Opinion
Civil Action 22-cv-2728
10-18-2023
ERIK LOPEZ-TORRALBA, Petitioner, v. SUPERINTENDENT, SCI-FOREST, et al. Respondents.
REPORT AND RECOMMENDATION
CRAIG M. STRAW UNITED STATES MAGISTRATE JUDGE
Petitioner Erik Lopez-Torralba (“Lopez-Torralba” or “Petitioner”) filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2016 Montgomery County Court of Common Pleas conviction. Petitioner is currently incarcerated at the State Correctional Institute-Forest located in Marienville, Pennsylvania. For the following reasons, it is recommended that the petition be DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Court of Common Pleas of Montgomery County provided an electronic state court record for this case. See Doc. 20. Respondents also attach several exhibits, including the important state court opinions, to their response. Doc. 13.
A. Statement of Facts
At trial, the Commonwealth presented evidence outlining Lopez-Torralba's participation in an illegal drug trafficking scheme. Commonwealth v. Lopez-Torralba, No. 3427-15 (Pa. Ct. Com. Pl., Dec. 14, 2016); Doc. 13, Ex. A, at 1-2 (hereinafter “Tr. Ct. Opin.”). Detective Reynolds, a detective for the Narcotics Enforcement Team (NET) in Montgomery County who handles all aspects of narcotic-related investigations, testified at Lopez-Torralba's trial. Notes of Testimony (“N.T.”), 3/28/16 hearing, Doc. 20-29, at 33.In this case, Detective Reynolds used a confidential informant (“CI”). Id. at 37-38. The CI made several calls in Detective Reynolds's presence to an international telephone number with a country code for Mexico. Id. at 41. Thereafter, the CI dialed a local phone number-later discovered to be that of Gladiz Basurto-Leal-who resided at 831 George Street, Norristown, Pennsylvania, to arrange a meeting at the Chili's parking lot near the King of Prussia Mall for the purchase of one kilogram of heroin. Id. at 42-43; 50-51. Surveillance units were sent to the King of Prussia location and were set up at the 800 block of George Street. Id. at 43; 47-48; 65.
The page numbers used in this opinion are the numbers in the upper right corner of the transcript, not the pagination created by CM/ECF.
At approximately 11 a.m. on April 14, 2015, NET member Lieutenant Stephen Forzato drove to the 800 block of George Street in Norristown, Pennsylvania, to relieve one of his detectives. Id. at 47-48. At 11:08 a.m. he saw a blue Chevy Lumina pull up, a Hispanic female exit the driver's side of the car, and a Hispanic male get out of the passenger side front door. Id. at 48, 50. Both individuals entered the residence at 831 George Street. Id. at 50. Five minutes later, they left the house. Id. Lieutenant Forzato was able to identify the male at trial as defendant Lopez-Torralba and the female as Ms. Basurto-Leal. Id. 50-51. Lieutenant Forzato noted that when Lopez-Torralba left the house he had something in his hand that appeared to be a brick of heroin and he was wearing red pants and a white shirt. Id. at 50-52. Lieutenant Forzato radioed to his men that “the Hispanic male, in the red pants” might have “what you're looking for.” Id. at 52. Lopez-Torralba and Ms. Basurto-Leal entered the same car with Ms. Basurto-Leal driving. Id. at 53. Lieutenant Forzato followed them but did not get very close because he did not want them to see him. Id. at 53-54. Lieutenant Forzato believed they were heading to King of Prussia. Id. at 54. When Lieutenant Forzato caught up to them, he could see that the Hispanic female was still driving, however, no one was in the passenger seat. Id. Upper Merion patrol eventually stopped Ms. Basurto-Leal at the traffic light near Valley Forge Shopping Center, and they took her into custody. Id. at 57. A search of the car did not uncover heroin or any other drugs. Id. at 58.
Montgomery County NET Detective James Vinter was conducting surveillance at the 831 George Street house. Id. at 62; 65. At 12:25 p.m., Detective Vinter was parked 30 to 50 yards from the house. Id. at 65-67. On three instances, he saw a silver Acura circle the block and a minute later it slowed in the vicinity of 831 George Street. Id. at 67-68. The third time the Acura stopped, Lopez-Torralba exited, and went inside 831 George Street. Id. at 68-69. Lopez-Torralba was wearing red sweatpants and a white t-shirt. Id. at 69. Lopez-Torralba was inside for thirty minutes, he and another male exited, entered the Acura, and drove off. Id. Detective Vinter notified the surveillance team. Id.
