Opinion
Civil Action No. 04-827.
September 30, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a counseled Petition for Writ of Habeas Corpus filed by the Petitioner, Steven Holiday ("Petitioner"), pursuant to 28 U.S.C. section 2254. The Petitioner is currently incarcerated in the Smithfield State Correctional Institution located in Huntingdon, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response, the Reply, and all documents attached to those pleadings.
On December 9, 1997, following a jury trial before the Honorable C. Darnell Jones, II, in the Court of Common Pleas of Philadelphia County, Pennsylvania, Petitioner was convicted of first degree murder, criminal conspiracy, and carrying a firearm on a public street. Petitioner was sentenced to life imprisonment for the murder conviction, and two terms of two and one-half to five years imprisonment, one consecutive and one concurrent, for the other convictions. Petitioner filed timely post-conviction motions, which were denied.
Petitioner filed a notice of appeal with the Pennsylvania Superior Court, and that court affirmed the judgments of sentence on September 28, 1999. See Resp., Ex. A; Commonwealth v. Holiday, 747 A.2d 413 (Pa.Super. 1999) (table). The Supreme Court of Pennsylvania denied Petitioner's allocatur petition on April 27, 2000. Commonwealth v. Holiday, 757 A.2d 929 (Pa. 2000) (table).
On March 12, 2001, Petitioner, represented by his current habeas counsel, filed a petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), alleging that his trial counsel was ineffective for: (1) failing to object to the trial court's "progression" charge and request an "unable to agree" instruction; (2) failing to request that the "no adverse inference" charge be excluded; and (3) failing to object to the trial court's "reasonable doubt" charge.See 42 Pa. C.S.A. § 9541. Petitioner also alleged that his counsel on direct appeal was ineffective for failing to raise his trial counsel ineffectiveness claims. The Commonwealth filed a motion to dismiss, and on June 25, 2002, following the requisite PA.R.CRIM.P. 907 notice, the PCRA court dismissed the petition without a hearing. See Resp., Ex. B, pp. 6-13. Petitioner appealed the dismissal of his PCRA petition to the Superior Court. On June 30, 2003, the Superior Court affirmed the PCRA court's dismissal, finding that all of Petitioner's ineffectiveness claims were waived and meritless as stated in the PCRA court opinion. See Resp., Ex. B; Commonwealth v. Holiday, 832 A.2d 537 (Pa.Super. 2003) (table). Thus, the Superior Court adopted the reasoning of the PCRA court. Id. The Pennsylvania Supreme Court denied Petitioner's allocatur petition on December 23, 2003. Commonwealth v. Holiday, 841 A.2d 529 (Pa. 2003) (table).
On February 25, 2004, Petitioner filed the instant counseled Petition for Writ of Habeas Corpus, which contains the same claims presented in his PCRA petition. Petitioner specifically argues: (1) trial counsel was ineffective for failing to object to the trial court's progression charge which violated the due process clause of the Fourteenth Amendment as well as the Sixth Amendment because of its coercive impact on the jurors requiring as it does a hung jury whenever the jury was unable to agree on the greater charge without any consideration of the lesser charges thereby denying full consideration of the views of dissenting jurors (Pet., p. 9); (2) trial counsel was ineffective because he should have objected to the court's progression charge and if the court overruled that objection trial counsel should have requested that the progression charge be accompanied by an "unable to agree" instruction which would have permitted a jury that was divided on a greater charge to consider the views of the other jurors on the lesser charge and reach a verdict on the lesser charge as opposed to reporting themselves hung (Id. at 10); (3) appellate counsel was ineffective for failing to have raised these issues on direct appeal by asserting trial counsel's ineffectiveness (Id.); (4) trial counsel was ineffective for failing to object to the court's charge on reasonable doubt which deprived Petitioner of reasonable doubts to which he was constitutionally entitled (Id.); and (5) trial counsel was ineffective because he deprived his client of his right to insist that the court not give the no adverse inference instruction to the jury, and appellate counsel was ineffective for failing to have raised this issue on direct appeal by asserting trial counsel's ineffectiveness. (Id.) Respondents contend that each claim must be dismissed as procedurally defaulted and meritless.
