Opinion
Civil Action No. 04-2715.
December 28, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Khemovone Keomanivanh ("Keomanivanh"), an individual incarcerated at the State Correctional Institution in Albion, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed.
PROCEDURAL HISTORY:
On July 25, 2000, following a jury trial before the Honorable John J. Chiovero, Court of Common Pleas of Philadelphia County, Keomanivanh was convicted of robbery, aggravated assault, criminal conspiracy, and possession of an instrument of crime. On October 24, 2000, Keomanivanh was sentenced to an aggregate term of six and one-half (6½) to fifteen (15) years of imprisonment, followed by a consecutive term of five (5) years of probation.
Keomanivanh filed an appeal in the Pennsylvania Superior Court claiming:
(1) the verdict was based on insufficient evidence of identification;
(2) the verdict was based on insufficient evidence of robbery;
(3) the verdict was based on insufficient evidence of aggravated assault as a felony of the first degree;
(4) the verdict was based on insufficient evidence of conspiracy;
(5) the lower court erred in denying a charge pursuant to Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954);
(6) the trial court erred in denying a charge as to mutual affray; and
(7) the trial court abused its discretion by imposing an unduly harsh sentence.
On December 10, 2001, the Superior Court rejected Keomanivanh's claims and affirmed the judgement of sentence. Commonwealth v. Keomanivanh, No. 3362 EDA 2000 (Pa.Super. Dec. 10, 2001) (unpublished memorandum). Keomanivanh did not petition for allowance of appeal in the Pennsylvania Supreme Court.
On June 10, 2002, Keomanivanh filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. Ann. § 9541, et seq. Counsel appointed to represent Keomanivanh in his PCRA matter subsequently filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), certifying that he had reviewed the entire record and concluded that there were no meritorious issues to advance before the PCRA court. On December 12, 2002, the PCRA court dismissed Keomanivanh's petition as meritless and permitted counsel to withdraw. On January 16, 2003, Keomanivanh filed a pro se notice of appeal to the Superior Court, but that appeal was dismissed by the Superior Court on March 25, 2004, due to Keomanivanh's failure to file a brief. Commonwealth v. Keomanivanh, No. 407 EDA 2003 (Pa.Super. March 25, 2004) (unpublished). Keomanivanh did not seek allocatur in Pennsylvania Supreme Court
In his habeas petition, Keomanivanh claims that he filed a second PCRA petition which was dismissed by the PCRA court and that his appeal to the Superior Court from the dismissal of the PCRA petition was denied on September 26, 2003. See Rev'd Pet. (Doc. #3). By teleconference with the District Attorney's Office on December 27, 2004, my chambers clarified the procedural history concerning this alleged second PCRA petition. Apparently, Keomanivanh's original PCRA petition was originally dismissed on September 26, 2003, but on or about October 13, 2003, Keomanivanh filed a motion to reinstate his appeal. I presume that Keomanivanh has characterized this motion to reinstate his appeal as a second PCRA petition. The Superior Court apparently accepted this filing, but then ultimately dismissed Keomanivanh's appeal on March 25, 2004, once again for failure to file a brief.
On June 14, 2004, Keomanivanh filed the instant pro se petition for writ of habeas corpus claiming:
This court will presume that Keomanivanh's petition was given to prison authorities on the date on which his original petition was signed, June 14, 2004, and his petition will be deemed filed as of that date. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988) (a pro se petitioner's habeas petition is deemed filed at the moment he delivers it to prison authorities for mailing to the district court).
(1) counsel was ineffective for failing to prepare an adequate defense;
(2) he was not given Miranda warnings before his arrest; and
(3) his due process rights were violated by the admission of hearsay statements.
Respondents have filed an answer asserting that Keomanivanh's claims should be dismissed as procedurally defaulted.
DISCUSSION :
A federal court, absent unusual circumstances, should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254. See 28 U.S.C. § 2254(b). A petitioner will not be deemed to have exhausted available state remedies if he had the right under the law of the state to raise, by any available procedure, the question presented. O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ("we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts");Picard v. Connor, 404 U.S. 270 (1971). "The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights." Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (quoting Caswell v. Ryan, 953 F.2d 853, 856 (3d Cir. 1992)). In order for a claim to be exhausted "[b]oth the legal theory and the facts underpinning the federal claim must have been presented to the state courts . . . and the same method of legal analysis must be available to the state court as will be employed by the federal court." Evans v. Court of Common Pleas, Del. Co., Pa., 959 F.2d 1227, 1231 (3d Cir. 1992). The habeas corpus petitioner has the burden of proving exhaustion of all available state remedies. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C.A. § 2254).
