Opinion
Civil Action 20-cv-3722
08-13-2024
ANTHONY DARRELL HEATH, Petitioner, v. SUPERINTENDENT OF SCI MAHANOY, et al., Respondents.
REPORT AND RECOMMENDATION
LYNNE A. SITARSKI, UNITED STATES MAGISTRATE JUDGE.
Presently before the Court is a pro se petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, by Anthony Darrell Heath (“Petitioner”), an individual currently incarcerated at the State Correctional Institution - Frackville in Frackville, Pennsylvania. For the following reasons, this Court respectfully recommends that the petition be DENIED.
I. BACKGROUND
In its February 21, 2017 opinion affirming Petitioner's judgment of sentence, the Superior Court set forth the following facts, as well as the procedural history through that point:
On February 1, 2014, at approximately 9:30 a.m., police responded to a report of a burning body at the bottom of a roadside embankment in Jim Thorpe, Pennsylvania. Officers observed wire wrapped around the neck of the victim, tied tightly with knots and loops. Adjacent to the body, officers discovered a plastic Walmart shopping bag, which contained a receipt for a latch tote, lighter fluid, and a lighter, purchased earlier that same morning, at 5:40 a.m., from the Walmart located on Millcreek Road in Allentown, Pennsylvania. Officers were unable to identify the body.
Pennsylvania State Police Officers went to the Walmart on Millcreek Road and, using video surveillance, observed an individual, later identified as Appellant, purchase the items. In a
separate transaction, Appellant utilized a credit card belonging to Angela Steigerwalt to purchase a batting glove, t-shirts, underwear, a watch, and jeans. Further surveillance showed Appellant entering a vehicle, which was later determined to be Ms. Steigerwalt's, and leaving the parking lot. Officers went to Ms. Steigerwalt's address and encountered her husband, Gary Steigerwalt, who was on his way to report his wife missing. Mr. Steigerwalt provided the troopers with his wife's vehicle information and registration and informed them that it was equipped with an OnStar tracking system. Troopers contacted OnStar and, within ten minutes, located the vehicle in Kinston, North Carolina.
Police officers in North Carolina stopped the vehicle, which was being driven by Appellant, and took Appellant to the Kinston Department of Public Safety. There, Appellant was interviewed by Detective William Barss. The interview was audio and video recorded and Appellant was advised of his Miranda rights and signed a waiver form. During the interview
Detective Barss informed the Appellant that he wished to talk to him about his knowledge of Ms. Steigerwalt's vehicle, identification belonging to Ms. Steigerwalt and another individual, Dwight McCurry, found in the glove compartment of the vehicle, and his use of Ms.
Steigerwalt's credit card. The Appellant indicated that he had Ms. Steigerwalt's permission to use the car so he could visit his brother at Camp Lejeune. Further he indicated that he had spoken to Ms. Stiegerwalt that morning (February 2, 2014) and informed her that the car had a flat tire and she indicated that the Appellant had her permission to use her credit card to pay for repairs. The Appellant stated that he intended to return to Pennsylvania the next day. The Appellant indicated that he and Ms. Steigerwalt were good friends and that she had indicated that she was having problems in her relationship. He further indicated that Mr. McCurry was his roommate.
(Trial Court Opinion, 4/07/16, at 8).
The interview lasted one and a half hours. After the interview, Appellant read his responses, which had been transcribed by Detective Barss, and he signed his initials at the bottom of each page of notes. Appellant was taken to a local magistrate and charged with various crimes related to possession of the vehicle and credit cards. The magistrate indicated to Appellant that there was a hold placed on him because of a homicide investigation. Detective Barss did not discuss the homicide investigation with
Appellant, and when asked, he told Appellant that he did not know about it.
On February 4, 2014, Pennsylvania State Troopers Joseph Campbell, Nicholas De La Iglesia, Raymond Judge, and John Corrigan drove to North Carolina to interview Appellant. On February 5, 2014, Trooper Campbell interviewed Appellant concerning his possession of Ms. Steigerwalt's vehicle. Appellant was read his Miranda warnings and signed a written waiver of his rights. The interview was audio and video recorded. During the interview
Appellant stated that he and the victim had decided that they were tired of living in the Lehigh Valley and that he had gone to North Carolina to check the area out. The Appellant stated that he and Ms. Steigerwalt were engaged in a “friends with benefits” relationship and that she allowed him to use her car and credit card for the trip to North Carolina. Prior to the Appellant leaving the area, the Appellant told Trooper Campbell that he and the victim had sex in the Appellant's apartment in ... Allentown, Lehigh County, Pennsylvania.
The trooper then explained to the Appellant that the state police “had a pyramid of evidence” against him and the Appellant began to change his story. The Appellant stated that after he and the victim had had sex in his apartment, he blacked out. When he came to, he realized that the victim wasn't moving and he panicked. The Appellant then went in to “damage control” mode and proceeded to the Walmart on Millcreek Road in the victim's car. He bought the tote, lighter fluid and lighter using her cash and then bought other personal items using the victim's credit card. He stated he returned to his apartment and tied the victim up with speaker wire, wrapped her in a blanket, placed her in the tote, and put the tote in the car. The Appellant then stated that he drove to Jim Thorpe because he believed the area to be remote and wooded.
In Jim Thorpe, the Appellant stated that he slid the tote containing Ms. Steigerwalt's body down the embankment and lit the tote on fire. In the transition from the car to the embankment, the Appellant had dropped the keyless ignition starter (key fob) to the vehicle. The Appellant started to drive away, but was alerted that the key fob was missing. The Appellant returned to the scene, collected the key fob, and returned Ms. Steigerwalt's vehicle to
Allentown. He collected his belongings from his apartment, had one of the tires on the car repaired, and drove to North Carolina.