The trial court recounted in detail the testimony of Detective James Wood regarding the detention and search of Lopez-Torralba at issue here:
Detective Wood testified that, on April 14, 2015, he was participating in the investigation of a large-scale heroin trafficking operation in Norristown, Montgomery County, Pennsylvania. At approximately 1:10 p.m. on that date, Detective Wood was sitting in an unmarked car in the vicinity of Marshall and Arch Streets, waiting for uniformed officers to make a traffic stop of a 2005 Acura suspected to be transporting a large quantity of heroin. Before the traffic stop could take place, the Acura pulled into a parking spot on Arch Street. There were three people inside the vehicle: The driver - subsequently identified as defendant [Lopez Torralba] - and two passengers. (N.T. March 26, 2016, pp. 16-19).
Accompanied by two uniformed officers, Detective Wood - who was in plainclothes with a bullet-proof vest with the word “Police”
written on the front - approached the Acura. While the uniformed officers dealt with the passengers, Detective Wood went to the driver's side of the Acura, where he encountered defendant. The detective identified himself, informed defendant that he was conducting a drug investigation, and directed defendant to get out of the Acura, following which the detective performed a “pat down” of defendant for officer safety. The “pat down” did not lead to the discovery of any weapons. Detective Wood testified that, although he was armed himself, his gun was concealed inside his police vest. The detective testified that he did not display his weapon at any point during his entire encounter with defendant (N.T., March 22, 2016, p. 17, pp. 19-23).
Detective Wood testified that his conversation with defendant on Arch Street was conducted in a calm manner, with no threats made and no raised voices. The detective testified that he did not put his hands on defendant apart from the “pat down.” The detective testified that, during the course of this conversation, he asked defendant for permission to search the Acura, and that defendant verbally consented to the search. (N.T., March 22, 2016, pp. 24-25).
Detective Wood, however, did not search the Acura at this point, but instead directed that defendant be placed inside a marked police vehicle and transported to the Norristown Police Station. The detective himself then drove defendant's Acura to the police station, a trip of approximately one minute (N.T., March 22, 2016, p. 25).
Arriving at the police station at approximately 1:25 p.m., Detective Wood retrieved a pre-printed “consent to search form” from another officer. The detective then directed defendant to sit in the front passenger seat of the Acura while the detective sat in the driver's seat. Detective Wood testified that he did this so that defendant would not feel intimidated by all of the other officers moving around the station. Inside the Acura, Detective Wood asked defendant if he would be willing to provide a written consent to searches of his car, residence, and cellular phone. Defendant agreed to provide a written consent to search.
Detective Wood handwrote on the form specific identifying information for defendant's Acura, his address, and his cell phone. The detective did not testify as to asking defendant for any identifying information concerning the Acura (i.e., the VIN number or registration number), and plainly had no need to do so, as the license number and the VIN number were readily apparent
on the vehicle itself. In regard to defendant's phone, the detective testified that he had noted the presence of an iphone on the center console of the vehicle and had asked defendant if it was his. Defendant had replied that it was. The defendant also provided Detective Wood with his address (N.T., March 22, 2016, pp. 26-33).
Detective Wood testified that - prior to having defendant sign the consent to search form - he read the form aloud to defendant and also asked defendant to read it himself. On its face, the form stated in pre-printed language:
“I understand that I have the right to refuse the consent to search described above and the right to refuse to sign this form. “I further state that no promises, threats, force, or physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.”
Detective Wood testified that he verbally informed defendant that he was free to revoke his consent to search (N.T., March 22, 2016, p. 48). Pressed on this issue on cross-examination by Mr. Cullen, Detective Wood testified: “I told him that he could stop the search at any time.” (N.T., March 22, 2016, pp. 52-53). Again, the undersigned fully credited Detective Wood's testimony in its entirety.
Defendant signed the “consent to search” form, which was entered into evidence as CS-1 (N.T., March 22, 2016, p. 30). The detective testified that the handwritten identification information for the Acura, defendant's address, and the cell phone was all written on the form at the time defendant signed it, and defendant thus knew specifically what it was he was giving his permission to search (N.T., March 22, 2016, p. 33).
Detective Wood testified that his entire discussion with defendant inside the Acura was conducted calmly, with no threats, raised voices, or weapons displayed, and that defendant was not handcuffed during the discussion (N.T., March 22, 2016, pp. 28-34).
