Opinion
Civil Action 21-2846
01-11-2022
ERICA JOHNSON v. DISTRICT ATTORNEY OF MONTGOMERY COUNTY, et al.
REPORT AND RECOMMENDATION
SCOTT W. REID, UNITED STATES MAGISTRATE JUDGE
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Erica Johnson, who is currently on probation under a conviction in Montgomery County, Pennsylvania, but supervised by Philadelphia County, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed with prejudice.
I. Factual and Procedural Background
On April 2, 2019, following a stipulated bench trial, Johnson was convicted of possession of a controlled substance with intent to manufacture or deliver, possession of a firearm with an altered manufacturer's number, and two counts of receiving stolen property. Petition at ¶¶ 2, 5; Docket Report, attached as Exhibit A to the Commonwealth's Response, at 5. She was sentenced on June 4, 2020, to 10-23 months of incarceration, followed by four years of probation. Docket Report, supra. Johnson did not file a direct appeal. Petition at ¶ 8.
On November 2, 2020, Johnson filed a petition for collateral relief under Pennsylvania's Post-Conviction Relief Act, (“PCRA”), 42 Pa.C.S.A. § 9541, et seq. Docket Report, supra, at 28. Counsel was appointed on November 10, 2020. Id. On February 21, 2021, however, appointed PCRA counsel filed a letter of no merit under Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), and a motion to withdraw. Finley Letter of February 21, 2021, attached as Exhibit B to Commonwealth's Response; Docket Report, supra, at 30.
The PCRA judge initially denied PCRA counsel's motion to withdraw, asking that counsel provide information as to whether Johnson had instructed her trial counsel to file a direct appeal. Finley Letter of February 24, 2021, attached as Exhibit C to Commonwealth's Response. After determining that Johnson had not asked for a direct appeal, PCRA counsel filed a second Finley letter and motion to withdraw on February 24, 2021, in which he explained his findings. Docket Report, supra, at 31; Commonwealth's Exhibit C. The PCRA judge granted counsel's second motion to withdraw on March 2, 2021. Docket Report, supra, at 31.
Also on March 2, 2021, the PCRA judge issued a notice of intent to dismiss Johnson's PCRA petition. Notice of Intent to Dismiss Without a Hearing of March 2, 2021, attached as Exhibit D to Commonwealth's Response. The Notice informed Johnson that she had twenty days within which to respond, and advised her that she had the right to “proceed by representing herself or with representation by privately retained counsel.” Id. Johnson did not respond to the Notice.
By order of November 12, 2021, the PCRA judge dismissed Johnson's petition. Order of November 12, 2021, attached as Exhibit E to Commonwealth's Response. The order notified Johnson that she had 30 days within which to appeal the dismissal of her PCRA petition to the Pennsylvania Superior Court. Id. Johnson did not file an appeal. Docket Report for CP-46-CR-9992652-2018 at 32 (reflecting no action following the PCRA court's Order of November 12, 2021).
Meanwhile, on January 19, 2021, the trial court granted Johnson's motion for parole. Docket Report, supra, at 29. On September 28, 2021, the Court of Common Pleas for Montgomery County transferred supervision of Johnson's parole to Philadelphia County, under a separate Philadelphia docket number. Docket Report, supra, at 32.
On July 2, 2021, Johnson filed the present petition for habeas corpus relief. In it, she asserts the following claims, set forth verbatim:
Ground one: False Exigent Circumstances: Affidavit received from the 911 caller, obtained by private investigator, this affidavit is supporting and direct evidence of false and misleading statements, knowingly, willingly, and deliberately, to create exigent circumstances;
Ground two: Fourth Amendment Violation Search and Seizure, and the Scope of the Search Warrant Jurisprudence: False statements inside of the affidavits, item report, police reports, daytime search 6 a.m. to 10 p.m., search warrant signed by an Honorable Judge at 9:51 p.m., and claiming search at 9:55 p.m., police reports showing this search was invalid. Video obtained the night in this matter shows perjury inside of police affidavits;
Ground three: Prosecutorial Misconduct: Video obtained in this matter shows clear perjury by two key witnesses, police transcripts show prosecutor admitted viewing this video, this being direct evidence that police were committing perjury and the Commonwealth's counsel refused to fix such perjury, furthermore objecting to the video being showed, refusing to fix fraud upon the Honorable Court.
Ground four: Ineffective Counsel: D[ue] to the forementioned trial counsel colluded with the Commonwealth and also allowed this tainted evidence to be added and this being clear perjury, this also includes appointed (PCRA), never filed any motions, never returned any messages, never contacted me to speak about, Finley letter and/or informed me he was filing such a letter.Petition at ¶ 11.
II. Legal Standards
A. Standard for Issuance of a Writ of Habeas Corpus
In enacting the Antiterrorism and Effective Death Penalty Act of 1196 (“AEDPA”), Congress significantly limited the federal courts' power to grant a writ of habeas corpus. Where the claims presented in a federal habeas petition were adjudicated on the merits in the state courts, a federal court may not grant habeas relief unless the adjudication either (a) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; or (b) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. §2254(d).
As the United States Supreme Court has explained, a writ may issue under the “contrary to” clause of Section 2254(d)(1) only if the “state court applies a rule different from the governing rule set forth in [United States Supreme Court] cases or if [the state court] decides a case differently than [the United States Supreme Court] has done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). A writ may issue under the “unreasonable application” clause only where there has been a correct identification of a legal principle from the Supreme Court but the state court “unreasonably applies it to the facts of the particular case.” Id. This requires a petition to demonstrate that the state court's analysis was “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002). State court factual determinations are given considerable deference under AEDPA. Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004).