(Id. at 10-11).
Trooper Campbell's interview of Appellant lasted approximately two hours. During the interview, Trooper Campbell used the phrase “cooperate to graduate” and indicated that if Appellant was truthful, he would speak to the North Carolina authorities about dropping their case against him. At the beginning of the interview, Appellant indicated that he did not feel well, and Trooper Campbell responded that he looked okay. At one point Appellant asked for a break, and Trooper Campbell replied that he seemed okay and did not give him a break. Although the interview started with questions about the stolen vehicle, when the focus of the interview turned to Ms. Steigerwalt's death, Appellant was not reissued Miranda warnings and was not told that he was a suspect.
On February 6, 2014, Trooper Judge retrieved Appellant from the North Carolina jail, introduced himself as a Pennsylvania State Trooper, and, together with Trooper Campbell, began to drive Appellant to Pennsylvania in a Ford sedan. Trooper Judge and Appellant sat in the rear passenger compartment. He informed Appellant that they were bringing him to Pennsylvania regarding the theft of Ms. Steigerwalt's vehicle. Appellant asked if he was under arrest for her death, to which Trooper Judge responded that he was not currently under arrest. Trooper Judge did consider him a suspect in the homicide. Trooper Judge then gave Appellant his Miranda warnings and proceeded to interview him for the first three and one half to four hours of the journey. The interview was neither audio nor video recorded. Trooper Judge indicated that the tone was cordial.
During the interview, Appellant's answers were consistent with those he gave to Trooper Campbell, indicating that he “blacked out.” When Trooper Campbell stopped the vehicle to get gas, and Trooper Judge was alone with Appellant, Appellant told Trooper Judge that he would not fight the charges. Trooper Judge told Appellant that he did not believe his original story and that this was the time to come clean. Trooper Campbell arrived and pulled the vehicle into a parking spot. Appellant asked to pray and the troopers obliged. When he finished, they continued the interview but did not reissue Miranda warnings.
Appellant told the officers that he and Ms. Steigerwalt had a sexual relationship and that she had gone to his apartment in Allentown
after work. They had sex, after which they discussed upcoming plans, and Ms. Steigerwalt told Appellant that she would not drive him to a custody hearing involving his son. Appellant became enraged and grabbed a stereo wire and used it to strangle Ms. Steigerwalt from behind. Appellant stated that he strangled her for what felt like ten minutes, until she was black and blue in the face and he could no longer recognize her. He stopped strangling her when he realized she was dead.
On February 7, 2014, Appellant was charged with the homicide and related offenses. On June 4, 2014, Appellant filed a motion to suppress statements he made to law enforcement. The court conducted a pre-trial motion hearing on September 5 and 10, 2014. On October 22, 2014, the court issued an order and opinion denying Appellant's motion. On December 17, 2014, Appellant filed a pro se motion to waive counsel. The court conducted a hearing on January 15, 2015, after which it determined that Appellant had waived his right to counsel knowingly, intelligently, and voluntarily. The court withdrew the representation of the public defender's office, but appointed the office as standby counsel for Appellant.
A jury trial commenced on June 15, 2015, where Appellant represented himself. At trial, the Commonwealth introduced testimony from Mr. Steigerwalt, who explained that the victim's vehicle utilized a key fob instead of an actual key to operate it, and that both he and the victim had a key fob. Mr. Steigerwalt produced his key fob, which the Commonwealth offered into evidence. Appellant, acting as his own counsel, objected to admission of the key fob explaining that he had not seen it and did not verify it. The court overruled the objection and received the key fob into evidence.
On June 23, 2015, a jury convicted Appellant of first-degree murder, receiving stolen property, access device fraud, abuse of a corpse, and tampering with or fabricating evidence. On July 29, 2015, Appellant was sentenced to life without parole, followed by an aggregate term of not less than eight nor more than sixteen years of incarceration. (See N.T. Sentencing, 7/29/15, at 35-37).
On August 17, 2015, at Appellant's request, the court appointed counsel to represent him for his appeal. Appellant filed a timely notice of appeal on August 27, 2015.
Appellant raises two questions on appeal.
[1.] Whether the trial court erred in [sic] when it denied
[Appellant's] pre-trial motion to suppress statements given during a custodial interrogation?
[2.] Whether the trial court erred in permitting testimony regarding a key [fob] over [Appellant's] objections at trial?
(Appellant's Brief, at 6).Commonwealth v. Heath, No. 2577 EDA 2015, 2017 WL 678825, at *1-4 (Pa. Super. Ct. Feb. 21, 2017) (footnotes omitted) (alterations in original). The Superior Court rejected both claims on the merits. Id. at *4-7. On August 30, 2017, the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal. Commonwealth v. Heath, 161 A.3d 382 (Pa. 2017) (table opinion).
In its May 13, 2020 opinion affirming the denial of Petitioner's first petition under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. § 9541 et seq., the Superior Court set forth the following procedural history relevant to that filing:
Appellant timely filed the instant pro se PCRA petition on August 7, 2018. The court appointed PCRA counsel, and on November 7, 2018, counsel filed a motion to withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The court issued notice, on November 26, 2018, of its intent to dismiss the petition without a hearing under Pa.R.Crim.P. 907, and permitted PCRA counsel to withdraw. Appellant responded to the Rule 907 notice on December 21, 2018. The court formally dismissed the petition on January 11, 2019. On January 29, 2019, Appellant timely filed a pro se notice of appeal. Appellant also filed a voluntary concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), on March 28, 2019.