After defendant signed the “consent to search” form, defendant and Detective Wood exited the Acura. With defendant standing to the side, Detective Wood and another officer conducted a fifteen
minute search of the Acura, discovering nothing illegal at that time (N.T., March 22, 2016, pp. 34-35).
Retaining defendant's cell phone for a subsequent search, Detective Wood then gave defendant the keys to his Acura and asked him to drive to his residence for the search to which defendant had consented. Defendant agreed, and Detective Wood and other officers followed defendant to his home in separate vehicles (N.T., March 22, 2016, pp. 35-36). After arriving at defendant's home, Detective Wood and other officers searched the residence, ultimately discovering a large amount of what ultimately transpired to be heroin. A subsequent follow-up search of the Acura lead to the discovery of more heroin concealed in the vehicle (N.T., March 22, 2016, p. 5).Tr. Ct. Opin., at 4-8.
B. Procedural History
1. Lopez-Torralba's Criminal Trial
Based on these facts, Lopez-Torralba was arrested and charged with several drug counts, including possession of heroin and drug paraphernalia. Commonwealth v. Lopez-Torralba, No. 3427-15 (Pa. Ct. Com. Pl., Dec. 6, 2021); Doc. 13, Ex. C, at 1 (hereinafter “PCRA Ct. Opin.”). Sean E. Cullen, Esquire, was counsel for Lopez-Torralba at trial.PCRA Ct. Opin., at 1. Mr. Cullen filed several pre-trial motions to suppress. Id. In the motions, Mr. Cullen challenged the validity of Lopez-Torralba's consent prior to the search of his vehicle, home, and cellular phone. Id. After a hearing, the court denied the motions, finding that Lopez-Torralba consented to the search of his vehicle, home, and cellular phone. Id. at 2.
The trial court judge was the Honorable William J. Furber, Jr.
On March 30, 2016, following a jury trial, Lopez-Torralba was convicted of two counts of possession of heroin with intent to deliver, two counts conspiracy to possess heroin with intent to deliver, and one count possession of drug paraphernalia. Id. After a hearing, Lopez-Torralba was sentenced on August 4, 2016 to an aggregate sentence of not less than nine years and not more than eighteen years imprisonment. Id.
2. Direct Appeal
Lopez-Torralba filed a pro se notice of appeal from his sentence. Id. After Mr. Cullen moved and was permitted to withdraw, substitute counsel was appointed as appellate counsel. Id. Counsel filed a statement of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). Id. The trial court determined on December 14, 2016 that Lopez-Torralba's appeal was without merit and recommended the Superior Court affirm the judgment of sentence. Id. at 2; Tr. Ct. Opin., at 11.
On July 3, 2017, the Pennsylvania Superior Court (“Superior Court”) agreed and affirmed the judgment of sentence. See Commonwealth of Pa. v. Lopez-Torralba, No. 2769 EDA 2016 (Pa. Super. Ct. 2017); Doc. 13, Ex. B, at 1, 17. The Superior Court considered nine factors when evaluating whether Lopez-Torralba's consent was voluntary and, based on the totality of the circumstances, found Lopez-Torralba was aware he had a right to refuse a search of his vehicle, home, and cellular phone, but still elected to consent to the searches. Id. at 8-15. Lopez-Torralba did not file a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania. PCRA Ct. Opin., at 3.
3. Pennsylvania Post Conviction Relief Act (“PCRA”) Petitions
On November 21, 2017, Lopez-Torralba filed a pro se petition seeking post-conviction relief pursuant to the PCRA. Id. Lopez-Torralba's appointed counsel for the PCRA proceeding filed a “No Merit” letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1998). Id. Attached to the Finley letter was a letter from Mr. Cullen to Lopez-Torralba addressing the claims raised in the PCRA petition,including whether Mr. Cullen was ineffective by failing to argue certain evidence should be suppressed. Id.; Doc. 20-34, at 28. After Lopez-Torralba failed to respond to the Notice of Intent to Dismiss the PCRA petition without a hearing, the court dismissed the PCRA petition, but later vacated the order. PCRA Ct. Opin., at 4-5. Lopez-Torralba filed a response. Id. On June 8, 2018, after reviewing the filings and the record in the case, the court dismissed the pro se PCRA petition. Id. at 5.
The Honorable Patricia E. Coonahan reviewed the PCRA petitions.