II. DISCUSSION.
A. Petitioner's Ineffective Assistance of Trial Counsel Claims.
Petitioner presented identical ineffective assistance of trial counsel claims to the PCRA court. The PCRA court held:
Preliminarily, it should be noted that an issue must be deemed waived ". . . if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in a prior state post conviction proceeding." 42 Pa. C.S.A. § 9544(b). In the instant matter, the defendant's trial counsel, Attorney Aaron Firestone, failed to raise any of the objections now being complained of. However, since the defendant is claiming that his trial counsel was ineffective for failing to do so, it was incumbent upon him to raise said issue at the first possible opportunity after no longer represented by Mr. Firestone. In Commonwealth v. Miller, 664 A.2d 1310 (Pa. 1995), certiorari denied, 516 U.S. 1122 (U.S. Pa. Feb. 20, 1996), the Court found that:
A claim of ineffective assistance of counsel must be raised at the first point in the proceedings at which the allegedly ineffective counsel no longer represents the appellant. Because present counsel was appointed prior to the conclusion of post-trial motions, trial counsel's ineffectiveness should have been raised at that point. Because it was not, the issue is waived. However, we will address this issue under the relaxed waiver standard applicable in capital cases. Id. at 1323, f.n. 22. (Emphasis Added).
Inasmuch that this is not a capital case and the "relaxed waiver" rule shall not apply, the defendant should have raised the instant issues on direct appeal while represented by Attorney Bruce Wolf. Since he failed to do so, they should be deemed waived. However, regardless of any potential existence of waiver, this Court shall address the issues on the merits.
Resp., Ex. B, pp. 7-8. The Pennsylvania Superior Court affirmed the PCRA court, and found that all of Petitioner's claims of trial counsel ineffectiveness were waived because they were not raised on direct appeal. The court specifically found:
First, we find that Holiday's claims of trial counsel's ineffectiveness are waived for his failure to raise them on direct appeal. See Commonwealth v. Bracey, 795 A.2d 935, 940 (Pa. 2001). Because Holiday was represented by new counsel on direct appeal, he should have asserted these claims of trial counsel's ineffectiveness then, but he did not. Therefore, these claims are waived. See 42 Pa. C.S.A. § 9544(b); Commonwealth v. Griffin, 644 A.2d 1167, 1170 (Pa. 1994) (to avoid PCRA waiver rule, ineffectiveness must be raised at earliest opportunity where defendant is represented by new counsel).
We acknowledge our Supreme Court's recent decision in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), which held that "a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review." Grant, however, does not save Holiday's claims of trial counsel ineffectiveness from waiver. In Grant, our Supreme Court stated that the new rule applies to "those cases currently pending on direct appeal where the issues of ineffectiveness have been properly raised and preserved," but it "has no effect on cases currently pending on collateral review." Id. at 738-739 n. 16 (emphasis added). At the time Grant was decided, this case was pending on collateral review. Therefore, Grant is inapplicable, and Holiday's claims of trial counsel's ineffectiveness are waived. See Commonwealth v. Vanskiver, 819 A.2d 69, 73 n. 3 (Pa.Super. 2003) (en banc).
Resp., Ex. B, p. 2-3 (emphasis added). In Pennsylvania, litigants were historically required to raise ineffectiveness of trial counsel at the first opportunity. See Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1997). In December of 2002,Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), overturned that requirement, and the Pennsylvania Supreme Court described the pre-Grant waiver rule as follows:
When this rule was restated in Hubbard, the requirement that the claim must be raised at the time a petitioner had new counsel was made absolute. In the aftermath of Hubbard, there was no flexibility to the rule. The rule became that claims of trial counsel ineffectiveness must be raised at the time that the petitioner obtained new counsel regardless. See, e.g., Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 212 (2001); Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242, 1254 (1999); Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054, 1058 n. 2 (1985).Grant, 813 A.2d at 733-734. The Pennsylvania Supreme Court explained that the Hubbard rule would continue to apply in all cases pending on collateral review at the time that Grant was decided. Id. at 738-739 n. 16. Petitioner's PCRA petition was pending at the time Grant was decided. Thus, the Hubbard rule, which required litigants to raise ineffectiveness of trial counsel upon the first opportunity, applied to Petitioner.
Respondents correctly argue that the Superior Court's decision to find Petitioner's claims waived was a consistent application of an independent and adequate state rule. See Villot v. Varner, 373 F.3d 327, 335-336 n. 8 (3d Cir. 2004) (recognizing that Hubbard required ineffectiveness claims must be raised at the first opportunity, and that rule remained in effect untilGrant issued). Thus, Petitioner's ineffectiveness of trial counsel claims are procedurally defaulted. See Harris v. Reed, 489 U.S. 255 (1989) (stating if state court relied on independent and adequate state court ground in denying relief, claim is defaulted).