Appellant raises the following issues on appeal:
[Appellant] was deprived of a meaningful and fair jury trial. He was further deprived of due process, fundamental fairness and equal protection of both state and federal process principles [because] he could not afford the cost of subpoena process, a financial impediment beyond his control. [Appellant] was further deprived of a meaningful
and fair defense. Further, [Appellant] was also subjected to an illegal search and seizure of his actual person due to.. .misleading false reports of a stolen vehicle. Several acts of prosecutorial misconduct, or securing and presenting perjured testimony as well as discovery due process and rule violations. Illegal sentencing issues. Trial court abuse of discretion issues regarding its failure and refusal to recuse. Legal causation issues regarding cause of death and failure and refusal of trial judge to present [a] defense jury instruction. Nunc pro tunc issues of law regarding court appointed direct appellate counsel. All court appointed counsels abandoned [Appellant].
(Appellant's Brief at 17).Commonwealth v. Heath, No. 356 EDA 2019, 2020 WL 2465647, at *1-2 (Pa. Super. Ct. May 13, 2020) (unnecessary capitalization omitted) (alterations in original).
Relying on Pennsylvania Rule of Appellate Procedure 2119(a), requiring an appellant to divide his argument into parts corresponding to the claims raised, with each part set off and supported by pertinent discussion and citations to authority, the Superior Court found that Petitioner had waived all claims. Id. at *2. Petitioner's subsequent petition for allowance of appeal to the Pennsylvania Supreme Court was denied on or about June 3, 2020. See Commonwealth v. Heath, 356 EDA 2019, at 9 (Pa. Super. Ct.), available at https://uisportal.pacourts.us/Report/PacDocketSheet?docketNumber=356%20EDA%202019&dnh=9wN7S%2FeHxH0zO7maWgEi%2FQ%3D%3D (last visited Apr. 6, 2023).
The Court further found that, even if Petitioner had not waived his claims, they would fail on the merits for the reasons identified by the PCRA court. Heath, 2020 WL 2465647, at *3-4.
The tortured procedural history following the conclusion of Petitioner's first PCRA petition was summarized in the Superior Court's May 4, 2022 opinion in this matter:
Appellant . . . filed his next PCRA petition on June 1, 2020, raising a bevy of claims ranging from challenges to the criminal information to his sentence in the context of ineffective assistance
of trial and PCRA counsel. See generally PCRA Petition, 6/1/20. Regarding the PCRA court's jurisdiction, Appellant invoked the newly discovered facts timeliness exception codified at 42 Pa.C.S. § 9545(b)(1)(ii). Id. at Addendum page 1. After a dismissal and a reinstatement of the petition, the PCRA court issued notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition without a hearing as untimely. Upon consideration of Appellant's response to the notice, the PCRA court concluded that its untimeliness determination had been in error. However, it issued a new Rule 907 notice of its intent to dismiss the petition, indicating that the petition lacked merit because Appellant failed to establish the necessary elements of ineffective assistance of counsel. After being granted an extension of time to respond, Appellant filed a response to the new Rule 907 notice on December 4, 2020.
Therein, Appellant, inter alia, further developed his claims that prior counsel had provided ineffective assistance. This response was initially docketed as “Pro Se Correspondence” on December 14, 2020, but later docketed as a new PCRA petition on January 14, 2021, and filed on January 27, 2021.
In the meantime, Appellant also filed a motion for issuance of a subpoena duces tecum directing the Clearfield County prothonotary and clerk of courts to provide him with the docket and various filings related to Elmer Herman Ulbrick, whose flat term-of-years sentence for second-degree murder was affirmed in 1975 upon presumption that the minimum sentence was one day. See Commonwealth v. Ulbrick, 341 A.2d 68, 69 (Pa. 1975).
Appellant subsequently filed a modified motion for the subpoena, reportedly upon the direction of the court administrator, requesting that the PCRA court direct the production of the Ulbrick documents.
On March 12, 2021, the PCRA court entered the three orders at issue in this appeal. One denied and dismissed Appellant's June 1, 2020 PCRA petition upon consideration of the Rule 907 notice and Appellant's alleged failure to respond to it. Another dismissed the January 14, 2021 PCRA petition, which was actually the supposedly-missing response to the Rule 907 notice filed on December 14, 2020, on the basis that it was prematurely filed while the June 1, 2020 petition was still pending. The third order denied Appellant's motion for a subpoena duces tecum because Appellant failed to present the exceptional circumstances required to secure discovery in a PCRA proceeding.
Appellant timely appealed from all three March 12, 2021 orders. The PCRA court ordered Appellant to file a Pa.R.A.P. 1925 concise statement of errors complained of on appeal, to which
Appellant did not file a response, prompting the PCRA court to opine that Appellant waived his appellate issues. Appellant filed an application for relief in this Court documenting that the Rule 1925(b) order had not been properly served upon him. We therefore remanded to allow Appellant to file and serve his concise statement on the PCRA judge and for the PCRA court to author a supplemental opinion. On September 21, 2021, the PCRA court transmitted the record back to this Court indicating that Appellant again had failed to file the Rule 1925(b) statement. Appellant filed another application for relief in this Court indicating that he had timely filed his concise statement by depositing it with prison authorities for mailing on August 12, 2021, and requesting that we remand for, inter alia, an opportunity to hand the PCRA judge a copy of the statement. This Court denied the application without prejudice for Appellant to raise the issues in his brief.