Specifically, Lopez-Torralba claimed that Mr. Cullen was ineffective because he did not argue that the police lacked probable cause to stop Lopez-Torralba. Doc. 20-24, at 28. Therefore, he proffered the consent Lopez-Torralba gave to search his home was not valid, and any evidence found in the house should not be admitted as it was illegally obtained. Id. Mr. Cullen responded that it was clear to him that Lopez-Torralba had been involved in trafficking a large quantity of heroin and the investigatory detention did not lack probable cause. Id. Thus, the consent was directly related to a lawful investigatory detention and Lopez-Torralba's claim lacked merit. Id. at 30-31.
Lopez-Torralba filed a pro se notice of appeal and 1925(b) statement. Id. On September 10, 2018, the trial court issued an opinion recommending that the Superior Court affirm the court's June 8, 2018 order and dismiss the appeal. Id. at 5; Doc. 20-34, at 436. The Superior Court disagreed and remanded the case to the trial court for an evidentiary hearing on the ineffective assistance of counsel claim. PCRA Ct. Opin., at 5. New counsel was appointed. Id. at 5. Counsel filed an Amended PCRApetition asserting ineffective assistance of counsel based on Mr. Cullen's failure to challenge the stop of Lopez-Torralba's vehicle. Id. at 5-6. The Amended PCRA petition provided, in part, that “[t]rial counsel did not effectively challenge that the original stop was executed on neither reasonable suspicion nor probable cause. This illegality tainted the evidence seized and rendered the evidence the fruit of the poison tree.” Doc. 20-34, at 472-73.
The counseled Amended PCRA petition supersedes the claims raised in his pro se petition. Wanamaker v. Smith, No. 20-1332, 2021 WL 601543, at *5 (E.D. Pa. Feb. 16, 2021) (finding after PCRA counsel is appointed, counsel has duty to amend petitioner's pro se PCRA petition, present petitioner's arguments in legal terms or certify the claims lack merit, and providing that amended PCRA petition supersedes pro se petition). In any event, the court had already dismissed Lopez-Torralba's pro se PCRA petition before the Amended PCRA petition was filed, so the Amended PCRA petition controls. PCRA Ct. Opin., at 5.
Substitute counsel was later appointed who appeared at the evidentiary hearing and filed a motion for leave to permit discovery. PCRA Ct. Opin., at 6. The government responded to the discovery request and filed a separate answer and a motion to dismiss the Amended PCRA petition. Id. at 6-7. On June 8, 2020, the trial court issued an order granting the Commonwealth's motion, dismissing the Amended PCRA petition, and advising Lopez-Torralba of his right to appeal. Id. at 7-8; Doc. 20-34, at 390.
The order was not docketed until June 9, 2020. PCRA Ct. Opin., at 7; 20.
Meanwhile, Lopez-Torralba, still represented by counsel, filed a pro se notice of appeal from the dismissal order. PCRA Ct. Opin., at 8. On July 16, 2020,counsel filed a notice of appeal and a 1915(b) statement. Id. Lopez-Torralba separately moved to remand the case for a Grazier hearing to address Lopez-Torralba's request for leave to proceed pro se in the Superior Court. Id.
The Superior Court used July 16, 2020, as the filing date for the notice of appeal. PCRA Ct. Opin., at 8.
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
While the Grazier hearing was pending, the Superior Court issued a rule to show cause why the appeal should not be quashed as untimely filed. Id. The trial court filed an opinion with its recommended disposition. Id. at 9. Lopez-Torralba represented that he deposited his pro se notice of appeal with prison officials on July 5, 2020 and attached a cash slip as proof. Id. Counsel also separately responded. Id. Meanwhile, the Superior Court remanded the matter to the trial court for a Grazier hearing. Id.
The trial court granted the motion to proceed pro se, excused counsel, and permitted Lopez-Torralba to supplement the 1915(b) statement. Id. at 9-10. After the trial court decided the prison mailbox rule applied and deemed the appeal timely, it turned to Lopez-Torralba's supplemental 1915(b) statement and the appeal of the Amended PCRA petition. Id. at 10.
The Superior Court remanded the case on October 5, 2021. Commonwealth v. Lopez-Torralba, 266 A.3d 610 (Pa. Super Ct. Oct. 5, 2021) (not-precedential decision). The trial court held a hearing regarding the timeliness of the notice of appeal and the application of the prison mailbox rule. PCRA Ct. Opin., at 10. Shortly after the hearing, the Commonwealth sent a letter that it did not object to the court considering Lopez-Torralba's pro se notice of appeal timely based on the prison mailbox rule. Id. at 11.
