no Sixth Amendment right to counsel in a PCRA proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987).
B. Ineffective Assistance of Counsel for Failure to Object to Prosecutor's Reference to Petitioner's Post-Arrest Silence
In his next challenge to the effectiveness of his counsel, petitioner attacks portions of the Commonwealth's closing argument, which he claims improperly and irreparably biased the jury against him. Counsel failed to make any objection to these comments and petitioner asserts that the result of these two inputs was a flawed verdict.
By way of background, the petitioner in the case at bar, was arrested in connection with the rape ten months after its occurrence. At trial, he claimed, for the first time, that he and the victim had a consensual sexual relationship. Thereafter, during closings, the prosecutor responded as follows:
This rape was a big deal. It was being heavily investigated. There were officers going from door-to-door and the defendant refuses to cooperate. We have neighbors who saw [the victim] within minutes of the rape and they didn't just see [the victim] strolling about. They saw her bound. They saw her gagged. They saw her soiled.
* * *
They sent Detective Righi up to the hospital where he gets the Sirchie crime kit from the nurse who said that she saw the victim that night and that the victim that night was trembling like a frightened animal. Trembling like a frightened animal. And this Sirchie crime kit yielded evidence which is then sent to forensic laboratories.
And on of those forensic laboratories is Cellmark. And Cellmark tells us that the DNA on various items of the victim's clothing includes the defendant to the probability of 1 in 180 million.
So it's a chain, ladies and gentlemen, it's a chain from the night of 2/26/97 through the arrest in December, at the end of '97 when DNA evidence was available. And the first time we hear about a consensual relationship between these two parties is now.
Now, I would suggest that if we could calculate the probabilities about what the likelihood is that that woman would have a relationship with the defendant, it would probably be something like 1 and 180 million as well, the likelihood that she would crawl around on a garage floor having all sorts of degrading sex with that man.
But what make absolutely no sense about this defense, if you use your common sense to analyze it, what makes utterly no sense is why would [the victim] call it rape if she wasn't raped? We first have the obvious.
We have [the victim], and you can see the signs of where the tape went around her face. I don't know how she would have tape around her head? But not only that, what really puzzles me is how do you tape you hands? How do you tape your hands?
And we have Rosella Lynch and Marie Slattery and paramedic Guth saying that her hands were tied in front of her. How in heavens name do you tie your own hands, not only to mention, why would you want to?
The other things is this is not a he said she said case because, first of all, he didn't say, he kept quiet until now; and secondly, she didn't say, she didn't go to Detective Righi and say Bill Fenstermacher raped me, go arrest him.
She said a man who was of a certain build, a certain race, who had a certain manner of speaking, who had a certain shaped face, who was wearing certain clothing, who was standing in a certain place, who did certain things, he raped me.
This is not a he said she said case. Now if she were having an affair with this man for 13 months and she wanted to get him, well that's an entirely different story, isn't it?
Superior Court Opinion (2003) at pp. 11-12 (citing N.T. 2/12/99, at 512-14) (emphasis added). Petitioner argues that although this argument could have been properly made about his pre-arrest silence when he met with police, the prosecutor's reference to the time period after his arrest violated his Fifth Amendment right to remain silent.
Considering this issue on appeal from the denial of petitioner's PCRA petition, the Pennsylvania Superior Court noted that the prosecution was not unambiguously referring to petitioner's post-arrest silence. Rather, read in context of the entire trial, the remarks appeared to refer to the ten months prior to petitioner's arrest when petitioner met with police on three occasions, but never mentioned any affair with the victim. Further, although the court acknowledged that the remarks may "cross the border into post-arrest silence since they reference the time frame up to trial," it determined that petitioner nonetheless suffered no prejudice in light of the overwhelming evidence of his guilt. See Superior Court Opinion (2003), at p. 13.
In light of the relevant jurisprudence, this Court agrees. The Fifth Amendment guarantees an accused the right to remains silent during his criminal trial and prevents the prosecution from commenting on the silence of a defendant who asserts the right.Griffin v. California, 380 U.S. 609, 614, 85 S. Ct. 1229, 1232 (1965). Once a defendant decides to testify, however, "[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination." Brown v. United States, 356 U.S. 148, 156, 78 S. Ct. 622, 627 (1958).
In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976), the United States Supreme Court undertook to define the scope of permissible impeachment when a defendant elects to testify. The court held that impeachment through the use of a defendant's post-arrest, post-Miranda silence violated the Constitution, reasoning that, "`it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.'" Doyle, 426 U.S. at 619 (quotingUnited States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 2139-2140 (1975).
In the subsequently-decided Jenkins v. Anderson, 447 U.S. 231, 240, 100 S. Ct. 2124 (1980), however, the Supreme Court explicitly held that this protection did not extend to cross-examination based on silence prior to either arrest orMiranda warnings. 447 U.S. 240. The Court stated that the use of pre-arrest silence to impeach a defendant's credibility does not deny him the fundamental fairness guaranteed by the Constitution. LimitingDoyle to its facts, the Court explained:
In this case, no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of pre-arrest silence does not violate the Fourteenth Amendment.Jenkins, 447 U.S. at 240.
The Court then reaffirmed its holding regarding pre-arrest silence, in Brecht v. Abramson, 507 U.S. 619, 113 S. Ct. 1710 (1993), noting that "[s]uch silence is probative and does not rest on any implied assurance by law enforcement authorities that it will carry no penalty." Id. at 628. In so opining, however, it expressed concern with cases where a prosecutor's comments on a petitioner's silence are ambiguous as to whether they refer to a defendant's pre-Miranda or post-Miranda silence. It explained:
This case illustrates the point well. The first time petitioner claimed that the shooting was an accident was when he took the stand at trial. It was entirely proper — and probative — for the State to impeach his testimony by pointing out that petitioner had failed to tell anyone before the time he received his Miranda warnings at his arraignment about the shooting being an accident. Indeed, if the shooting was an accident, petitioner had every reason — including to clear his name and preserve evidence supporting his version of the events — to offer his account immediately following the shooting. On the other hand, the State's references to petitioner's silence after that point in time, or more generally to petitioner's failure to come forward with his version of events at any time before trial . . ., crossed the Doyle line. For it is conceivable that, once petitioner had been given his Miranda warnings, he decided to stand on his right to remain silent because he believed his silence would not be used against him at trial.Brecht, 507 U.S. at 628-629.
The case at bar bears substantial similarity to the facts inBrecht. The prosecutor, as noted above, made two references to the petitioner's failure to mention his alleged thirteen-month consensual, sexual affair with the victim at any time prior to taking the stand at trial, despite the fact that he met with police several times during the investigation and prior to his arrest. The first remark clearly limited its scope of reference to the time period from February 26, 1997, the night of the crime, to December 1997, when he was arrested. As petitioner's silence at that time was indeed probative of the credibility of his story at trial, counsel was not ineffective for failing to object. The latter remark, however, presents a greater problem. Rather than emphasizing only that petitioner failed to tell his story during the pre-arrest investigation, the prosecutor remarked that petitioner kept quiet "until now." Accordingly the remark "crossed the Doyle line" into referencing petitioner's failure to come forward with his version of the events at any time prior to trial, including the period post-arrest. This Court cannot find that counsel was justified in not objecting to the latter remark and seeking either clarification or a curative instruction.
Nonetheless, even assuming that counsel's actions fell below an objective standard of reasonableness, petitioner stands hard-pressed to meet the prejudice prong of Strickland, as he has failed to establish a reasonable probability that, but for counsel's failure to object, the result of the proceeding would have been different. The fact remains that petitioner met with police three times prior to his arrest, yet never admitted to any relationship with the victim until confronted by DNA evidence — a fact that was properly before the jury and stood to undermine petitioner's entire defense. Moreover, the evidence at trial against petitioner was overwhelming. As articulated by the Pennsylvania Superior Court:
Appellant admitted on the stand that he had sex with the victim on the night in question. Appellant's DNA match that of [the victim's] attacker. [The victim's] description of the race, build, and mannerisms. The hysterical victim, who had soiled herself, was discovered by a neighbor with electrical tape around her face and hands on the night in question. Superior Court Opinion (2003), at pp. 13-14. As such, the Court declines to find that to the extent counsel was ineffective for failing to object, his inactions resulted in any prejudice to petitioner's trial.
C. Illegality of Sentencing
Petitioner's final claim is that his sentence was excessive insofar as it increased the sentence to the statutory maximum for all the charges involved in the case, in excess of the sentencing guidelines. Petitioner contends that the court gave insufficient reasons for this departure. We reject this claim.
Questions of state substantive law are not a proper subject for federal habeas corpus review. Wainwright v. Sykes, 433 U.S. 72, 81, 97 S. Ct. 2497 (1977); Jones v. Superintendent of Rahway State Prison. 725 F.2d 40, 42-43 (3d Cir. 1984). Sentencing is considered "a matter of state criminal procedure, and does not fall within the purview of federal habeas corpus." Johnson v. Beto, 383 F.2d 197, 198 (5th Cir. 1967). Thus, a federal court has no power to review a sentence in a habeas corpus proceeding unless it exceeds the statutory limits. Jones, 725 F.2d at 42-43 (citing Dorsynski v. United States, 418 U.S. 424, 94 S. Ct. 3042 (1974)); see also Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984) ("[a]s a general rule, federal courts will not review state sentencing determinations that fall within statutory limits."); Hutchins v. Hudley, Civ. A. No. 91-818, 1991 WL 167036, *10 (D.N.J. Aug. 22, 1991) (holding that state sentencing determinations which fall within statutory limits are given great deference and are generally not reviewable through habeas corpus). Indeed, "absent an eighth amendment claim, where the sentence imposed is within the bounds set by state law, its alleged severity is not a sufficient ground for habeas corpus relief." Knight v. Beyer, Civ. A. No. 88-3180, 1989 WL 68618, *4 (D.N.J. June 22, 1989) (citing United States ex rel. Sluder v. Brantley, 454 F.2d 1266, 1269 (7th Cir. 1972).
In the instant case, petitioner did not argue that his sentence was violative of the Eighth Amendment. Rather, he claimed only that the trial judge abused his discretion by sentencing him outside the guidelines. Such an allegation is not cognizable on federal habeas review unless the sentence exceeds the statutory limits. Under 18 Pa.C.S. §§ 1103 and 1104, the statutory maximum for petitioner's rape and involuntary deviate sexual intercourse convictions, both felonies in the first degree, is twenty years each; the statutory maximum for the indecent assault charge (second-degree misdemeanor) is two years; and the statutory maximum for the unlawful restraint charge (first-degree misdemeanor) is five years. As noted, the indecent assault charge merged with the deviate sexual intercourse charge for sentencing purposes. As such, his consecutive sentences of ten to twenty years on each of the two felony convictions and two and a half to five years on the unlawful restraint conviction, for a total of twenty-two and a half to forty-five years in prison, fall within the bounds set by state law. Because the petitioner has not claimed that his sentence was constitutionally excessive and because the Court cannot review the validity of his sentence under state substantive law, we have no choice but to dismiss this claim.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 20th day of June, 2005, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED. There is no probable cause to issue a certificate of appealability.