The claims raised in the instant petition have not been exhausted in the Pennsylvania courts. Although Keomanivanh filed a direct appeal, the claims he presented therein are not even similar to the claims raised in the instant habeas petition. Moreover, the claims Keomanivanh presented in his PCRA petition were not fairly presented to the state courts because his appeal to the Pennsylvania Superior Court was dismissed for failure to file an appellate brief. See Pa.R.A.P. 2188 (failure to file a brief may result in dismissal of matter). Therefore, the claims presented here are unexhausted. We find, however, that exhaustion should be excused for these claims pursuant to 28 U.S.C. § 2254(b)(1), because a return to state court would be futile due to "an absence of available State corrective process."Lines, 208 F.3d at 162. The only way in which Keomanivanh could present these claims in the state courts at this time is by filing another PCRA petition. See Szuchon v. Lehman, 273 F.3d 299, 324 n. 14 (3d Cir. 2001). However, any such petition would be time-barred by the PCRA's statute of limitations. As a result, exhaustion would be futile and is excused.
Although a number of the claims raised in the instant petition resemble claims Keomanivanh presented in his PCRA petition, Keomanivanh never fully exhausted those claims by completing his appeal from the denial of post-conviction relief to the Pennsylvania Superior Court.
Pursuant to the amended PCRA, effective January 16, 1996, collateral actions must be filed within one (1) year of the date the judgment at issue becomes final. 42 Pa. Cons. Stat. Ann. § 9545(b)(1); see also, e.g., Lines, 208 F.3d at 164 n. 17 (noting that the Pennsylvania Supreme Court has held that the time restrictions for seeking relief under the PCRA are jurisdictional) (citing Commonwealth v. Banks, 726 A.2d 374 (Pa. 1999)). For purposes of the PCRA, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania and the Supreme Court of the United States, or at the expiration of time for seeking the review. 42 Pa. Cons. Stat. Ann. § 9545(b)(3). Keomanivanh's judgment became final on January 10, 2002, when the time for seeking an appeal in the Pennsylvania Supreme Court expired. Because Keomanivanh's judgment became final almost two (2) years ago, the PCRA statute of limitations would preclude Keomanivanh from presenting the instant claims in another PCRA petition. 42 Pa. Cons. Stat. Ann. § 9545(b)(1). Moreover, although there are three (3) exceptions to the PCRA's statute of limitations, 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(i), (ii), (iii), Keomanivanh fails to allege any of the limited circumstances upon which an exception would be granted.
Although we recommend that exhaustion be excused, Keomanivanh is considered to have procedurally defaulted his claims because state procedural rules bar him from seeking further relief in state courts. Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001). A federal court may not consider the merits of such claims unless the petitioner establishes "cause and prejudice" to excuse his default. Id. (citing Coleman, U.S. at 750). The Supreme Court has delineated what constitutes "cause" for the procedural default: the petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). With regard to the prejudice requirement, the habeas petitioner must prove "`not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Id. at 193 (citingCarrier, 477 U.S. at 494).
In the alternative, if the petitioner fails to demonstrate cause and prejudice for the default, the federal court may also consider a defaulted claim if the petitioner can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 748. In order to satisfy the fundamental miscarriage of justice exception, the Supreme Court requires that the petitioner show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (citingCarrier, 477 U.S. at 496); see Glass v. Vaughn, 65 F.3d 13, 16-17 (3d Cir. 1995), cert. denied, 516 U.S. 1151 (1996) (assuming that the Schlup miscarriage of justice/actual innocence standard applied to noncapital petitioner arguing eligibility for lesser degree of guilt). To satisfy the "actual innocence" standard, a petitioner must show that, in light of new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327; see also Glass, 65 F.3d at 16.
Keomanivanh has failed to establish cause to excuse his procedural default. Moreover, because Keomanivanh makes no colorable showing of innocence, he has failed to demonstrate that a miscarriage of justice will result if his claims are not reviewed. Coleman, 501 U.S. at 748; Schlup, 513 U.S. at 327 (citing Carrier, 477 U.S. at 496); see Glass, 65 F.3d at 16-17. Therefore, these claims must be dismissed as procedurally defaulted.
Because no cause has been demonstrated, the court need not address the prejudice requirement. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982) (because petitioner lacked cause for default, the court need not consider whether he also suffered actual prejudice).
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of December, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.