Lopez-Torralba set forth three issues in his supplemental 1915(b) statement-only one of which is related to the claim he raises in the § 2254 petition currently pending before this Court. Id. at 11-12. Lopez-Torralba asserted that:
(1) The PCRA court erred in denying relief based on trial counsel's proffered “reason” for failing to request suppression of all evidence seized in this case and Defendant's statement because of exploitation of an illegal arrest in violation of the Fourth Amendment to the United States Constitution an[d] Article I, Section 8, of the Pennsylvania Constitution.
The Defendant's seizure and transport to the Norristown Police Department clearly constituted “custodial detention” which must be supported by probable cause. . . It is clear that an attorney's ignorance on a point of law that is fundamental to the case combined with counsel's failure to perform basic research on that point of law is a quintessential example of unreasonable performance under Strickland v. Washington, 466 U.S. 688 (1984) . . .Trial court's inaction here was based entirely on ignorance of the applicable precedents and thus devoid of any reasonable bases [sic] designed to effectuate the Defendant's interest.Id. at 11-12.
The PCRA court in its December 6, 2021 decision analyzed the effectiveness of Mr. Cullen's representation pursuant to Commonwealth v. Natividad, 938 A.2d 310, 321 (Pa. 2007)). PCRA Ct. Opin., at 14-15. First, the court addressed Mr. Cullen's conduct in the trial court. Id. at 15-17. Regarding the challenge to the initial interaction with the Montgomery County detectives, Mr. Cullen stated that upon his review of the police reports, he did not uncover any inconsistencies or issues regarding the police's interaction with Lopez-Torralba. Id. at 16. Additionally, “he informed the Defendant that challenging the investigatory detention and/or probable cause arrest was ‘frivolous,' not viable, and that the stop of the Defendant's vehicle was legal and based upon probable cause.” Id. Accordingly, Mr. Cullen focused at trial on Lopez-Torralba's consent to search, not the legality of the initial encounter. Id. Mr. Cullen conveyed that plan to Lopez-Torralba, who did not object to the issues Mr. Cullen presented in the suppression motion. Id. For these reasons, the PCRA court determined that Lopez-Torralba failed to demonstrate that “the alternate strategy not selected offered a potential for success substantially greater than the course actually pursued.” Id. at 17. The PCRA court suggested the other two claims also lacked merit, it dismissed Lopez-Torralba's appeal, and recommended the Superior Court affirm the court's June 8, 2020 order dismissing the Amended PCRA petition. Id. at 20.
Lopez-Torralba appealed the June 8, 2020 decision.March 24, 2022 Pa. Super. Ct. Opinion; Ex. D, at 1 (hereinafter “PCRA App. Ct. Opin.”). The Superior Court first addressed the basis for the ineffective assistance of counsel claim. Id. at 2. Lopez-Torralba argued the PCRA court erred when it did not grant a new trial based on Mr. Cullen's ineffective assistance after counsel failed to raise or argue at the suppression hearing that the evidence seized from Lopez-Torralba's home and cell phone were a result of an illegal arrest in violation of Article I, section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. Id. Namely, Lopez-Torralba claimed that a challenge to his custodial detention, rather than the other grounds raised in the suppression motion, would have resulted in the suppression of evidence (heroin) he alleged was obtained from the illegal custodial detention. Id. at 4.
Both Lopez-Torralba and the Commonwealth filed supplemental briefs addressing the PCRA court's opinion. PCRA App. Ct. Opin., at 2, n.2.
After citing the same ineffective assistance of counsel standard as the PCRA court, the Superior Court found that the police possessed probable cause to believe Lopez-Torralba was engaged in the unlawful sale and distribution of illegal narcotics when they took him into custody. Id. In support, the Superior Court recounted the testimony of the detectives regarding the CI, Lopez-Torralba's interaction with Basurto-Leal, including leaving the home with a “brick” and getting into a car with her, and the circumstances that lead to Lopez-Torralba's detention. Id. at 5-8. The Superior Court found that because probable cause existed under the totality of the circumstances to detain Lopez-Torralba, a suppression motion challenging the search based on lack of probable cause would not have been successful. Id. at 8. Because Lopez-Torralba's purported basis for the suppression motion lacked arguable merit, Mr. Cullen was not ineffective for failing to raise it. Id. (citing Commonwealth v. Koehler, 36 A.3d 121, 140 (Pa. 2012)). Therefore, this PCRA claim (and others he raised) failed, and the Superior Court affirmed the order dismissing Lopez-Torralba's Amended PCRA petition. PCRA App. Ct. Opin., at 1.
Lopez-Torralba did not appeal the decision to the Pennsylvania Supreme Court.
4. § 2254 Petition
On July 1, 2022,Lopez-Torralba filed the instant pro se habeas petition in this court. Doc. 1, at 27; Doc 1-1, at 2. Lopez-Torralba raises a single ground on which to grant habeas relief. Doc. 1, at 10; Doc. 1-1, at 2, 18. He asserts that:
Lopez-Torralba's petition is dated July 1, 2022. Doc. 1, at 27 The docket, however, indicates a filing date of July 11, 2022. Because Lopez-Torralba is a prisoner, the mailbox rule applies. This Court deems the petition filed on July 1, 2022-the date it was given to prison officials for mailing. See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). After Lopez-Torralba submitted a proper PCRA petition and appeal to the Pennsylvania Superior Court tolling the deadline for filing the habeas petition, he filed a timely habeas petition. See 28 U.S.C. § 2244(d)(1). Because the Commonwealth does not object to the timeliness of the petition, timeliness is not addressed in any more detail here. Doc. 1, at 25; Doc. 13, 6-10.
TRIAL COUNSEL RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE IN FAILING TO REQUEST SUPPRESSION OF EVIDENCE SEIZED AND STATEMENTS MADE BY PETITIONER BASED ON EXPLOITATION BY THE POLICE OF AN UNLAWFUL CUSTODIAL DETENTION/ARREST IN VIOLATION OF ARTICLE I, SECTION 8, OF THE PENNSYLVANIA CONSTITUTION AND THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTIONId.
The Commonwealth responded to the habeas petition. Doc. 13. The Commonwealth asserts that Lopez-Torralba cannot establish the Superior Court's decision to deny his ineffective assistance of counsel claim, based on Mr. Cullen's failure to argue the arrest was without probable cause, was contrary to or involved an unreasonable application of clearly established law. Doc. 13, at 6-10. Hence, Lopez-Torralba is not entitled to any habeas relief. Id. at 10. Lopez-Torralba filed a reply. Doc. 20. After the petition, response and reply were filed, the matter was referred to me for a Report and Recommendation.
The Honorable Gene E.K. Pratter originally referred the case to the Honorable Richard A. Lloret. Doc. 4. The Clerk then reassigned the case to me on October 26, 2022. Doc. 12.
II. LEGAL STANDARDS
A. Habeas Corpus Review
Pursuant to 28 U.S.C. § 2254(a), a federal court “shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Lopez-Torralba's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The relevant provisions of AEDPA in this case provide that when the state courts have already adjudicated the merits of claims raised in a federal habeas petition, the federal court may not grant habeas relief unless the adjudication of the claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2). An “unreasonable application” of law is when “the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
The AEDPA standard is purposely “difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (citations and quotations omitted). Habeas review exists as “a guard against extreme malfunctions in the state criminal justice system,” and is “not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
Factual determinations are given considerable deference under AEDPA. Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004). “This Court must accept the PCRA Court's factual findings and credibility determinations unless rebutted by clear and convincing evidence to the contrary.” Richard v. Klinefelter, No. 20-cv-6326, 2023 WL 2634513, at *8 (E.D. Pa. Feb. 1, 2023) (citing 28 U.S.C. § 2254(e)(1)) (stating state court determination of factual issue is presumed correct), approved and adopted, March 24, 2023; Campbell v. Vaughn, 209 F.3d 280, 290 (3d Cir. 2000) (additional citations omitted). Here, Lopez-Torralba seemingly does not dispute any of the factual determinations of the state court. Doc. 1-1, at 21; Doc. 13, at 7.