Appellant, who refers to himself in the first-person plural, raises the following issues, which we have reordered and numbered for ease of disposition:
1. Refusal of the clerk of judicial records of Lehigh County to file our Sunday 15 of August 2021 pro se Pa.R.A.P 1925(b) statement;
2. Refusal of the judiciary to timely serve 1925(b) statement;
3. The [PCRA] court deprived us of due process of law of the 14th Amendment of the United States constitution by failing to read our response to the court[']s initial 907 order;
4. No objection from the attorney for the Comm[o]nwealth;
5. We were not constitutionally or judicially served with murder in the first degree criminal charge;
6. We were not provided with defense counsel with regard to murder in the first degree criminal charge;
7. For a conviction of 18 Pa.C.S. § 2502(a) the court exceeded its statutory jurisdiction for sentence for first degree felonies at 18 Pa.C.S. § 1103(1);
8. Deprived of liberty without due process when trial court denied our oral request for hearing on our ability to pay court cost and fines;
9. Deprived of liberty without due process of law when the Commonwealth refused to d[i]sclose (a) “crime-lab-report” [regarding] wire [removed] from [the] deceased'[s] neck and (b) scientific authority relied upon by forensic expert Michael W. Johnson;
10. Miranda v. Arizona, 384 U.S. 436 (1966)[,] was ineffective to protect against my serious medical mental health crisis.
11. The [PCRA] court deprived us of due process of law of the 14th Amendment of the United States constitution by obstructing our ability to perfect our 2d PCRA motion.
Appellant's brief at 5-6 (cleaned up).Commonwealth v. Heath, No. 871 EDA 2021, 2022 WL 1413065, at *1-3 (Pa. Super. Ct. May 4, 2022) (footnotes omitted) (alterations in original).
Regarding Petitioner's first two claims the Superior Court granted him “relief in that [it did] not deem any of his issues waived on the basis of Rule 1925(b)(4)(vii).” Id. at *3 (citations omitted). It rejected his third claim on the basis that any error by the PCRA court in treating his “response to the second Rule 907 notice, which merely amplified the substantive claims raised in the pending June 1, 2020 PCRA petition, as a new PCRA petition” was harmless because, as the PCRA court had originally determined, that earlier filed petition was itself untimely. Id. at *3-5. The conclusion that the underlying PCRA petition was untimely also led the Superior Court to determine that it lacked jurisdiction over Petitioner's substantive claims, four through ten. Id. at *6. Finally, the Superior Court rejected Petitioner's eleventh claim regarding the PCRA court's refusal to issue a subpoena duces tecum. Id.
On June 3, 2020, two days after the filing of his second PCRA petition, Petitioner filed, in the United States District Court for the Eastern District of North Carolina, the instant habeas petition as well as a motion to stay the federal petition pending resolution of the state proceedings. (Hab. Pet., ECF No. 1, at 31; Mot. to Stay, ECF No. 4, at 3).The habeas petition raises the following claims (paraphrased for clarity):
Pennsylvania and federal courts employ the prisoner mailbox rule, pursuant to which pro se filings are deemed filed when given to prison officials for mailing. See Perry v. Diguglielmo, 169 Fed.Appx. 134, 136 n.3 (3d Cir. 2006) (citing Commonwealth v. Little, 716 A.2d 1287 (Pa. Super. Ct. 1998)); Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998); Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa. Super. Ct. 2001). In this case, Petitioner certified that he gave his habeas petition and motion to stay to prison officials on June 3, 2020, and they will be deemed filed on that date. (Hab. Pet., ECF No. 1, at 31; Mot. to Stay, ECF No. 4, at 3).
Petitioner's habeas petition is interspersed with handwritten supplemental pages using a unique page numbering system. Therefore, for the sake of clarity, this Court will refer to the page number as listed in ECF when citing to Petitioner's petition.
(1) Petitioner was obstructed in his right to subpoena key mitigating and character witnesses by his indigent status;
(2) The trial court erred by depriving Petitioner of his right to present a meaningful and fair defense;
(3) The trial judge erred by refusing to recuse herself after having participated in the November 6, 2014 prosecutorial plea hearing;
(4) Petitioner was unconstitutionally seized in violation of the 4th and 14th Amendments to the United States Constitution;
(5) The Commonwealth failed to disclose exculpatory physical evidence;
(6) Petitioner's rights to due process and a fair trial were violated when the Commonwealth secured the perjured testimony of Pennsylvania State Police Trooper Raymond Judge;
(7) Petitioner's right to due process was violated when forensic pathologist Dr. Michael W. Johnson testified at trial in conflict with the Pennsylvania Rules of Evidence; and
(8) The trial court imposed an illegal sentence by sentencing Petitioner to life without parole after refusing to instruct the jury on involuntary manslaughter.(Hab. Pet., ECF No. 1, at 9-39).
The simultaneously filed motion to stay lists eight additional grounds for relief (recited verbatim):
Petitioner uses an inconsistent lettering system to refer to these claims. For the sake of clarity, this Court will number them starting from the previous eight included in Petitioner's habeas petition.
(9) [Petitioner's] convictions of murder in the first degree and subsequent sentence of life without the possibility of parole stands in violation of his Fourteenth Amendment right to equal protection of law where he was ambushed at trial with a “new” criminal offence.
(10) The sentencing court had no statutory jurisdiction to impose a mandatory life sentence, consequently such sentence stands in total violation of equal protection of law of the Fourteenth Amendment of the United States Constitution.
(11) The court ordered [Petitioner] to pay a fine of $15,548.80 which constitutes another illegal aspect of his sentencing schedule warranting federal constitutional remedy.
(12) The Commonwealth violated [Petitioner's] right to due process, fundamental fairness and equal protection of law when it refused to make available to him the Pennsylvania State Police Crime Lab report regarding the wire from around [the Victim's] neck.
(13) Conscurrent [sic] issue to be adjudicated: this subsection shall and will be cited as Claim XX this claim can be traced to [Petitioner's] pro se April 2, 2015 motion to compel discovery pursuant to Rule 573A under heading scientific and expert information paragraphs 26-31.
(14) Failure to prevent and [sic] abuse of power by the law enforcement agents who took such statements who knew or reasonable [sic] should have known that [Petitioner's] health was not in a consentingly state of mind when he waived such waiver of rights contract due to the demenished [sic] legal capacity.
(15) That pretrial defense counsel failed to provide to the court meaningful evidence in support of their motion to [throw out] such out of court statements. Counsel simply filed conclusory arguments when evidence was readily abailable [sic] to them in support of such motion such as and not limited to [Petitioner's] mental health records of which he was under current care of state paid mental health provider.
(16) The trial court abused its power/discretion when it refused to reopen the issue of whether such statements were taken lawfully or in violation of [Petitioner's] health federal and state constitutional right et al.(Mot. to Stay, ECF No. 4, at 2-3) (alterations added).
On July 29, 2020, this case was transferred to this district. (Order, ECF No. 6). On December 15, 2020, the Honorable Judge John M. Gallagher referred this case to me for a Report and Recommendation. (Order, ECF No. 12). On January 14, 2021, the Commonwealth filed its response requesting that the Petition be denied or dismissed, or in the alternative that Petitioner's request for a stay be granted during the pendency of his state collateral review. (Resp., ECF No. 19). On June 8, 2021, I issued a Report and Recommendation recommending that the case be stayed pending the resolution of state court proceedings, which was approved and adopted by the District Court on June 30, 2021. (R & R, ECF No. 32; Order, ECF No. 37). Upon a motion by Petitioner, the District Court, on June 13, 2022, lifted the stay and referred the matter to me again for another Report and Recommendation. (Mot. to Lift Stay, ECF No. 44; Order, ECF No. 51). On August 23, 2022, Petitioner filed a “Notice of Defense”arguing that the Commonwealth was estopped from asserting a failure to the claims set forth in his second PCRA petition. (Not. of Def., ECF No. 62, at 2). The Commonwealth filed its response to the habeas petition on September 15, 2022. (Resp., ECF No. 66). On October 7, 2022, Petitioner filed a “Pro[ ]Se Motion Seeking Leave to Respond to Respondents['] Response[ ]and Pro Se Motion for Leave to Amend Writ,” along with a motion to correct a typographical error therein, which the Court accepted as his reply, as amended, to the Commonwealth's response. (Mot. to Correct, ECF No. 73; Mot. to Respond, ECF No. 74; Order, ECF No. 75). On October 18, 2022, Petitioner filed a “Motion for Leave to Enlarge Response,” which the Court accepted as a supplemental reply. (Mot. to Enlarge, ECF No. 76; Order, ECF No. 80). Accordingly, the matter has been fully briefed and is ripe for disposition.
This filing was part of a larger motion for judgment on the pleadings and other relief, which the Court denied on February 14, 2023. (Order, ECF No. 86). However, in that Order the Court indicated that it would consider Petitioner's Notice of Defense along with his other briefing in support of his habeas petition. (Id.).
II. APPLICABLE LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) grants to persons in state or federal custody the right to file a petition in a federal court seeking the issuance of a writ of habeas corpus. See 28 U.S.C. § 2254. Pursuant to the AEDPA:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254(b)(1). The exhaustion requirement is rooted in considerations of comity, to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509, 518 (1982); Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007); Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
Respect for the state court system requires that the habeas petitioner demonstrate that the claims in question have been “fairly presented to the state courts.” Castille, 489 U.S. at 351. To “fairly present” a claim, a petitioner must present its “factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts). A state prisoner exhausts state remedies by giving 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). In Pennsylvania, one complete round includes presenting the federal claim through the Superior Court on direct or collateral review. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). The habeas petitioner bears the burden of proving exhaustion of all state remedies. Boyd v. Walmart, 579 F.3d 330, 367 (3d Cir. 2009).
If a habeas petition contains unexhausted claims, the federal district court must ordinarily dismiss the petition without prejudice so that the petitioner can return to state court to exhaust his remedies. Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). However, if state law would clearly foreclose review of the claims, the exhaustion requirement is technically satisfied because there is an absence of state corrective process. See Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002); Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000). The failure to properly present claims to the state court generally results in a procedural default. Lines, 208 F.3d at 683. The doctrine of procedural default bars federal habeas relief when a state court relies upon, or would rely upon, “‘a state law ground that is independent of the federal question and adequate to support the judgment'” to foreclose review of the federal claim. Nolan v. Wynder, 363 Fed.Appx. 868, 871 (3d Cir. 2010) (not precedential) (quoting Beard v. Kindler, 558 U.S. 53, 53 (2009)); see also Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007) (citing Coleman, 501 U.S. at 730).
The requirements of “independence” and “adequacy” are distinct. Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004). State procedural grounds are not independent, and will not bar federal habeas relief, if the state law ground is so “interwoven with federal law” that it cannot be said to be independent of the merits of a petitioner's federal claims. Coleman, 501 U.S. at 739-40. A state rule is “adequate” for procedural default purposes if it is “firmly established and regularly followed.” Johnson v. Lee, __ U.S. __, 136 S.Ct. 1802, 1804 (2016) (per curiam) (citation omitted); see also Kellam v. Kerestes, No. 13-6392, 2015 WL 2399302, at *4 (E.D. Pa. May 18, 2015) (citations omitted). These requirements ensure that “federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule,” Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005), and that “review is foreclosed by what may honestly be called ‘rules' . . . of general applicability[,] rather than by whim or prejudice against a claim or claimant.” Id. at 708.
Like the exhaustion requirement, the doctrine of procedural default is grounded in principles of comity and federalism. As the Supreme Court has explained:
In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).
Federal habeas review is not available to a petitioner whose constitutional claims have not been addressed on the merits by the state courts due to procedural default, unless such petitioner can demonstrate: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 451; Coleman v. Thompson, 501 U.S. 722, 750 (1991). To demonstrate cause and prejudice, the petitioner must show some objective factor external to the defense that impeded counsel's efforts to comply with some state procedural rule. Slutzker, 393 F.3d at 381 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To demonstrate a fundamental miscarriage of justice, a habeas petitioner must typically demonstrate actual innocence. Schlup v. Delo, 513 U.S. 298, 324-26 (1995).
III. DISCUSSION
As noted, the Superior Court dismissed Petitioner's first PCRA petition on the basis of state Appellate Rule 2119(a), pertaining to the structure of and support for the argument in the petition. Heath, 2020 WL 2465647, at *1-2 (“Appellant's handwritten pro se brief consists of over fifty pages of repetitive, rambling, and incoherent argument, mixed with citations to general case law. Appellant's failure to adequately develop his issues on appeal prevents meaningful review and constitutes waiver of his claims.”) (citation omitted). Courts have found this rule to be an independent and adequate state grounds for dismissal. See, e.g., Alston v. Gilmore, No. 146439, 2016 WL 7493979, at *11 (E.D. Pa. Aug. 16, 2016); Bernard v. Overmyer, No. 14-115, 2016 WL 3268858, at *6 n.5 (W.D. Pa. June 15, 2016); Ford v. Tennis, No. 09-5669, 2010 WL 5588672, at *8-9 (E.D. Pa. Aug. 19, 2010), report and recommendation adopted, No. 09-5669, 2011 WL 145018 (E.D. Pa. Jan. 14, 2011); Branch v. Tennis, No. 07-3532, 2009 WL 1089560, at *9-10 (E.D. Pa. Apr. 22, 2009); Kirnon v. Klopotoski, 620 F.Supp.2d 674, 696 (E.D. Pa. 2008). Further, the Superior Court dismissed Petitioner's second PCRA petition as untimely under 42 Pa.C.S. § 9545(b). Heath, 2022 WL 1413065, at *1. Like Rule 2119(a), the PCRA statute of limitations is an “adequate” and “independent” state procedural rule that is consistently applied. Doctor v. Walters, 96 F.3d 675, 684 (3d Cir. 1996) (“A state rule is adequate only if it is ‘consistently and regularly applied.'”) (quoting Johnson v. Mississippi, 486 U.S. 578, 587 (1988)); see also Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001); Smith v. Luther, No. 18- 200, 2018 WL 3581140, at *3 (E.D. Pa. June 22, 2018) (finding that the claims were “procedurally defaulted, because the PCRA statute of limitations has expired for them.”). Accordingly, all Petitioner's claims are procedurally defaulted.
Petitioner disputes this fact in his Notice of Defense, in which he posits that the government is judicially estopped from invoking the procedural default doctrine in federal court when its prior misrepresentations in state court led to the default. (Not. of Def., ECF No. 62, at 2 (citing Whaley v. Belleque, 520 F.3d 997, 1001-02 (9th Cir. 2008))). Regarding the alleged misrepresentations, he argues:
Whereas to the extent of judicial estoppel for any claim that petitioner failed to exhaust state court remedies specifically relating to his 2nd PCRA, petitioner relied on the trial/PCRA court's determination that he could not file a subsequent petition until the Superior Court ruled on his 1st PCRA petition appeal (yet the Superior Court stated that the 2nd PCRA was not filed timely), and that petitioner's request to the Superior Court for permission (leave) of court to remand to the state PCRA court so it could correct its dismissal of his 1st PCRA petition on the grounds he failed to respond yet treating his timely response as a second PCRA[.](Not. of Def., ECF No. 62, at 2 (cleaned up)).
Petitioner's argument is far from a model of clarity. However, liberally construing his pro se filing, he seems to assert that he would have timely exhausted the claims in his June 1, 2020 PCRA petition if the state courts had not interfered with his ability to do so, first by the PCRA court's refusal to consider the June 1, 2020 or any other PCRA petition while the appeal of his earlier PCRA petition filed August 7, 2018, remained pending, and second by the Superior Court's denial of his request to remand the June 1, 2020 petition for the PCRA court to consider the December 4, 2020 filing as the (purportedly missing) response to the second Rule 907 notice instead of another PCRA petition. (Not. of Def., ECF No. 62, at 2; see also Heath, 2022 WL 1413065, at *1-3).
Turning to the first alleged instance of interference, the PCRA court's June 23, 2020 Order dismissing the June 1, 2020 PCRA petition as premature, the court explained: “When an appellant's PCRA appeal is pending before an appellate court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of such time for seeking such review.” (June 23, 2020 PCRA Ct. Order, ECF No. 56-4, at 36 (citing Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000))). However, as the Superior Court has explained, Lark does not constitute governmental interference with a PCRA petitioner's ability to timely pursue his state remedies, such that the PCRA's statute of limitations is tolled:
The Order refers to “Petitioner's Second pro se PCRA, filed on June 15, 2020,” (June 23, 2020 PCRA Ct. Order, ECF No. 56-4, at 36), but this is the same petition referred to herein and in the Superior Court opinion as the June 1, 2020 petition. The electronically filed state court record contains a petition bearing the earlier date, but none bearing the latter. (June 1, 2020 PCRA Pet., ECF No. 56-4, at 8-31). Conversely, the state court docket lists the filing date as June 15, rather than June 1, 2020. Commonwealth v. Heath, CP-39-CR-1174-2014 (Lehigh Com. Pl. Ct.) (ECF No. 56-1, at 41). Although not indicated in the state court record or the docket, the discrepancy apparently stems from the fact that the petition was dismissed but then reinstated after the PCRA court reversed its initial decision that the petition was untimely. See Heath, 2022 WL 1413065, at *1.
Davis argues that the interference by government officials exception to the timeliness requirement, 42 Pa.C.S.A. 9545(b)(1)(i), applies to this matter. He bases his argument on the Lark prohibition of the filing of a second PCRA petition while an appeal from a prior PCRA petition is pending, suggesting that the prohibition constitutes illegal governmental interference. We reject this argument. Lark clarified the procedure to be followed for the filing of a second or subsequent PCRA petition when an appeal from a first PCRA petition is pending. Lark was clear in explaining that a second petition following this procedure must plead and prove one of the three limited exceptions to the one-year time bar, including interference by governmental officials. Id., 42 Pa.C.S.A. § 9545(b)(1)(i). This procedure, which provides a benefit to convicts seeking to file subsequent PCRA petitions, cannot be deemed to be governmental interference within the meaning of the first exception to the timeliness requirement of the PCRA.Commonwealth v. Davis, 816 A.2d 1129, 1134 (Pa. Super. Ct. 2003).
Regarding the second instance of alleged governmental interference, the Superior Court's refusal to remand the June 1, 2020 petition for the PCRA court to correct its dismissal based on the supposedly unanswered Rule 907, the Superior Court explained that the PCRA court's ruling, although erroneous, was harmless because the June 1, 2020 petition was untimely, as the PCRA court had initially ruled. Heath, 2022 WL 1413065, at *3, 5. Thus, it was his own untimely filing of that petition, not the Superior Court's denial of his request to remand it, that prevented him from exhausting the claims contained therein.
Petitioner next contends, in the document construed by this Court as his reply in support of his habeas petition, that his claims are not procedurally defaulted because Pennsylvania Supreme Court Order Number 218 rendered review from that court “unavailable” for purposes of exhausting state court remedies. (Mot. to Respond, ECF No. 74, at 3-4). He points out, correctly, that as a result of this Order petitioners no longer have to seek review from Pennsylvania's highest court to have fully exhausted their claims at the state level. (Id. at 4). But Petitioner's procedural default is not based upon any failure to petition the Pennsylvania Supreme Court for further review, but his failure to develop and support the arguments in his first PCRA petition, Pa. R.A.P. 2119(a), and to timely file his second petition. 42 Pa.C.S. § 9545(b). As to the first petition, he contends that he presented the issues “as best he could,” including by attempting to supplement the petition, but the fact remains that the state courts dismissed this petition on the basis of Rule 2119(a), an independent and adequate state ground not subject to second-guessing by this Court. See, e.g., Alston, 2016 WL 7493979, at *11.
Petitioner's additional, contrary reading of Order Number 218, that it prohibits a PCRA petitioner from seeking review by that court, is not correct. (See Mot. to Respond, ECF No. 74, at 4, 6, 8). In fact, the Order merely states that petitioners “shall not be required” to petition the Pennsylvania Supreme Court for allowance of appeal, although it clearly contemplates that they may continue to do so. In Re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No.1 (per curiam) (May 9, 2000) (noting that review by the Pennsylvania Supreme Court will be granted “when there are special and important reasons therefor”).
As to his second petition, he argues that the PCRA court did not provide him an opportunity to cure the defects therein, but this argument ignores the fact the Superior Court ultimately found the petition to be untimely in any event. Smith, 2018 WL 3581140, at *3. Apparently anticipating this hurdle, he similarly complains that he was not afforded an opportunity “to cure the alleged err[or] of timel[i]ness,” but it is unclear why he believes he was entitled to such an opportunity or how he would have cured the timing defect.(Mot. to Respond, ECF No. 74, at 6). Specifically, he suggests that he could have remedied the untimeliness of the petition through the submission of a Pennsylvania Rule of Appellate Procedure 1925(b) statement of errors complained of on appeal, but the Superior Court specifically refused to deem any issues waived on that basis, while nonetheless finding the second PCRA petition untimely. Heath, 2022 WL 1413065, at *3. None of Petitioner's arguments change the fact that 42 Pa. C.S. § 9545(b) was an independent and adequate basis for the Superior Court to reject his second PCRA petition, thus resulting in a procedural default. Heath, 2022 WL 1413065, at *1.
Notably, the Superior Court considered, and rejected, the possibility of later alternative PCRA start dates applicable to the second PCRA petition. Heath, 2022 WL 1413065, at *4-5.
Petitioner's final argument in his reply is that he was only convicted because he was not permitted to subpoena “mitigating and character defense witnesses ....” (Mot. to Respond, ECF No. 74, at 7). Petitioner does not state when he attempted to subpoena these individuals or otherwise support his argument with citations to the state court record, but the only references to a subpoena request on his state court docket are from December 28, 2020, and February 23, 2021, after the conclusion of his trial and direct appeal and during the pendency of PCRA proceedings. Heath, CP-39-CR-1174-2014 (ECF No. 56-1, at 42). However, “habeas proceedings are not the appropriate forum for [a petitioner] to pursue claims of error at the PCRA proceeding.” Holland v. Folino, No. 13-6623, 2015 WL 1400660, at *1 (E.D. Pa. Mar. 26, 2015) (“Errors alleged during state collateral review are non-cognizable on federal review.”). Accordingly, this claim is non-cognizable.
Petitioner further contends that he cannot “demonstrate his innocence other than via his obstructed witness subpoenas ....” (Mot. to Respond, ECF No. 74, at 7). To the extent that he intends to assert actual innocence, such a claim “requires [a] 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.” Schlup, 513 U.S. at 324. Here, Petitioner only identifies one of the proffered witnesses by name and sets forth no proposed testimony, let alone any affidavits or other evidence suggestive of potentially exculpatory firsthand accounts.
In his sur-reply, Petitioner attempts to demonstrate cause and prejudice, or alternatively a miscarriage of justice, to circumvent his procedural default. Regarding cause and prejudice, Petitioner repeats his contentions, already rejected above, that in pursuing his PCRA rights pro se he attempted to navigate the Pennsylvania Rules of Appellate Procedure “to the best of his understanding and abilit[ies],” and that the Superior Court wrongfully rejected his request to cure the defects in his first petition. (Mot. to Enlarge, ECF No. 76, at 2-3; see also id. at 7-8 (applying these same contentions to the unexhausted claims raised in his motion to stay)). Specifically, he claims that his procedural default was caused by, and he suffered prejudice from, the Superior Court's failure to provide a briefing template, although he also acknowledges that the court “does not ha[ve] to have a templ[ate]/format for filing a pro se brief ....” (Id.). Nonetheless, as noted, the appellate rules upon which the state courts relied in rejecting his PCRA petitions, including Rule 2119(a) governing the structure of such a petition, are independent and adequate grounds for dismissal that federal habeas courts sitting in review cannot disturb. Doctor, 96 F.3d at 684; Bernard, 2016 WL 3268858, at *6 n.5; Ford, 2010 WL 5588672, at *8-9.
Regarding the purported miscarriage of justice excusing his procedural default, he likens the Superior Court's determination that he waived his issues in his first PCRA appeal for failure to follow Pa. R.A.P. 2119(a) to a defendant waiving his appellate rights pursuant to a plea agreement. (Mot. to Enlarge, ECF No. 76, at 4-6 (citing United States v. Wilson, 429 F.3d 455 (3d Cir. 2005); United States v. Khattak, 273 F.3d 557 (3d Cir. 2001))). Under these cases, a knowing and voluntary waiver of appellate rights is valid unless it would “work a miscarriage of justice.” See Khattak, 273 F.3d at 563 (endorsing the First Circuit's “guidelines” from United States v. Teeter, 257 F.3d 14 (1st Cir. 2001) when considering whether to vacate “an otherwise valid waiver of appeal”). He concedes that he cannot meet Schlup's requirement that he show “actual innocence” by pointing to new, reliable evidence, see 513 U.S. at 324-26, but he nonetheless maintains that he can show a miscarriage of justice under Khattak because of the ineffectiveness of all prior counsel, his confusion about state appellate rules, the denial of his requested subpoenas, and the destruction of “work product” by prison officials. (Mot. to Enlarge, ECF No. 76, at 6-7). However, Petitioner's cited cases do not apply here, where waiver occurred in a PCRA proceeding as a result of Petitioner's failure to follow appellate rules rather than voluntarily as part of a plea agreement. Because Petitioner concedes, as he must, that he has no new, reliable evidence of actual innocence under Schlup, his procedural default remains unexcused.
Petitioner again blames his inability to offer evidence of his actual innocence upon the denial of his requests for subpoenas. (Mot. to Enlarge, ECF No. 76, at 5).
Finally, in the “Relief Requested” section of his filing, Petitioner appears to invoke Martinez v. Ryan, 566 U.S. 1 (2012) in an attempt to excuse his procedural default. (Mot. to Enlarge, ECF No. 76, at 8 (citing discussion of Martinez in Richardson v. Superintendent Coal Twp. SCI, 905 F.3 750, 762 (3d Cir. 2018))). Martinez recognized a “narrow exception” to the general rule that attorney errors in collateral proceedings do not establish cause to excuse a procedural default, holding that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9. To successfully invoke the Martinez exception, a petitioner must satisfy two factors: that the underlying, otherwise defaulted, claim of ineffective assistance of trial counsel is “substantial,” meaning that it has “some merit,” id. at 14; and that petitioner had “no counsel” or “ineffective” counsel during the initial phase of the state collateral review proceeding. Id. at 17; see also Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014). Both prongs of Martinez implicate the controlling standard for ineffectiveness claims first stated in Strickland v. Washington: (1) that counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. 466 U.S. 668, 687 (1984).
Petitioner fails to establish the first prong under Martinez, that the underlying claim of trial counsel ineffectiveness has “some merit.” 566 U.S. at 14. In fact, Petitioner, who represented himself at trial, see Heath, 2017 WL 678825, at *4, identifies no underlying trial counsel ineffectiveness claim the procedural default of which is to be excused under Martinez. Instead, he complains that he was deprived of the ability to file post-sentence motions because prison officials did not allow him to access legal materials, but this claim has nothing to do with the ineffectiveness of (nonexistent) trial counsel. (Mot. to Enlarge, ECF No. 76, at 9). Petitioner acknowledges that the trial court subsequently granted his motion to appoint post-sentencing and direct appeal counsel, although he maintains that counsel was ineffective for failing to preserve his post-sentence issues or perfect his direct appeal. (Id. at 9-10). He maintains that PCRA counsel, in turn, was ineffective for failing to raise post-sentencing/direct appeal counsel's ineffectiveness. (Id. at 10). However, this claim does not fit within Martinez's narrow exception. Petitioner cites PCRA counsel's ineffectiveness to overcome the default of his appellate counsel ineffectiveness claim, but the doctrine articulated in Martinez does not apply to procedurally defaulted claims of ineffective assistance of appellate counsel. Davila v. Davis,--- U.S.----, 137 S.Ct. 2058, 2065, 198 L.Ed.2d 603 (2017) (declining to extend Martinez to defaulted claims of ineffective assistance of appellate counsel). Accordingly, Martinez does not excuse Petitioner's procedural default.
Because Petitioner's claims are procedurally defaulted, this Court respectfully recommends that they be dismissed.
IV. CONCLUSION
For the foregoing reasons, I respectfully recommend that the petition for writ of habeas corpus be DENIED.
Therefore, I respectfully make the following:
RECOMMENDATION
AND NOW this 6TH day of April, 2023, I respectfully RECOMMEND that the petition for writ of habeas corpus be DENIED without the issuance of a certificate of appealability.
Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.