This Court may review such 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 v. Thompson, 501 U.S. 722, 750 (1991). Petitioner does not allege cause and prejudice for his default, therefore the procedural defaults cannot be excused on this basis. Teague v. Lane, 489 U.S. 288, 298 (1989). Petitioner also 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). Thus, Petitioner's ineffective assistance of trial counsel claims should be denied.
B. Appellate Counsel Ineffectiveness Claims.
The PCRA court examined the merits of Petitioner's ineffective assistance of appellate counsel claims and found these claims meritless. The court used a layered ineffective assistance of counsel analysis, holding that, because it found that trial counsel was not ineffective, appellate counsel's failure to raise trial counsel's ineffectiveness on appeal could not be ineffective. The Superior Court noted that Petitioner raised his ineffective assistance of appellate counsel claims in a boilerplate fashion. The court stated:
Next, Holiday claims that his direct appeal counsel was ineffective for failing to raise his claims of trial counsel's ineffectiveness on direct appeal. To prevail on a claim of ineffective assistance of counsel under the PCRA, the petitioner must show that (1) the underlying claim has arguable merit, (2) counsel had no reasonable basis for following the chosen course of conduct, and (3) but for counsel's conduct, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002); Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).
In both his PCRA petition and his brief to this Court, Holiday baldly asserts at the end of each argument regarding trial counsel's ineffectiveness that direct appeal counsel was ineffective for failing to raise these claims. However, ineffectiveness claims are distinct, substantive claims that are separate from the underlying claims of error from which they arise and require their own proof. Commonwealth v. Clayton, 816 A.2d 217, 220 (Pa. 2002) (plurality); Commonwealth v. Simmons, 804 A,2d 625, 639 (Pa. 2001) (plurality). Mere boilerplate allegations appended to waived claims of trial court or trial counsel's error are insufficient to prove an ineffectiveness claim under the PCRA. Commonwealth v. Bond, 819 A.2d 33, 40 (Pa. 2002); see also Commonwealth v. Williams, 782 A.2d 518, 525-526 (Pa. 2001) (plurality) (cautioning that "competent PCRA counsel must, in pleadings and briefs, undertake to develop . . . the nature of the claim asserted with respect to each individual facet of a layered ineffectiveness claim, including that which relates to appellate counsel" to ensure petitioner's entitlement to merits review) (emphasis added).
Here, while Holiday briefly touches on the merits of the underlying, waived claims of trial counsel's ineffectiveness, he does not even attempt to show how Attorney Wolf's failure to raise these claims on direct appeal lacked any reasonable basis designed to effectuate his interests or how the outcome would have differed had these claims been raised. See Clayton, 816 A.2d at 221. Indeed, Holiday never discusses Attorney Wolfe's performance, except to say that the claims he did raise on direct appeal, which included three claims of trial counsel's ineffectiveness, "had no chance of prevailing." (Appellant's Brief at 14 n. 4.) Holiday's bald allegations of direct appeal counsel's ineffectiveness cannot undo the waiver of the underlying claims. Holiday, therefore, has failed to establish his entitlement to relief. See Wharton, supra; Bond, supra.
Resp., Ex. B, pp. 3-5 (emphasis added). Under Pennsylvania law, for layered ineffectiveness claims, a petitioner must present arguments on each prong of the ineffective assistance of counsel standard. Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003). In Commonwealth v. Williams, 782 A.2d 517 (Pa. 2001), the Pennsylvania Supreme Court advised that:
In light of the Marrero opinions, it is apparent that competent PCRA counsel must, in pleadings and briefs, undertake to develop, to the extent possible, the nature of the claim asserted with respect to each individual facet of a layered ineffectiveness claim, including that which relates to appellate counsel. While a majority of this Court would presently continue to allow a degree of latitude in this regard, the distinction between sufficient and insufficient claims will likely undergo further development over time in the context of specific cases; therefore to ensure a petitioner's entitlement to merits review, it is critical that post-conviction counsel avoid arguments on the fringes of appropriate representation.Williams, 782 A.2d at 525-526.
Petitioner's counsel raised his ineffective assistance of appellate counsel argument in one-sentence arguments before both the PCRA court and the Superior Court. Petitioner filed his PCRA petition on March 12, 2001, and Williams was decided on October 19, 2001. Petitioner did not amend his PCRA petition, and it was dismissed on June 26, 2002. Petitioner's Superior Court brief was filed on November 12, 2002, more than one year after Williams was decided. Nonetheless, Petitioner again raised the ineffective assistance of appellate counsel in his boilerplate, one sentence arguments before the Superior Court.
Respondents contend that Petitioner's counsel, who also represented Petitioner in the lower court in his PCRA petition and Superior Court appeal, had fair notice of the Williams pleading requirements. Thus, according to Respondents, the Superior Court's decision finding Petitioner's claims waived was a consistent application of an independent and adequate state rule by the state courts, and these claims are procedurally defaulted and must be dismissed.
Petitioner conversely argues in his Reply brief that:
the state rule of law invoked to bar consideration of his PCRA claims by the Superior Court was not even close to being the required `firmly established and regularly followed state practice' held to be the constitutional prerequisite by Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct, 820, 112 L.Ed.2d 935 (1991).
Reply, p. 7. Petitioner argues that the Pennsylvania Supreme Court articulated a preference for remand where the Superior Court found a waiver due to a perceived failure to plead and prove ineffectiveness of appellate counsel. Thus, according to Petitioner, uniform application of these rules cannot be established and under such circumstances there can be no procedural default and this Court must review the merits of the claims which the state court did not consider.
Petitioner's counsel argues that the case law was not uniformly or consistently applied in Pennsylvania regarding pleading requirements for ineffective assistance of appellate counsel claims. He first cites Commonwealth v. Marrero, 748 A.2d 202 (Pa. 2000), in which a majority of the Pennsylvania Supreme Court rejected the argument that several of Marrero's claims had been waived because he made a general layered assertion of ineffectiveness of trial and appellate counsel. Petitioner's counsel next notes that only a three-Justice majority of the Pennsylvania Supreme Court in Williams did not find the ineffectiveness claims waived in that case, but indicated that PCRA counsel would be granted latitude in pleading and proving layered ineffectiveness claims, and merely cautioned that the court's rules might undergo a process of change in future cases.See Reply at 3-4 (citing Williams, 782 A.2d at 525-526). Petitioner's counsel finally cites a case decided three years following Williams, in which the Pennsylvania Supreme Court "articulated a general preference toward remanding cases currently pending in the PCRA appellate pipeline where the PCRA petitioner has not pled and/or presented a layered ineffectiveness claim in a manner sufficient to obtain merits review. Id. at 5 (citing Commonwealth v. McGill, 832 A.2d 1014, 1024 (Pa. 2003)). Petitioner does not present any case law other than these three cases to support his contention that the specific pleading rule was inconsistently applied by Pennsylvania courts.
Respondents conversely support their contention that Petitioner's appellate counsel was on notice that boilerplate pleadings were insufficient and future appellate filings should reflect the greater pleading requirement. See Resp. at 13 (citing Commonwealth v. Rivers, 786 A.2d 923, 929 n. 3 (Pa. Dec. 20, 2001) (stating "[h]er boilerplate assertion that any waiver is overcome by ineffectiveness of counsel in not raising the claim earlier is insufficient"); Commonwealth v. Lambert, 797 A.2d 232, 243 (Pa. Dec. 31, 2001) (stating "appellant's failure to forward relevant argumentation as to each necessary `individual facet' of the Strickland standard dooms his boilerplate claims to failure"); Commonwealth v. Bracey, 795 A.2d 935, 940 n. 4 (Pa. Dec. 31, 2001) (stating petitioner's sentence stating that trial and appellate counsel were ineffective for failing to raise the underlying claim did not satisfy the burden of proof),reconsideration denied, April 18, 2002; Commonwealth v. Simmons, 804 A.2d 625, 639 (Pa. Dec. 31, 2001) ("boilerplate assertions, such as those made here, are inadequate to prove the effective denial of the right to counsel necessary to warrant PCRA relief"), reargument denied, May 24, 2002. A review of these cited cases suggests that the pleading requirements for ineffective assistance of appellate counsel in Pennsylvania both at the time that Petitioner's PCRA petition was denied and his Superior Court brief was filed was both known and consistently applied. Thus, these claims are procedurally defaulted.
This Court may review such 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, 489 U.S. at 298. 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, 513 U.S. at 327.
Unless Petitioner can demonstrate that his claims rely upon a new constitutional rule retroactive to federal habeas cases or that their factual predicate "could not have been previously discovered through the exercise of due diligence," an evidentiary hearing is inappropriate. See 28 U.S.C. § 2254(e)(2). Petitioner has not demonstrated either of these requirements, but even if he did, he would have had prove that, if the facts had been known, no reasonable fact-finder would have found him guilty.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of September, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus and the Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.