B. Exhaustion and Procedural Default
Before a federal court can consider the merits of a habeas claim, a petitioner must comply with the exhaustion requirement of 28 U.S.C. § 2254(b), 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). This requires the claim to have been presented at least to the Pennsylvania Superior Court. Lambert v. Blackwell, supra, at 233-4.
To exhaust a claim, a petitioner must have “fairly presented” it to the state courts. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 199). This means that both the factual and the legal substance of the claim should have been presented to the state court in such a manner that the state court was on notice that a federal claim was being asserted. Id.; Veal v. Myers, 326 F.2d 612, 618 (E.D. Pa. 2004).
A petitioner's failure to exhaust his state remedies may be excused in limited circumstances on the ground that exhaustion would be futile. Lambert v. Blackwell, 134 F.3d 506, 518-19 (3d Cir. 1997). Where such futility arises from a procedural bar to relief in state court, the claim is subject to the rule of procedural default. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). In addition, if the state court does not address the merits of a claim because the petitioner failed to comply with the state's procedural rules in presenting the claim, it is also procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The procedural default doctrine prohibits a federal court from reviewing a habeas claim which was dismissed by the state court based on an independent and adequate state procedural rule. Coleman, supra, at 749; Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007). The doctrine is grounded in concerns of comity and federalism. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). “[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Edwards, supra, quoting Coleman, supra, at 501 U.S. 732.
A procedural rule provides an independent and adequate basis for precluding federal review if: (1) the rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claim on the merits; and (3) their refusal is consistent with other decisions. Nara, at 488 F.3d 199. It is “independent” if it is independent of the federal question presented by the petitioner. Id. It is “adequate” for procedural default purposes if it was “firmly established, readily ascertainable, and regularly followed at the time of the default.” Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001). These requirements ensure that federal review is not barred unless a habeas petitioner had fair notice of the need to follow what could fairly be called rules of general applicability. Bronshtein v. Horn, 404 F.3d 700, 707 (3d Cir. 2005).
Procedural default can be overcome only where a habeas petitioner shows: (a) cause for his failure to comply with state procedural rules, and prejudice resulting therefrom; or (b) that a fundamental miscarriage of justice will occur if the claim is not considered. Edwards, supra. A showing of cause demands that the petitioner establish that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Coleman, supra, at 501 U.S. 753. Examples of suitable cause include a showing that the factual or legal basis for a claim was not reasonably available to counsel, or a showing that “some interference by officials” made compliance with the state rule impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). Once cause is proven, a petitioner must also show that prejudice resulted from trial errors that worked to the petitioner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494.
A fundamental miscarriage of justice ordinarily requires a showing of strong evidence of actual innocence. Schlup v. Delo, 513 U.S. 298, 316 (1995). This requires the petitioner to present new, reliable evidence of innocence that was not presented at trial. Id. at 324.
III. Discussion
A. Johnson's Claims are Unexhausted and Procedurally Defaulted
The claims Johnson has raised in her petition for habeas corpus relief are unexhausted because none of them was raised before the Pennsylvania Superior Court. As explained above, AEDPA requires a petitioner to give the state courts an opportunity to resolve constitutional issues. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In this state, this means that the claim must be presented at least to the Pennsylvania Superior Court. Lambert v. Blackwell, supra, at 233-4.
Further, Johnson's claims are procedurally defaulted, because she cannot return to the Pennsylvania courts to exhaust them. Her thirty-day deadline for appealing the dismissal of her PCRA petition has expired. Pa. R.A.P. 903. Nor can Johnson raise her claims in a second PCRA petition. A PCRA petition, even a second or successive petition, must be filed within one year of the date a petitioner's judgment becomes final. 42 Pa. C.S.A. §9545(b)(1). Johnson's judgment became final on or about July 6, 2020, roughly thirty days after the entry of trial court's June 4, 2020, sentencing order when she failed to file a notice of appeal in the Pennsylvania Superior Court. Therefore, a timely PCRA petition had to be filed by about July 6, 2021. Since that date has passed, Johnson cannot file a new timely PCRA petition.
The PCRA statute of limitations is well established as an independent and adequate state rule for the purposes of procedural default of a habeas claim. Glenn v Wynder, 743 F.3d 402, 409 (3d Cir. 2014). To the extent that any of the claims Johnson raises here was a part of her pro se PCRA petition, her failure to exhaust them in compliance with 42 Pa. C.S.A. §9545(b)(1) renders them procedurally defaulted. Coleman v. Thompson, supra. Of course, any habeas claims that were not included in the PCRA petition are also procedurally defaulted under 42 Pa. C.S.A. §9545(b)(1), since there was not even an attempt to exhaust them within the permissible time period.
Accordingly, none of Johnson's claims can be considered on their merits without a showing of either (a) cause for their procedural default and prejudice arising therefrom, or (2) actual innocence. Edwards, supra. Johnson has not made any argument in this regard, or offered any explanation for the default of these claims. No. excuse for her default is apparent on the record. For that reason, Johnson's claims must be dismissed with prejudice as unexhausted and procedurally defaulted.
Johnson's first two claims could not be considered even if they were not defaulted. Fourth Amendment claims are not cognizable on federal habeas review if the petitioner had a full and fair opportunity to litigate the claim in the state court. Stone v. Powell, 428 U.S. 465, 494 (1976).
IV. Conclusion
For the reasons set forth above, I now make the following:
RECOMMENDATION
AND NOW, this 11th day of January, 2022, it is respectfully recommended that all claims set forth in this petition be DISMISSED with prejudice as unexhausted and procedurally defaulted. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. The petitioner may file objections to this Report and Recommendation within fourteen days after being served with a copy. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights. See Leyva v. Williams, 504 F.3d 357, 364 (3d Cir. 2007).