Opinion
Civil Action No. 03-6243.
June 24, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Donald Gibson ("Petitioner"), pursuant to 28 U.S.C. § 2254. The Petitioner is currently incarcerated in the State Correctional Institution, Graterford. For the reasons that follow, it is recommended that the Petition should be denied and dismissed with prejudice and without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response thereto, Petitioner's Answer to Respondents' Answer, Respondents' Amended Response, Petitioner's Response to Respondents' Amended Response, and the state court record.
On November 16, 1984, during a jury trial before the Honorable Edmund V. Ludwig in the Court of Common Pleas of Bucks County, Pennsylvania, Petitioner pled guilty to the charge of homicide generally. In exchange for his plea, the Commonwealth agreed not to seek the death penalty against Petitioner. Petitioner confirmed his guilty plea in a lengthy colloquy with the court, assuring the court that his plea was knowing, voluntary, and intelligent. The court held a hearing in order to determine the degree of guilt, and Judge Ludwig found Petitioner guilty of second-degree murder and sentenced him to life imprisonment on the homicide charge with a consecutive sentence of ten to twenty years' imprisonment on the robbery charges, to run concurrently.
Four separate criminal episodes comprise the operative facts in this case. The first two robbery incidents took place on February 25, 1984. First, James Keyburn was inside his home in Bristol Township when he saw a male attempting to pry open his kitchen door. He chased this male from his home and was confronted by Petitioner in his front yard. Petitioner struck Mr. Keyburn in the head with a baseball bat, causing permanent vision loss in his right eye. (N.T., 11/20/84, pp. 7-8.)
Again on February 25, 1984, in Bristol Township, an individual named Louis Palumbo observed a male with a knife enter his home while a second male smashed the front storm window out of Mr. Palumbo's front door. Mr. Palumbo fought with these two males and one stole an eight track player prior to leaving the Palumbo home. Subsequent investigation revealed that Petitioner was the individual who broke the rear window. (Id. at 8-9.)
The third robbery incident for which Petitioner pled guilty occurred in the latter part of January 1984. Petitioner and a co-defendant removed Dr. Carl Bliss Monroe from his car in a Bristol Township parking lot, threatened Dr. Monroe and asked him for money, jewelry, and credit cards. One individual struck Dr. Monroe in the eye, permanently blinding him. Dr. Monroe was then placed in the trunk of his car and driven around Bucks County. Petitioner removed Dr. Monroe from the trunk of his car and threatened to slit his throat. Petitioner and his co-defendant then drove to Dr. Monroe's apartment and removed some of his personal property. (Id. at 10-11.)
The fourth incident occurred the evening of February 19, 1984, when Petitioner and a co-defendant entered Albert Barnes' home in Bucks County with the intent to steal items inside. Petitioner's co-defendant brought an axe handle with him to facilitate the commission of this crime, and during the burglary, the co-defendant used the axe handle to injure Mr. Barnes. (Id. at 14-17.) Mr. Barnes died a few weeks later.
On April 9, 1986, Petitioner filed a pro se petition pursuant to the Post Conviction Hearing Act. The Honorable Isaac Garb held a hearing on this petition on August 3, 1987, and then dismissed the petition. Petitioner filed a timely appeal with the Pennsylvania Superior Court, and on September 6, 1988, the Superior Court affirmed the trial court's decision to dismiss the PCHA petition. Petitioner failed to petition for allowance of appeal.
Petitioner filed a second PCHA petition on September 26, 1991, and a hearing was held on this petition on December 20, 1991.
Petitioner subsequently filed two more PCRA petitions in 1995 and 1999 which were both dismissed, and Petitioner did not appeal those dismissals. On February 12, 2002, Petitioner filed his fifth PCRA petition. On March 21, 2002, the Honorable Kenneth G. Biehn dismissed this fifth PCRA petition for lack of jurisdiction because it was untimely filed. The Pennsylvania Superior Court affirmed the dismissal of the fifth PCRA petition on December 16, 2002. Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.
Petitioner states that his 1986 petition was not appealed because counsel abandoned him on appeal, the 1991 hearing was continued with no action from the court, and the 1995 and 1999 petitions were not appealed because each time Petitioner was in the hold and time ran out. (Pet. at 8.)
On December 3, 2003, Petitioner filed the instant pro se Petition, and this Court granted Respondents' Motion for Extension of Time which effectively extended the Response time to March 5, 2004. Petitioner's Motion to File a Reply seeking additional time was also granted and extended Petitioner's deadline to April 30, 2004. Petitioner filed his Reply on April 14, 2004.