Lopez-Torralba refers to “undisputed facts” several times in his memorandum of law. He states, in part, that, “Given the undisputed facts in this case ....,” Mr. Cullen's decision not to seek suppression of the evidence based on a Fourth Amendment violation was not an objectively reasonable strategy. Doc. 1-1, at 21; see also id. at 22 (“Given the undisputed facts here, the Superior Court's determination that that Petitioner was “arrested” was objectively reasonable . . . .”); Id. at 29 (“In sum, given the undisputed facts of this case, no competent lawyer would fail to argue ....”). While the Commonwealth also acknowledges that Lopez-Torralba “refers to the probable cause determination as an unreasonable determination of the facts” in another part of his memorandum, see id. at 18, Lopez-Torralba also states that “the probable cause assessment is a legal conclusion, based on the facts petitioner calls undisputed.” Id. Therefore, we find that Lopez-Torralba generally raised no issue with the factual determinations of the state court with one exception. Lopez-Torralba specifically asserts that drugs were not discovered after a search of the car he was driving with Basurto-Leal, which he claims Mr. Cullen and the trial court both incorrectly reported. Id. at 9; 30, n.6. The PCRA court, however, does not mention or rely on the fact that drugs were found after the car was searched when it denied PCRA relief. See generally PCRA Ct. Opin., Doc. 13, Ex. C. Thus, the factual findings of the PCRA court are accepted. See also Doc. 13, at 7.
B. Exhaustion Standards
The exhaustion requirement is “predicated on the principle of comity which ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights.” Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000) (citation omitted). Exhaustion is satisfied if a claim has been “fairly presented” to the state courts,meaning petitioner must have presented to the state courts the same factual and legal theory that supports the federal habeas claim. Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted); Landano v. Rafferty, 897 F.2d 661, 669 (3d Cir. 1990) (citations omitted). The habeas petitioner bears the burden of proving that petitioner has exhausted all state remedies. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citation omitted).
State prisoners must “give 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, this means presenting the claim through the Superior Court on direct or collateral review. Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). Generally, however, a petitioner should wait to raise ineffective assistance of trial counsel claims until collateral review. See Commonwealth v. Grant, 813 A.2d 726, 738-39 (Pa. 2002), abrogated on other grounds by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021); Artache v. Pa., No. 16-3753, 2021 WL 7707764, *6 (E.D. Pa. Nov. 4, 2021) (noting it is understood that Pennsylvania law does not permit ineffective assistance of trial counsel claims on direct appeal), approved and adopted, February 17, 2022.
Lopez-Torralba asserts that he has exhausted his administrative remedies. Doc. 1-1, at 2, 11-16. Upon review of the record, he did, in fact, present to the PCRA courts the same ineffective assistance of counsel claim regarding the suppression motion as he raises in his habeas petition. See Doc. 20-34, at 472-73 (counseled PCRA petition); PCRA Ct. Opin., at 2-8; PCRA Appellate Ct. Opin., at 14-17; see Landano, 897 F.2d at 669. Accordingly, the claim has been exhausted, and I turn to the merits of the ineffective assistance of counsel claim.
C. Ineffective Assistance of Counsel Standard
The Supreme Court uses a two-prong test a petitioner must satisfy to show that counsel did not provide effective assistance of counsel as the Sixth Amendment guarantees. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner must demonstrate both that counsel's representation fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 686-88, 693-94; Harrington, 562 U.S. at 104.
As to the reasonableness prong, a petitioner must show that counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687). A strong presumption exists that “counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (citation and quotation omitted). Courts should be highly deferential to “counsel's reasonable strategic decisions and guard against the temptation to engage in hindsight.” Eden v. Oberlander, No. 21-5076, 2022 WL 17541406, at *5 (E.D. Pa. Nov. 9, 2022) (citing Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002)), approved and adopted, December 7, 2022.
To satisfy the prejudice prong of the Strickland test, a petitioner must demonstrate that “counsel's errors were so serious as to deprive [the petitioner] of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. Hence, a petitioner must show “a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different.” Id. at 694. This evaluation is made considering the totality of the evidence before the judge or jury. Id. at 695.
In the case of an ineffective assistance of counsel claim evaluated under a § 2254(d) standard, a “doubly deferential judicial review” applies since the question before a federal court is not whether the state court's determination was correct, but “whether the determination was unreasonable.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Burt v. Titlow, 571 U.S 12, 15 (2013) (review of ineffectiveness claims is “doubly deferential” and requires federal court to give “both the state court and the defense attorney the benefit of the doubt.”). In other words, “‘it is not enough to convince a federal habeas court that, in its independent judgment,' the state court misapplied Strickland.” Giggetts v. Clark, No. 21-1817, 2022 WL 2792213, at *2 (quoting Bell v. Cone, 535 U.S. 685, 699 (2002)). Rather, the question is whether any reasonable argument exists that counsel satisfied Strickland's deferential standards. Harrington, 562 U.S. at 105. Importantly, counsel cannot be deemed ineffective for failing to raise a meritless claim. Preston v. Superintendent Graterford SCI, 902 F.3d 365, 379 (3d Cir. 2018) (quotations and citation omitted).
III. DISCUSSION
A. Petitioner's Ineffective Assistance of Counsel Claim
Lopez-Torralba's only habeas claim is based on counsel's failure to argue in a pre-trial motion that the heroin uncovered in the house search should have been suppressed because the original stop of Lopez-Torralba was an unlawful custodial detention/arrest that violated the Fourth Amendment. Doc. 1, at 15; Doc. 1-1, at 8-10. Lopez-Torralba essentially claims that Mr. Cullen's failure to move to suppress the evidence on that ground constituted ineffective assistance of counsel. Doc. 1, at 15; Doc. 1-1, at 20-31.
The same ineffective assistance of counsel argument was raised during the PCRA proceedings. PCRA Ct. Opin., at 11-12. The PCRA court evaluated the claim under the test set forth in Natividad, 938 A.2d at 321 (citing, inter alia, Strickland, 466 U.S. at 668). Id. at 15. The test under Natividad considers whether an underlying legal claim has arguable merit, whether counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest, and whether there is prejudice (to the effect there was a reasonable probability of a different outcome if not for counsel's error). Id.
After analyzing Mr. Cullen's conduct, the PCRA court found Lopez-Torralba could not demonstrate that an alternate strategy not selected offered a potential for success substantially greater than the course actually pursued. Id. at 17. The PCRA court pointed out that, after investigation, Mr. Cullen viewed the challenge to the investigatory detention as frivolous because the stop of the car was legal and based on probable cause. Id. at 16. Additionally, nowhere in the notes of testimony did Lopez-Torralba disagree with Mr. Cullen's decision regarding which issues to raise in a suppression motion. Id. Accordingly, the PCRA court denied relief and recommended the Superior Court affirm the order dismissing the Amended PCRA petition. Id. at 20. The Superior Court affirmed. PCRA App. Ct. Opin., at 1. As previously noted, the Superior Court reasoned that because probable cause to detain Lopez-Torralba existed under the totality of the circumstances, a motion to suppress challenging the search lacked merit and, in turn, Mr. Cullen was not ineffective for failing to raise it. Id. at 8.
Upon review of the record, Lopez-Torralba has failed to demonstrate the state court adjudication of the ineffective assistance of trial counsel claim, “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established” United States Supreme Court law. See 28 U.S.C. § 2254(d). Importantly, Pennsylvania's standard for ineffective assistance of counsel is the same as Strickland's standard. See Boyd v. Waymart, 579 F.3d 330, 334 n.2 (3d Cir. 2009) (citing Commonwealth v. Tedford, 960 A.2d 1, 12 (Pa. 2008) (additional citations omitted)). The test the PCRA court used to evaluate Lopez-Torralba's ineffective assistance of counsel claim mirrored that of Strickland and did not result in a decision contrary to, or involved an unreasonable application of, clearly established law. See Natividad, 938 A.2d at 321; Williams, 529 U.S. at 406 (stating “a run-of-the-mill state court decision applying the correct legal rule from our cases to the facts of a prisoner's case would not fit comfortably within § 2254(d)(1)'s ‘contrary to' clause.”) After Mr. Cullen reviewed the record and assessed the police reports, he found no inconsistences or potential problems with the police's interaction with Lopez-Torralba during the stop and, in his opinion, believed the stop of the vehicle was legal and supported by probable cause. PCRA Ct. Opin., at 16. The PCRA court determined, and the Superior Court agreed, that Mr. Cullen's decision not to challenge the initial stop of the car based on Fourth Amendment grounds could not serve as the basis for an ineffective assistance of counsel claim. Id. at 16-17; PCRA App. Opin., at 8. Because Lopez-Torralba's argument was meritless, Mr. Cullen's failure to move to suppress evidence on that ground resulted in no prejudice to Lopez-Torralba. See Preston, 902 F.3d at 379. This was a reasonable application of Strickland.
Moreover, Lopez-Torralba has not shown that the state court adjudication “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.” Based on the totality of circumstances presented in this case-the information provided to the detectives from the CI, Lopez-Torralba's interaction with known drug trafficker Basurto-Leal, Lopez-Torralba leaving the home with Basurto-Leal and a “brick” appearing to be a brick of drugs, and getting into a car with Basurto-Leal-probable cause existed for the police to pull over the car, detain Lopez-Torralba, and later search his house for drugs, based on his freely given consent. PCRA Ct. App. