Opinion
CIVIL ACTION NO. 03-6243.
November 15, 2004
MEMORANDUM AND ORDER
Petitioner Donald Gibson has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. After careful and independent consideration of the petition, and after review of the Report and Recommendation ("R R") of the United States Magistrate Judge, and the petitioner's objections thereto, the petition for a writ of habeas corpus will be denied and dismissed.
The factual and procedural history of this case are as given in the R R, and are incorporated herein. To summarize, the petitioner was charged with homicide, robbery, and related offenses. On November 16, 1984, during a jury trial, the petitioner pled guilty to the charge of homicide generally. A hearing was held to determine the degree of guilt. The Honorable Edmund V. Ludwig found the petitioner guilty of second-degree murder and sentenced the petitioner to life imprisonment on the homicide charge. In addition, the petitioner was sentenced 10 to 20 years on the robbery charges. The petitioner never filed a direct appeal. The petitioner filed petitions under Pennsylvania's Post Conviction Hearing Act ("PCHA") and Post-Conviction Relief Act ("PCRA").
On April 9, 1986, the petitioner filed his first PCHA petition regarding claims of ineffective assistance of counsel and an involuntary guilty plea. Counsel was appointed to represent the petitioner. The Court of Common Pleas of Bucks County dismissed the petition. The petitioner filed an appeal with the Pennsylvania Superior Court, and on September 6, 1988, the Superior Court affirmed the dismissal of the PCHA petition. There was no appeal to the Pennsylvania Supreme Court.
The petitioner filed a second petition in 1991. On December 20, 1991, a hearing was held on the petition. During the hearing, at counsel's request and with the petitioner's approval, the court granted a continuance of the proceedings.
In 1995, the petitioner filed a petition for relief under the PCRA. The petition was dismissed and there was no appeal.
The petitioner filed a PCRA petition in 1999. The petition was dismissed because the court lacked jurisdiction as defined by Section 9545 of the PCRA statute.
The petitioner filed his fifth and final petition on February 12, 2002. It was dismissed on March 21, 2002 for lack of jurisdiction because it was untimely filed. The Pennsylvania Superior Court affirmed the lower court's dismissal.
In the habeas petition, the first claim that the petitioner raises is that he was denied effective assistance of counsel in violation of his due process and equal protection rights when he was unlawfully induced to enter into an involuntary guilty plea and illegal sentence.
The petitioner raised the issue of an involuntarily induced guilty plea and ineffective assistance of counsel in previous PCHA and PCRA petitions in the state courts. However, the petitioner has not properly exhausted these claims in state court, as required in order to obtain federal court review of his habeas petition.
A petitioner seeking federal habeas review must have exhausted state court remedies by having presented each federal constitutional claim to the state courts before seeking habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A). The Supreme Court has recognized an exception to the exhaustion requirement when "there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief." See Duckworth v. Serrano, 454 U.S. 1, 3 (1981).
The Supreme Court has determined that in order to satisfy the exhaustion requirement, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process."O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). It follows that petitioners who have not presented their claims to the highest state court have failed to exhaust those claims. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000). The petitioner never filed an allowance of appeal with the Pennsylvania Supreme Court with respect to any of his PCHA or PCRA petitions.
The petitioner argues that Pennsylvania law does not require him to file an allowance of appeal with the Pennsylvania Supreme Court. The petitioner relies on a 2000 ruling of the Pennsylvania Supreme Court to argue that it was unnecessary to file an allowance of appeal. In 2000, the Pennsylvania Supreme Court ruled that a defendant is not required to petition to the Pennsylvania Supreme Court for allowance of appeal from an adverse decision by the Superior Court in order to be deemed to have exhausted available state court remedies. In re Exhaustion of State Remedies in Criminal Post Conviction Relief Cases, No. 218 Judicial Admin. Docket No. 1 (Pa. May 9, 2000). The Third Circuit, however, has determined that this provision is not to be applied retroactively. Wenger v. Frank, 266 F.3d 218, 225 (3d Cir. 2001). Thus, the petitioner would have been required to file an allowance of appeal with the Pennsylvania Supreme Court for the petitions filed before 2000.
The petitioner also filed a PCRA petition in 2002, after the Pennsylvania Supreme Court ruling. This petition was not properly filed within the time requirement under state law, making exhaustion irrelevant.
When a petitioner has failed to exhaust properly his claims in the state courts, federal courts "excuse" a failure to exhaust "if it is clear the [the habeas petitioner's] claims are now procedurally barred under [state] law." Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). If state procedural rules bar a petitioner from seeking further relief in state courts, the exhaustion requirement is satisfied because there is "an absence of available [s]tate corrective process." Lines, 208 F.3d 153 at 160.
Courts have determined that exhaustion in this context will not be excused unless state law "clearly forecloses" state court review of claims which have not been presented to a state court. Id. at 163. The petitioner is now unable to present his claims to the Pennsylvania Supreme Court. The petitioner is time-barred from filing an allowance of appeal. Under Pennsylvania law, "a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days of the entry of the order of the Superior Court. . . ." See Pa.R.App.P. 1113(a). The petitioner did not file an allowance of appeal for any of his PCRA petitions and he would be clearly foreclosed from doing so today. See, e.g., Lines, 208 F.3d at 153 (finding habeas petitioner clearly foreclosed from amending petition to Pennsylvania Supreme Court that has now been denied for seven years).
With regard to appeals from the lower courts, "notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.App.P. 903(a).
At this point, it would be futile for the petitioner to raise his claims in state court because they would be procedurally defaulted. When a petitioner has procedurally defaulted upon his claims, federal courts may only reach the merits if the petitioner makes a showing of cause for the default and actual prejudice, or if he establishes a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The petitioner offers varying reasons for his failure to appeal the PCHA and PCRA petitions. The petitioner claimed that he did not appeal from the 1986 petition because "counsel abandoned petitioner on appeal." Habeas Petition at 8 (hereinafter, "Pet."). He explained that the 1991 petition was continued with no action from the court. For the 1995 and 1999 petitions, the petitioner explained that they were not appealed because "each time petitioner was in the hold and time run out."Id.
To the extent that the petitioner claims attorney error for procedural default in the state courts, the argument does not establish adequate cause. There is no constitutional right to counsel in state post-conviction collateral proceedings. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Because there was no right to counsel in the petitioner's PCHA and PCRA proceedings, attorney error cannot excuse the default in federal habeas review. Coleman, 501 U.S. at 757; 28 U.S.C. § 2254(i).
Because the petitioner has not established cause for the default, it is unnecessary to address whether there is actual prejudice. However, it is doubtful that the petitioner has demonstrated actual prejudice.
As an alternative to cause and prejudice, a habeas petitioner may avoid the procedural default bar by demonstrating that he or she is probably innocent of the charges. See Murray v. Carrier, 477 U.S. 478 (1986). In order to succeed under the actual innocence standard, the petitioner would have to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schulp v. Delo, 513 U.S. 298, 323 (1995). The petitioner has not come forward with any new evidence or made any showing that he is actually innocent of the charges.
In conclusion, the petitioner failed to exhaust his claim with respect to ineffective assistance of counsel and due process violations regarding his guilty plea. Additionally, these claims would be procedurally defaulted if the petitioner attempted to exhaust these claims in state court. The petitioner is unable to make the requisite showing to overcome the bar to federal habeas review.
The second issue the petitioner raises in the habeas petition is that the state court failed to address the petitioner's claims in his 1991 PCRA petition. The petitioner argues that there was no disposition of the 1991 PCRA hearing. The petitioner claims that counsel abandoned his case and abandoned the court. As a result, he argues that the 1991 petition is still open for disposition and the statute of limitations is tolled. He also argues that all subsequent petitions are moot.
The petitioner refers to the second claim in his petition as being contrary to the facts and the statute of limitations.
The petition at issue was filed on September 20, 1991. The petitioner raised claims of ineffective assistance counsel and an involuntary guilty plea, among others. On December 20, 1991, a hearing took place on the PCRA petition. Attorney David Knight represented the petitioner at the hearing.
The following transpired at the hearing. Mr. Knight informed the court that he had reviewed the petition with Mr. Gibson and that in his estimation, the petitioner's claims had all been previously raised and would not be pursued any further.
Mr. Knight acknowledged that he believed one issue regarding the medical records of the victim's doctor might have merit. He informed the Court that he would address the one issue and advise the court and Mr. Gibson as to whether the issue had merit. At the hearing and in the presence of Mr. Gibson, Mr. Knight informed the Court that Mr. Gibson wanted a continuance. The court asked Mr. Gibson directly whether he wanted a continuance and he agreed that he wished for a continuance. Mr. Knight informed Mr. Gibson that they would pursue the one issue that Mr Knight believed to have merit. He informed Mr. Knight that if he found the issue had merit, he would petition the court for a hearing on that issue. The court continued the case. State Court Record, 1991 PCRA Hearing Transcript.
The petitioner claims that his attorney failed to petition the court one way or the other as to whether the claim had merit. The petitioner claims that counsel's actions amount to ineffective assistance of counsel.
The petitioner's argument that the 1991 PCRA petition is still open for disposition is not supported by the state court record. At the hearing, the claims in the petition were withdrawn at the hearing. Further, the petitioner failed to follow up by filing a new petition to raise the claims regarding the victim's medical records.
To the extent that the petitioner argues that he suffered from ineffective assistance of counsel, such an explanation does not excuse the failure to raise the claims. As discussed above, the petitioner does not have a constitutional right to counsel at state post-conviction collateral proceedings. Finley, 481 U.S. at 557.
In conclusion, the petitioner's 1991 PCRA petition is not still open for disposition.
An appropriate order follows.
The R R states "Petitioner's claim that his 1987 PCHA petition is still open for disposition fails." R R at 7. Most likely, the R R meant to refer to the 1991 petition.
ORDER
AND NOW, this 15th day of November, 2004, upon consideration of the pleadings and record herein, and after review of the Report and Recommendation of the United States Magistrate Judge, for the reasons stated in a memorandum of today's date, IT IS HEREBY ORDERED that:
1. The petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED.
2. A certificate of appealability is not warranted.
3. The Clerk is directed to close the docket for statistical purposes.