The District Attorney for Bucks County was ordered to file an Amended Response to the Petition within twenty days of May 3, 2004, specifically addressing the adjudicative status of Petitioner's remaining claims in his September 20, 1991 PCHA petition following the continuance of the December 20, 1991 PCHA hearing, and advising whether any such remaining claims were fully adjudicated in the state court because the docket entries Petitioner provided did not reveal this information. The District Attorney filed an Amended Response on May 25, 2004, stating that:
[w]hile the court technically granted a continuance, Attorney Knight had represented that all issues in Petitioner's PCHA petition were not being pursued and further that if he or Petitioner wished to pursue the new issue they had discussed Attorney Knight would file a petition.
Attorney Knight nor Petitioner ever filed a petition for a hearing on this newly proposed issue. Therefore, Petitioner's original PCHA issues were withdrawn during the December 12, 1991 hearing and he failed to ever petition the court for a hearing on the issue related to the victim's medical records. It was specifically represented to the trial court that if he or counsel wished to pursue this issue they would file a petition for a hearing. (N.T., 12/20/91, pp. 2-3.) Petitioner had the opportunity to pursue his claims and opted not to do so.
Am. Resp. at 2. Petitioner filed a Response to the Amended Response on May 28, 2004. The state court record was received by this Court on June 3, 2004.
Respondents deny that Petitioner is entitled to federal habeas review because his Petition wholly consists of claims which were not exhausted at the state court level, Petitioner was not denied effective assistance of counsel, and Petitioner's PCHA and PCRA claims are procedurally defaulted and unreviewable.
II. DISCUSSION.
Respondents argue that the instant Petition contains only claims which are either unexhausted or not properly exhausted for purposes of habeas review. Thus, Respondents argue that Petitioner's failure to exhaust his PCRA claims at the state level should not be excused by this Court.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "requires federal habeas petitioners to exhaust state remedies unless there is an absence of available corrective state process or state remedies are ineffective." Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999); See 28 U.S.C. § 2254(b), (c).
An exception to the exhaustion requirement is made "only if 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." Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (citations omitted); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). The United States Court of Appeals for the Third Circuit has held that "our case law forecloses a District Court from excusing exhaustion `unless state law clearly forecloses state court review of claims which have not previously been presented to a state court.'" Coady v. Vaughn, 251 F.3d 480, 489 (3d Cir. 2001) (quoting Lines v. Larkins, 208 F.3d 153, 163 (3d Cir. 2000) (emphasis in original)). Petitioner claims the delay in the state court's appellate review of his 1995 PCHA petition should excuse his failure to exhaust his state remedies.
Respondents argue there is a clear explanation for the delay in this case: that Petitioner never filed a direct appeal, and although he filed multiple PCHA and PCRA petitions, he raised the same issues in those petitions as in the instant habeas Petition. Petitioner appealed the denial of only two of his numerous PCHA and PCRA petitions to the Superior Court of Pennsylvania. The Superior Court affirmed the PCHA and PCRA courts, and Petitioner never filed any further appeals.
A. Whether the State Court Ruling Was Contrary to the Facts and the Statute of Limitations.
We first address Petitioner's second claim, that the state courts failed to address his argument regarding the victim's medical records and that the 1991 PCHA judge granted a continuance of the proceedings with no disposition or final order thereafter. According to Petitioner, the courts' failure to address his argument resulted in a tolling of the one-year statute of limitations and all subsequently filed PCRA petitions were moot. Petitioner also claims that, as a result of the PCHA court's failure to address his argument, his 1987 PCHA petition is still open for disposition.
Respondents, in a one-paragraph response to this issue, claim that:
[t]he Petitioner's second issue is incomprehensible. Petitioner seems to be asserting that his PCHA or PCRA petitions were timely and therefore should have been addressed on the merits. That is not an issue for this court to decide. As stated above, the Petitioner failed to properly exhaust his state claims by failing to ever file a petition for allowance of appeal with the Pennsylvania Supreme Court. This second issue is a procedural issue that is procedurally defaulted and therefore unreviewable.
Resp., p. 9. Despite this Response, an initial review of the Petition and the Reply filed by Petitioner reveal a potential gap in the state court record regarding whether a decision was made regarding the remaining claim in Petitioner's September 20, 1991 PCHA petition. It is important to determine whether this potential gap is an actuality because inordinate delay in the disposition of the state appellate process not caused by Petitioner may excuse the exhaustion requirement.
Petitioner provided the transcript of the PCHA hearing held before Judge Isaac S. Garb on December 20, 1991. That transcript reveals the following exchange:
MR. KNIGHT [DEFENSE COUNSEL]: I was appointed back in November and in review of this file Mr. Gibson has filed post-conviction hearings alleging six different issues. It appears that he has filed post-hearing conviction appeals back in 1986 here and in 1987. It was Your Honor who handled that matter, and the Superior Court affirmed your decision to deny the petition. I reviewed the petition with Mr. Gibson, the one he has recently filed and essentially it's the same petition that he filed back in 1986 and 1987. It's just a little bit different in some of the language but what it boils down to is the same issues that were decided earlier and denied. I met earlier with the defendant and reviewed the record and there is one other issue that I believe might have merit to it involving some of the records, medical records and I have to speak with the doctor who saw the victim in 1984 and I have not been able to do so as of today.
Mr. Gibson has decided that he is not going to pursue these issues, and I would like to have a chance to look into the one issue that I believe has merit and if I do find it has merit I will advise the Court and Mr. Gibson. If I do not, I will also advise Mr. Gibson and the Court. Mr. Gibson at this time is asking the Court for a continuance.
THE COURT: You want a continuance, Mr. Gibson?
THE DEFENDANT: Yes.
MR. KNIGHT: I would like to have a continuance, Your Honor.
Mr. Gibson, do you understand that the allegations you have raised, in my opinion, do not have merit to require a hearing?
THE DEFENDANT: Yes.
MR. KNIGHT: Do you understand that?
THE DEFENDANT: Yes, I do.
MR. KNIGHT: What we are doing [sic] to do is to pursue the issue we discussed, the issue that may have merit and if we find it does have merit we will petition the Court for a hearing on that issue. Do you understand?
THE DEFENDANT: Yes.
MR. KNIGHT: We have discussed the matter and Mr. Gibson wishes a continuance.
THE COURT: Is that correct, Mr. Gibson, you wish a continuance?
THE DEFENDANT: Yes, I request that, Your Honor.
MR. KNIGHT: We would request a few days so that I can go over this matter more thoroughly with Mr. Gibson.
THE COURT: All right, the case is continued.
N.T., 12/20/91, pp. 2-4; Reply, Ex. A, pp. 2-4; Pet., Ex. B, pp. 2, 4. Petitioner also submitted the case docket information sheets from the Bucks County Clerk of Courts as Exhibit G to his Petition, and Exhibit B to his Reply. The docket entries show that Petitioner filed a PCHA petition on April 9, 1986, a hearing was held on that petition on August 3, 1987, and the petition was granted and withdrawal of plea reconsideration was taken under advisement. On October 2, 1987, Judge Garb filed an opinion and order, and on January 11, 1988, Petitioner filed a notice of appeal to the Superior Court. On September 6, 1988, the judgment of sentence was affirmed by the Superior Court.
On September 20, 1991, Petitioner filed a PCHA petition, and the public defender's office was appointed to represent Petitioner on September 27, 1991. Private counsel was appointed to represent Petitioner due to a conflict with the public defender on November 12, 1991. On December 20, 1991, a continuance was granted on the post-conviction hearing.
On November 14, 1995, Petitioner filed another pro se PCRA petition again asserting the ineffectiveness of trial counsel and an allegation of after-discovered evidence. On November 15, 1995, the court advised petitioner that there were no genuine issues concerning any material fact and that he was not entitled to post-conviction collateral relief because all matters raised were either waived or finally litigated in prior applications. Petitioner then filed a Petition to stay the post-conviction proceeding due to newly discovered evidence. On December 12, 1995, an Order dated December 11, 1995 was entered under Judge Garb's signature which denied, dismissed, and overruled the PCRA petition. Petitioner appealed that Order, and on January 10, 1996, Judge Garb issued a written opinion. In that opinion, Judge Garb states the following:
The issue he purports to raise under the guise of ineffectiveness of counsel or after discovered evidence has to do with evidence regarding the cause of death of the victim. Prior to the change of plea, and during the course of the trial, extensive medical testimony was offered by the Commonwealth through the testimony of Philadelphia Assistant Medical Examiner Halbert Fillinger, M.D. Therein, he testified that it was his opinion to a reasonable degree of medical certainty that the cause of death of the victim was multiple injuries to the head and trunk and that the manner of death was homicide. The evidence in the case revealed that the victim's home was invaded by the defendant and some confederates for the purpose of committing a robbery, and in the course of committing that robbery, severely assaulted the 87 year old victim. Dr. Fillinger testified that as a result of his post mortem examination he found that the victim had suffered a subdural hemorrhage, five fractured ribs, bruising of the right lung with infection of that site of the bruising and also injury to and bleeding around a kidney. He further testified on direct examination that he found that the victim suffered from an enlarged heart with some heart disease, that his lungs were consistent with a man of his age, and that he had bad kidney disease. However, he testified that all of this notwithstanding, as an 87 year old man, his natural disease processes were not particularly significant. He testified that the injuries causing the fractured ribs which caused bruising of the lung and setting from that point a mechanism of infection of the lungs which led to pneumonia which was part of his main mechanism of death.
He was extensively cross examined regarding his findings, and further regarding the hospital chart where the victim was treated during the approximate two weeks that elapsed between the time the injuries were inflicted and the time of his death. In the course of that cross examination, he testified that the victim had hardening of the arteries, that his heart was in pretty bad shape, that he had severe arteriosclerotic heart disease, that he suffered from Black Lung Disease but not from emphysema, and that he has arteriolar nephrosclerosis which meant that his kidneys had been damaged as a result of vascular disease. He ultimately testified, however, that the direct cause of death was multiple injuries to the head and trunk which caused the subdural hematoma and the bruising of the lungs causing ultimate damage to the kidneys.
Notwithstanding the extensive crossexamination from the chart of the victim's hospitalization after the trauma and prior to death, he maintained his opinion regarding the cause of death and the manner of death. All of this was a part of the record at the time that the defendant changed his plea to guilty, and more significantly, at a time when he filed his first Post Conviction Hearing Act application. Those matters, respecting the effectiveness of counsel, have all been finally litigated.
With respect to the after discovered evidence, defendant makes only vague reference to the fact that there is evidence to discount the Commonwealth's contention regarding the cause of death. However, he points to no evidence whatsoever nor does he indicate or illustrate any medical records of the decedent which would substantiate his bald allegation of this so-called "after discovered evidence."Commonwealth v. Gibson, No. 3984-01-84, 1/10/96, pp. 5-7. There is no evidence that Petitioner appealed from this decision, but he did file another pro se PCRA petition on May 24, 1999. In that PCRA petition, Petitioner himself stated that he had filed only two prior PCRA petitions, one in 1987, and the second in 1992. Correspondence dated June 4, 1999 was sent from Judge Garb to Petitioner informing him that the Judge intended to dismiss the petition within twenty days because there were no genuine issues of material fact and the petition was untimely. On June 25, 1999, Judge Biehn filed an opinion on behalf of Judge Garb dismissing the petition.
The PCRA petition was dated May 21, 1999.
Petitioner had actually filed three prior PCHA and PCRA petitions.
A review of the state court rulings indicates that they were not contrary to the facts as presented at trial and the issues raised with respect to any additional medical evidence were fully ruled upon by the lower court. Thus, Petitioner's claim that his 1987 PCHA petition is still open for disposition fails.
B. Petitioner's Ineffective Assistance of Counsel Claims With Respect to His Guilty Plea.
Petitioner's remaining claim 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. Petitioner specifically claims that his defense counsel was in a conspiracy with the prosecutor and sentencing judge, and told Petitioner if he pled guilty he would receive a sentence of ten to twenty years' imprisonment to be served concurrently with all of his other cases, and that Petitioner would be eligible for parole in ten years. Petitioner claims that counsel, at the hearing before Judge Garb on August 3, 1987, fraudulently covered up and concealed the facts of his case. Petitioner further claims that neither counsel, the judge, nor the prosecutor explained to him any elements of the crimes for which he was pleading guilty, which caused him to plead guilty to the crimes and be sentenced on charges without a criminal complaint first being filed.
The test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant."Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citations omitted). A guilty plea waives the constitutional right to a jury trial, the right to confront accusers, and the right against self-incrimination. Thus, the plea must be a "`knowing intelligent act' that is `the voluntary expression of [the defendant's] own choice.'" Heiser v. Ryan, 951 F.2d 559, 561 (3d Cir. 1991) (quoting Brady v. U.S., 397 U.S. 742, 748 (1970)).
A prisoner may attack only the voluntary and intelligent character of the guilty plea by showing the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. Siers v. Ryan, 773 F.2d 37, 42 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989) (citingTollett v. Henderson, 411 U.S. 258, 266-267 (1973)); see also Lesko v. Lehman, 925 F.2d 1527, 1537-1538 (3d Cir.),cert. denied, 502 U.S. 898 (1991) (counseled and voluntary guilty plea may not be attacked in habeas action). A habeas petitioner challenging the voluntary nature of his guilty plea faces a heavy burden, the plea colloquy, which is designed to uncover anything rendering the plea involuntary. Zilich v. Reid, 36 F.3d 317, 320 (3d Cir. 1994). A defendant's declarations made under oath at a plea colloquy "ought not to be lightly cast aside." Id. Although a person who is incompetent cannot plead guilty, a defendant is deemed competent if he has sufficient present ability to consult with his attorney with a reasonable degree of rational and factual understanding about the proceedings against him or if he assists in his defense. Dusky v. U.S., 362 U.S. 402 (1960).
An independent review of the transcript of Petitioner's guilty plea colloquy with the court indicates that he rationally understood the consequences of his voluntary and knowing choice to plead guilty. Moreover, Petitioner's choice to plead guilty was wise because he received the bargain of the prosecutor's agreement not to seek the death penalty.
Petitioner raised this ineffectiveness of counsel claim in the PCRA court on collateral review, and the PCRA court stated:
Counsel likewise filed motions for reconsideration of sentence and for the withdrawal of a plea of guilty asserting that defendant was misled by counsel with respect to the nature of the plea bargain. Of course, when considering a petition to withdraw a guilty plea after sentencing, a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified. Manifest injustice requires a showing that the plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Warren, 307 Pa. Super. 221, 453 A.2d 5 (1982) and Commonwealth v. Nelson, 319 Pa. Super. 66, 465 A.2d 1056 (1983). Of course, the same standard applies even where the plea was entered pursuant to a plea bargain. Commonwealth v. Carter, 318 Pa. Super. 252, 464 A.2d 1327 (1983).
Defendant contends that he was not advised of the true nature of the plea bargain by counsel prior to his entry of the plea. It is his contention, and he so testified, that counsel told him that the bargained for sentence was one of not less than 10 nor more than 20 years on all charges. We totally reject that testimony as being untrue. The record reflects a full and complete colloquy by the Court and the defendant prior to the acceptance of the plea of guilty at which time no such representations were ever made. At the post-conviction hearing, both defense counsel testified unequivocally that prior to the entry of the plea and during a recess in the trial, they discussed the plea bargain at length and in detail with the defendant. Both counsel testified that they advised the defendant that the Commonwealth had offered to refrain from seeking the death penalty in return for the entry of an open plea of guilty to the homicide charges with the understanding that the bargained for sentence would be whatever resulted from the degree of guilt finding by the Court and the sentence imposed as a result thereof as well as a consecutive 10 to 20 year sentence for all of the robberies concurrent with one another. This was precisely the bargain which was adhered to by the Court. After a degree of guilt hearing, the Court found the defendant guilty of second degree murder for which defendant was sentenced to a term of life imprisonment. Obviously, the court had no other choice. In addition, the court imposed the bargained for sentence of 10 to 20 years consecutive to the life sentence for all of the robberies. We reject the defendant's assertion that he was unaware of the nature of the bargain and did not agree to it. On the contrary, we accept the testimony of counsel that he was fully informed of the nature of the bargain and agreed thereto when he entered his plea of guilty.Commonwealth v. Gibson, 10/2/87 PCRA decision, pp. 3-5. On October 2, 1987, Petitioner appealed this PCRA decision to the Superior Court of Pennsylvania. The Superior Court affirmed, stating:
The second issue raised is that the guilty plea was involuntary and unknowing as the appellant was not accurately informed of the terms of the agreement. It is claimed that counsel was ineffective in this respect. We find this argument totally devoid of merit. Prior to entering a guilty plea to homicide generally and to the various robbery charges, defense counsel told the appellant that if he entered a guilty plea to homicide, that the maximum sentence imposed for homicide would be life imprisonment. He was also told that if the court accepted the guilty plea, he would receive 10 to 20 years for the various robberies with which he was charged, and sentences for the robberies and related offenses would be consecutive to the sentence for homicide and concurrent with each other. The court was to determine the degree of guilt on the homicide charge and impose the sentence for that offense. The sentence imposed was clearly within the framework of the plea agreement and will not be set aside notwithstanding the appellant's claim that he misunderstood the agreement.
In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in a manifest injustice to the defendant. Commonwealth v. West, 336 Pa. Super. 180, 485 A.2d 490 (1984); Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984). Allegations of ineffectiveness of counsel in connection with the guilty plea will provide a basis of relief only if the ineffectiveness caused an involuntary or unknowing plea. Commonwealth v. Fultz, 316 Pa. Super. 260, 462 A.2d 1340 (1983). A defendant who attempts to withdraw a guilty plea after sentencing must carry the substantial burden of showing a manifest injustice which is imposed in recognition that a plea withdrawal can be used as a sentence testing device. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). Allegations of ineffectiveness of counsel in connection with the entry of a guilty plea provide a basis for withdrawal of the plea only if there is a nexus between counsel's ineffectiveness and an involuntary or unknowing plea. Commonwealth v. West, supra; Commonwealth v. Owens, 321 Pa. Super. 122, 467 A.2d 1159 (1983).
In the instant case, counsel was not ineffective in the presentation to his client of the plea agreement, and the appellant's entry of the plea was voluntary and informed.Commonwealth v. Gibson, No. 00160 Philadelphia 1988 (Pa.Super. Sept. 6, 1988), pp. 6-7. Petitioner raised this ineffectiveness issue again in his February 12, 2002 PCRA petition. Judge Kenneth G. Biehn dismissed that PCRA petition for lack of jurisdiction because the petition was not filed within one year of December 20, 1984, when Petitioner's sentence became final. Petitioner appealed this dismissal of his PCRA petition to the Superior Court, and the Superior Court affirmed the dismissal on December 16, 2002. Commonwealth v. Gibson, No. 1587 EDA 2002 (Pa.Super. Dec. 16, 2002).
Because of the way Petitioner presented his state law claim, i.e., with no reference or indication to the state court that he was advancing a federal claim, the state courts, including the Pennsylvania Superior Court, addressed the claim solely as a state law claim. Thus, Petitioner has not satisfied the exhaustion requirement. See Duncan v. Henry, 513 U.S. 364, 366 (1995) (holding petitioner did not fairly present his due process claim where claim advanced in state court relied only on state law). Where the highest state court has not ruled on the merits of the claims and would not now do so for procedural reasons, the claims are procedurally defaulted and will not be reviewed by a federal habeas court in the absence of a showing of cause and prejudice or a miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622-623 (1998); Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Federal courts may review a claim, notwithstanding its procedural default, only where the petitioner "can demonstrate 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. First, Petitioner does not allege cause and prejudice, therefore the procedural defaults cannot be excused on this basis. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that petitioner's failure to allege cause for his default precluded federal habeas review of defaulted claim). Secondly, Petitioner has not shown that he is actually innocent, a requirement of the fundamental miscarriage of justice argument from a failure to consider the defaulted claims. Schlup v. Delo, 513 U.S. 298, 327 (1995).
To the extent that Petitioner would allege the ineffective assistance of counsel as cause for his default, his allegation fails because Petitioner's ineffectiveness claims cannot establish cause to excuse his procedural default. To prove cause for a procedural default, Petitioner must show that an objective factor external to the defense impeded his ability to comply with the pertinent procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); Caswell v. Ryan, 953 F.2d 853, 861-862 (3d Cir.),cert. denied, 504 U.S. 944 (1992) (citations and internal quotations omitted). Counsel's conduct can be cause for a default only if counsel's omission amounts to an independent constitutional violation. Coleman, 501 U.S. at 755. However, that independent constitutional claim must have been exhausted in the state court system. Edwards v. Carpenter, 529 U.S. 446, 452-454 (2000); Murray, 477 U.S. at 489; Lines, 208 F.3d at 167 (citations omitted). Moreover, since the right to counsel does not extend to collateral proceedings, counsel's conduct in those proceedings cannot amount to cause to excuse a procedural default. Coleman, 501 U.S. at 755-757.
Any cause and prejudice argument also would independently fail because Petitioner cannot demonstrate prejudice. To establish prejudice, he must show "not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Murray, 477 U.S. at 493 (quoting U.S. v. Frady, 456 U.S. 152, 170 (1982)).
Lastly, Petitioner cannot establish a miscarriage of justice excusing his procedural default since the miscarriage of justice exception is available only in extraordinary cases in which the petitioner demonstrates actual innocence of the crime. Schlup, 513 U.S. at 321. An actual innocence claim "requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id. at 324. A petitioner must show that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Id. at 329. Here, Petitioner has not presented any new evidence demonstrating his actual innocence. He has also not alleged any new reliable scientific or physical evidence, nor has he come forward with a trustworthy eyewitness exculpatory account. Therefore, the miscarriage of justice exception to procedural default does not apply.
Therefore, I make the following: