Opinion
CIVIL ACTION NO. 17-2945
07-16-2019
JOSEPH P. GUARRASI v. TAMMY FERGUSON, et al.
REPORT AND RECOMMENDATION
Presently before the court is a Petition for a Writ of Habeas Corpus filed by Joseph P. Guarrasi ("Petitioner"), pro se, pursuant to 28 U.S.C. § 2254. Petitioner is serving a six and one-half to fifteen-year term of incarceration at the State Correctional Institution-Benner Township. He seeks habeas relief based on allegations of involuntary nolo contendere and guilty pleas, actual innocence, illegal search and seizure, and ineffective assistance of counsel. The Honorable Timothy J. Savage referred this matter to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Petitioner not be afforded habeas relief.
I. FACTUAL AND PROCEDURAL HISTORY
The information set forth in this factual and procedural history was gleaned from Petitioner's Habeas Corpus Petition, inclusive of all exhibits thereto (Document No. 1), his Memorandum in Support of his Habeas Petition, inclusive of all exhibits thereto (Document No. 5), the Commonwealth's Answer, inclusive of all exhibits thereto (Document No. 6), Petitioner's Reply, inclusive of all exhibits thereto (Document No. 7), and the state court record.
On March 25, 2005, in the Court of Common Pleas of Bucks County, Petitioner entered a nolo contendere plea to a charge of attempt to commit criminal homicide and guilty but mentally ill to a number of attempts to commit aggravated assault, kidnapping, unlawful restraint, false imprisonment, and burglary, as well as criminal solicitation to commit insurance fraud. N.T. 3/25/05 at 7-9. Later, on May 25, 2005, the trial court held a hearing and determined that Petitioner met the criteria to be found guilty but mentally ill under 18 Pa. Cons. Stat. Ann. § 314; on the same day, Petitioner was sentenced to six and one-half to fifteen years of imprisonment. Answer ("Ans.") at 1.
Petitioner appealed, challenging discretionary aspects of his sentence, and, on July 6, 2006, the Pennsylvania Superior Court affirmed his judgment of sentence. Commonwealth v. Guarrasi, No. 1796 EDA 2005, slip op. at 9 (Pa. Super. Ct. July 6, 2006) ("2006 Super. Ct. Op."). Petitioner did not seek allowance of appeal ("allocatur") in the Pennsylvania Supreme Court. Pet. at 6.
On June 29, 2007, Petitioner sought relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-46. Pet'r Mem. in Support of Habeas Corpus Pet. ("Pet. Mem.") at 5, Ans. at 2. Petitioner was appointed three separate attorneys and several counseled PCRA hearings were held in 2008. Id. Thereafter, Petitioner was permitted to proceed without counsel, id., and thirteen more hearings were held from 2010 to 2014. Pet. Mem. at 5-6, Ans. at 2. Notably, in February 2011, a crucial Commonwealth witness, Michael Samios, died. Pet. Mem. at 6. On October 20, 2015, the PCRA court denied relief. Pet. Mem. at 6, Ans. at 3. Upon appeal, on November 15, 2016, the Pennsylvania Superior Court affirmed, utilizing the PCRA court's rationale for resolution of the claims Petitioner had properly preserved for appeal. Commonwealth v. Guarrasi, No. 3541 EDA 2015, slip op. at 6 (Pa. Super. Ct. Nov. 15, 2016) ("2016 Super. Ct. Op."). Thereafter, on May 31, 2017, the Pennsylvania Supreme Court denied allocatur. Pet. Mem. at 6, Ans. at 3.
On June 7, 2017, Petitioner filed his habeas petition, claiming: (1) his March 28, 2005 nolo contendere and guilty pleas were involuntary, because he was incompetent, there was no factual basis for the pleas, and there were incorrect descriptions of some of the crimes to which he was admitting; (2) he is actually innocent of the crimes to which he admitted; (3) the wiretap evidence seized by the police (conversations between Petitioner and Mr. Samios) was obtained in violation of the Fourth Amendment and Pennsylvania law; (4) trial counsel rendered ineffective assistance when they permitted Petitioner to plead nolo contendere and guilty on March 28, 2005, because (a) Petitioner was unmedicated at the time, (b) the plea colloquy was defective, (c) they had failed to move to suppress the wiretap evidence, (d) they had failed to listen to the wiretap evidence, (e) they misrepresented the wiretap evidence to Petitioner, (f) a promised sentence was not obtained, (g) they failed to engage an expert, (h) they failed to obtain follow-up wiretap discovery, (i) they failed to obtain transcripts of the wiretap recordings, which would have revealed affirmative defenses, tampering with the wiretap evidence and exculpatory wiretap evidence. Pet. at 8, 10, 12-14. The Commonwealth responds that all of Petitioner's claims are non-cognizable, procedurally defaulted, or lack merit. Ans. at 19-61.
The Clerk of Court docketed this habeas corpus petition on June 29, 2017. However, Petitioner is a pro se inmate, hence, his petition is deemed filed on the date he gave it to prison officials for mailing. See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998). Under penalty of perjury, Petitioner stated that he placed his habeas petition in the prison mailing system on June 7, 2017. Pet. at 19. Hence, this court will deem June 7, 2017 as the filing date, pursuant to Burns.
Petitioner asserts that he was represented by two attorneys, Richard Fink and Alan Tauber prior to and after entering his pleas. Pet. at 16-17. However, he concedes that Mr. Tauber did not enter his appearance until direct appeal. Id. In order to conform with Petitioner's complaints, the court states his ineffective trial counsel claims involve more than one attorney; however, for the most part, it is only the conduct of Mr. Fink that the court considers.
This court finds that claim two is non-cognizable, the portion of claim three that is based on state law is non-cognizable, and the portion of claim three based on the Fourth Amendment is barred by Stone v. Powell, 428 U.S. 465 (1976). Claim one is procedurally defaulted. The multiple subparts of claim four are procedurally defaulted or unmeritorious.
II. DISCUSSION
A. Claim Two and the State-Law Portion of Claim Three are not Cognizable
In claim two, Petitioner alleges that he is actually innocent of the offenses to which he pleaded nolo contendere or guilty. However, the U.S. Supreme Court has declined to hold that the federal constitution authorizes relief for a defendant who is actually innocent. Herrera v. Collins, 506 U.S. 390, 400, 404 (1993). Hence, Petitioner's free-standing actual innocence claim is not cognizable.
In part of claim three, Petitioner alleges that the wiretaps used to obtain incriminating evidence against him were obtained in violation of several provisions of the Pennsylvania Wiretap Act. However, habeas relief is available only for violations of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). This claim, based upon state law error, is not cognizable. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). B. The Balance of Claim Three is Barred by Stone v. Powell
The Supreme Court has held that federal habeas relief cannot be granted based upon a Fourth Amendment claim, if the petitioner had an opportunity to litigate that claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). This bar is applicable so long as there is no structural defect in the state court proceeding that prevented fair consideration of the defendant's Fourth Amendment claim. Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002).
In claim three, Petitioner alleges that the wiretaps in his case were obtained in violation of the Fourth Amendment. Although Petitioner complains that the wiretaps were obtained and preserved improperly, he does not allege that any structural defect in the state court prevented him from raising his challenges on direct appeal. Further, since he had pled nolo contendere and guilty, Petitioner waived potential Fourth Amendment challenges to the evidence against him, N.T. 3/28/05 at 3-4, as a basis to grant habeas relief. Marshall, 307 F.3d at 82.
C. Claims One and Four (a), (e)-(g) and (i) Are Procedurally Defaulted
1. General Principles Regarding Procedural Default
A habeas petitioner must exhaust state court remedies before obtaining habeas relief. 28 U.S.C. § 2254(b)(1)(A). The traditional way to exhaust state court remedies in Pennsylvania was to fairly present a claim to the trial court, the Pennsylvania Superior Court and the Pennsylvania Supreme Court. See Evans v. Court of Common Pleas, Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992). However, in light of a May 9, 2000 order of the Pennsylvania Supreme Court, it is no longer necessary for Pennsylvania inmates to seek allocatur from the Pennsylvania Supreme Court in order to exhaust state remedies. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
If a habeas petitioner has presented his claim to the state courts but the state courts have declined to review the claim on its merits, because the petitioner failed to comply with a state rule of procedure when presenting the claim, the claim is procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 262-63 (1989). When a state court has declined to review a claim based on a procedural default and the claim is not later addressed on the merits by a higher court, the habeas court must presume that the higher state court's decision rests on the procedural default identified by the lower state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Finally, when a habeas petitioner has failed to exhaust a claim and it is clear that the state courts would not consider the claim because of a state procedural rule, the claim is procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
A common reason the state courts would decline to review a claim that has not been presented previously is the expiration of the statute of limitations for state collateral review. See Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001).
Procedurally defaulted claims cannot be reviewed unless "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 will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In order to demonstrate cause, the petitioner must show that "some objective factor external to the defense impeded [the petitioner's] efforts to comply with the state's procedural rule." Id. at 753 (citation omitted). Examples of suitable cause include: (1) a showing that the factual or legal basis for a claim was not reasonably available; (2) a showing that some interference by state officials made compliance with the state procedural rule impracticable; (3) attorney error that constitutes ineffective assistance of counsel. Id. at 753-54. The Supreme Court held that ineffective assistance of state post-conviction counsel cannot constitute cause, because there is no constitutional right to counsel during those proceedings. Id. at 752-53. Twenty-one years later, the Supreme Court announced a limited exception to the Coleman rule and held that a habeas petitioner could demonstrate cause to excuse his procedural default of an ineffective assistance of trial counsel claim if his state requires that claims of trial counsel ineffectiveness be deferred to state collateral proceedings and if initial state-collateral-counsel ineffectively failed to raise the claim. Martinez v. Ryan, 566 U.S. 1, 9 (2012).
The fundamental miscarriage of justice exception is limited to cases of "actual innocence." Schlup v. Delo, 513 U.S. 298, 321-22, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). In order to demonstrate that he is "actually innocent," the petitioner must present new, reliable evidence of his innocence that was not presented at trial. Id. at 316-17, 324. The court must consider the evidence of innocence presented, along with all the evidence in the record, even that which was excluded or unavailable at trial. Id. at 327-28. Once all this evidence is considered, the petitioner's defaulted claims can only be reviewed if the court is satisfied "that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327.
This evidence need not be directly related to the habeas claims the petitioner is presenting, because the habeas claims themselves need not demonstrate that he is innocent. See Schlup, 513 U.S. at 315.
2. Procedurally Defaulted Claim One and Portions of Claim Four
Petitioner raised claim one during PCRA proceedings. See Commonwealth v. Guarrasi, No. 3514 EDA 2015, slip op. at 4 (Pa. Super. Ct. Nov. 15, 2016) ("2016 Super. Ct. Op."). On PCRA appeal, the Superior Court held that the claim was waived, because Petitioner could have raised it on direct appeal. Id. at 5-6 n.3. Thus, Petitioner's failure to comply with state procedural law, has caused this claim to be procedurally defaulted and barred from habeas review. Harris, 489 U.S. at 262-63. Petitioner's Reply neither acknowledges this default nor raises excuses. Therefore, procedurally defaulted claim one may not be reviewed on its merits.
Instead, Petitioner argues that the state court erroneously applied 42 Pa. Cons. Stat. Ann. § 9543(b) to bar consideration of his claims. See Reply at 11-14. This court does not rely upon that default and, instead, relies upon the waiver and resultant procedural default identified above.
Upon PCRA appeal, Petitioner failed to raise claims four (a), (e), and (g). See 2016 Super. Ct. Op. at 5. Hence, those claims are unexhausted. Lambert, 387 F.3d at 233-34. Further, Petitioner did not present claims four (f) and (i) to the PCRA court. See PCRA Ct. Op. at 71, 108-110. These claims are unexhausted as well. Lambert, 387 F.3d at 233-34. Petitioner's one-year PCRA statute of limitation has expired, so he cannot now raise these claims. Since these claims are time-barred by the PCRA, they are procedurally defaulted. Keller, 251 F.3d at 415. In his Reply, Petitioner did not address these specific defaults, or attempt to excuse them. Therefore, procedurally defaulted claims four (a), (e), (f), (g) and (i) may not be reviewed on their merits.
Petitioner's conviction became final on August 5, 2006. See 2016 Super. Ct. Op. at 2. The PCRA statute of limitations expired one year later, on August 5, 2007. See 42 Pa. Cons. Stat. Ann. § 9545(b)(1).
Petitioner argues that the state court erroneously applied 42 Pa. Cons. Stat. Ann. § 9543(b) to bar consideration of his claims. See Reply at 11-14. However, this court does not rely upon that possible procedural default.
C. Exhausted Claims Four (b)-(d), and (h) Lack Merit
1. The AEDPA Standard of Review
Any claims adjudicated by the state court must be considered under the deferential standard of review established by the AEDPA, which provides that habeas relief is precluded, unless the state court's adjudication of a 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; or28 U.S.C. § 2254(d). The habeas statute further provides that any findings of fact made by the state court must be presumed to be correct; Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
(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 proceedings.
A state court's adjudication of a claim is contrary to U.S. Supreme Court precedent, if the state court has applied a rule that contradicts the governing law set forth in Supreme Court precedent or if the state court confronts a set of facts which are materially indistinguishable from a decision of the Supreme Court and the state court arrives at a different result from the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). When determining whether a state court's decision was contrary to U.S. Supreme Court precedent, the habeas court should not be quick to attribute error. See Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). Instead, state court decisions should be "given the benefit of the doubt." Id. In this regard, it is not necessary that the state court cite the governing Supreme Court precedent or even be aware of the governing Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8, (2002) (per curiam). All that is required is that "neither the reasoning nor the result of the state-court decision contradicts" Supreme Court precedent. Id.
If, however, the state court does correctly identify the governing U.S. Supreme Court precedent, unreasonable application analysis, rather than contrary analysis, is appropriate. Williams, 529 U.S. at 406. A state court decision constitutes an unreasonable application of Supreme Court precedent if the state court correctly identifies the governing legal rule but applies it unreasonably to the facts of the petitioner's case. Id. at 407-08.
In making the unreasonable application determination, the habeas court must ask whether the state court's application of Supreme Court precedent was objectively reasonable. Williams, 529 U.S. at 409. The habeas court may not grant relief simply because it believes the state court's adjudication of the petitioner's claim was incorrect. Id. at 411. Rather, the habeas court must be convinced that the state court's adjudication of the claim was objectively unreasonable. Id. In doing so, the habeas court is limited to considering the factual record that was before the state court when it ruled, Cullen v. Pinholster, 563 U.S. 170, 185 (2011), and the relevant U.S. Supreme Court precedent that had been decided by the date of the state court's decision. Greene v. Fisher, 565 U.S. 34, 38 (2012). It is permissible to consider the decisions of lower federal courts which have applied clearly established Supreme Court precedent, when deciding whether a state court's application of U.S. Supreme Court precedent was reasonable. See Fischetti v. Johnson, 384 F.3d 140, 149 (3d Cir. 2004). However, the § 2254(d)(1) bar to habeas relief cannot be surmounted solely based upon lower federal court precedent, i.e., lower federal court precedent cannot justify a conclusion that a state court's application of U.S. Supreme Court precedent was unreasonable; only U.S. Supreme Court precedent may be the authority for that conclusion. Renico v. Lett, 559 U.S. 766, 778-79 (2010).
The Supreme Court, addressing the AEDPA's factual review provisions in Miller-El v. Cockrell, 537 U.S. 322 (2003), interpreted § 2254(d)(2) to mean that "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Id. at 340. A clear example of an unreasonable factual determination occurs where the state court erroneously finds a fact that lacks any support in the record. Wiggins v. Smith, 539 U.S. 510, 528 (2003). In that extreme circumstance, the presumption of correctness under § 2254(e)(1) is also clearly and convincingly rebutted. Id. If the state court's decision based on a factual determination is unreasonable in light of the evidence presented in the state court proceeding, habeas relief is not barred by § 2254(d)(2). Lambert, 387 F.3d at 235.
2. Standard for Ineffective Assistance of Counsel
Federal ineffective assistance of counsel claims are measured against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that "[trial] counsel's representation fell below an objective standard of reasonableness." Id. at 688. In making this determination, the court's scrutiny of counsel's performance must be "highly deferential." Id. at 689. The court should make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. In short, the "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (quotation omitted).
Second, the petitioner must show that trial counsel's deficient performance "prejudiced the defense" by "depriv[ing] the [petitioner] of a fair trial, a trial whose result is reliable." Id. at 687. That is, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome," id., but it is less than a preponderance of the evidence. Id. at 693, 694.
If the petitioner fails to satisfy either prong of the Strickland test, there is no need to evaluate the other part, as his claim will fail. Id. at 697. Further, counsel cannot be found ineffective for failing to present an unmeritorious claim or objection. Johnson v. Tennis, 549 F.3d 296, 301 (3d Cir. 2008).
3. Claim Four (b) Lacks Merit
Petitioner claims that trial counsel was ineffective for failing to object to errors that would render his pleas involuntary and which occurred during his March 28, 2005 nolo contendere and guilty plea colloquy. Specifically, he asserts that the plea colloquy was defective because (1) no written plea colloquy was provided, (2) he was not present for a portion of the colloquy, (3) there was no factual basis for his plea, (4) the elements of some of the offenses involved in the plea were described incorrectly, and (5) the trial court failed to instruct Petitioner on affirmative defenses he was waiving by entering his nolo contendere and guilty pleas. Pet. Mem. at 62-72. The Superior Court adopted the PCRA court's resolution of these claims. 2016 Super. Ct. Op. at 6. The PCRA court found that these claims lacked merit. Commonwealth v. Guarrasi, CP-09-CR-5423-2004, slip op. at 88-95 (Bucks Cnty. Oct. 20, 2015) ("PCRA Ct. Op."). It also found that Petitioner had waived his assertion that he was not present for part of the plea colloquy. Id. at 88. Petitioner has failed to attempt to excuse this default, hence, this claim will not be considered. See supra Section II(B)(2).
(a) Federal Constitutional Guilty Plea Standards
The U.S. Supreme Court has explained that a guilty plea is not simply the defendant's admission that he committed certain acts, the plea is itself a conviction which justifies the defendant's punishment. Boykin v. Alabama, 395 U.S. 238, 242 (1969). The plea must be voluntary, knowing and intelligent. See id. For a guilty plea to be valid, the defendant must be informed of the federal constitutional rights he is waiving by pleading guilty and he must have a full understanding of "what the plea connotes and of its consequences." Id. at 243-44. At a minimum, the defendant must be informed that he is waiving the right against compulsory self-incrimination, the right to a jury trial, and the right to confront his accusers. Id. at 243. Furthermore, the defendant must be advised of the potential sentence he faces if he elects to go to trial. Brady v. United States, 397 U.S. 742, 749 (1970).
(b) Application of Standards to Claims
The state court resolved Petitioner's first claim by finding that, in 2005, it was not the custom of the Bucks County Court of Common Pleas to provide written plea agreements to defendants; a written plea colloquy is not a perquisite to establish a knowing, voluntary and intelligent plea. PCRA Ct. Op. at 88. Hence, counsel was not ineffective for failing to secure one. Id.
This court finds that the PCRA court's resolution of Petitioner's claim was reasonable. The PCRA court is in a far better position than this court to opine about the local practice in 2005 and the U.S. Supreme Court has never held that a written plea colloquy is required to establish a knowing, voluntary and intelligent plea. Indeed, Boykin was premised on the trial judge's failure, at the guilty plea hearing, to pose any questions to the defendant to establish whether the plea was voluntary. Boykin, 395 U.S. at 239. Accordingly, the state court's conclusion that trial counsel had no realistic basis to complain about the verbal nature of the plea is reasonable, as is the conclusion that he was not ineffective. See Johnson, 549 F.3d at 301.
The state court rejected Petitioner's claim that his plea lacked a factual basis, on the ground that it was belied by the record; inasmuch as the underlying claim lacked merit, trial counsel could not have been ineffective for failing to raise it. PCRA Ct. Op. at 89-91. Since Petitioner has failed to present clear and convincing evidence to rebut the state court's finding that there was, indeed, a factual basis for his plea, this court must accept it. See 28 U.S.C. § 2254(e)(1). The state court's fact-finding conclusively refutes the factual allegations behind Petitioner's ineffective assistance claim; hence, this court must find that trial counsel was not ineffective.
In addition, the Third Circuit has held that there is no federal constitutional requirement that the factual basis for a guilty plea be stated on the record. Meyers v. Gillis, 93 F.3d 1147, 1151 (3d Cir. 1996) (Alito, J.). Hence, even if Petitioner could successfully rebut the presumption of correctness, he could not obtain habeas relief based on trial counsel's failure to object to the trial court's failure to establish the factual basis for his pleas.
Next, the state court rejected Petitioner's claim that trial counsel was ineffective for letting him enter his pleas, because the trial court erred in describing the elements of various offenses. The state court found that the trial court accurately described the state-law elements of the relevant offenses, therefore, trial counsel was not ineffective. PCRA Ct. Op. at 91-94. The state court's state-law conclusions that all offenses were described correctly is binding on this court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2006) (per curiam). Hence, trial counsel was not ineffective for failing to raise unmeritorious arguments. Johnson, 549 F.3d at 301.
Finally, the PCRA court found that Petitioner was disingenuous in asserting that there were possible affirmative defenses which the trial court should have mentioned during the plea colloquy. PCRA Ct. Op. at 94. Notably, the PCRA court credited trial counsel's testimony that he had investigated any possible affirmative defenses, and found them not viable. Id. at 94-95. This unrebutted state court fact-finding is binding herein, see 28 U.S.C. § 2254(e)(1), and supports the PCRA court's ultimate determination that trial counsel made a reasonable, professional decision not to request the trial court to mention any affirmative defenses during the plea colloquy.
4. Claim Four (c) Lacks Merit
Petitioner complains that trial counsel failed to present several viable state-law challenges to seek suppression of the wiretap evidence and that these failures rendered Petitioner's pleas involuntary. Pet. at 14, Pet. Mem. at 79-106. In assessing this argument, the PCRA court credited the testimony of Detective Carroll, the officer who intercepted the evidence, and former Assistant District Attorney ("ADA") Gambardella, the ADA who was authorized to approve and monitor wiretap interceptions during the relevant time. PCRA Ct. Op. at 99. The PCRA court found that Petitioner's state-law challenges lacked merit and were not supported by any reliable evidence in the record. Id. at 98-108. Hence, trial counsel could not have been ineffective. Id.
The state court's conclusions render Petitioner's ineffective assistance claims untenable. First, this court is bound to accept the state court's conclusion that no violations of the state wiretap law occurred. See Bradshaw, 546 U.S. at 76. Second, this court is bound by the state court's unrebutted fact-findings that Petitioner's state-law challenges were unsupported by any reliable evidence in the record. See 28 U.S.C. § 2254(e)(1). Since counsel cannot be ineffective for failing to raise meritless claims, Johnson, 549 F.3d at 301, Petitioner's ineffective assistance claims lack merit.
5. Claims Four (d) and (h) Lack Merit
Petitioner claims that trial counsel was ineffective (d) for failing to listen to all of the wiretap tapes and (h) for failing to obtain additional wiretap discovery. Pet. at 14, Pet. Mem. at 124-25. The PCRA court rejected these claims on the grounds that Petitioner did not establish any discovery deficiencies, despite access to trial counsel's file and trial counsel acted reasonably in listening only to material portions of the wiretap evidence and relying upon an investigator to review the balance. PCRA Ct. Op. at 108. The state court further noted that it had found no violations of the state wiretap law. Id. at 109. For these reasons, the state court found that trial counsel did not render ineffective assistance. Id. at 110.
The state court's resolutions of Petitioner's ineffective assistance claims were reasonable. The state court noted that Petitioner presented no evidence that trial counsel should have sought additional discovery. An identical deficiency exists herein, because Petitioner does not identify any discovery that would have affected the voluntariness of his pleas. See Pet. Mem. at 124. Since claim four (h) is unsupported, it lacks merit. Further, since Petitioner could not establish any wiretap law violations, he clearly did not demonstrate any prejudice from trial counsel's decision to listen to only a portion of the wiretap evidence. Absent prejudice, Petitioner cannot prevail on claim four (d). See Strickland, 466 U.S. at 697.
III. CONCLUSION
Petitioner's claims are non-cognizable, barred by Stone v. Powell, 428 U.S. 465 (1976), procedurally defaulted or lack merit under the appropriate standard of review. Reasonable jurists would not debate the appropriateness of this court's procedural and substantive dispositions of his claims; therefore, a certificate of appealability should not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 16th day of July, 2019, for the reasons contained in the preceding report, it is hereby RECOMMENDED that all of Petitioner's claims be DISMISSED or DENIED, without an evidentiary hearing. Petitioner has neither demonstrated that any reasonable jurist could find this court's procedural rulings debatable, nor shown denial of any Constitutional rights; hence, there is no probable cause to issue a certificate of appealability.
Petitioner may file objections to this Report and Recommendation within fourteen (14) days of being served with a copy of it. See Local R. Civ. P. 72.1(IV). Failure to file timely objections may constitute a waiver of any appellate rights. It be so ORDERED.
/s/ Carol Sandra Moore Wells
CAROL SANDRA MOORE WELLS
United States Magistrate Judge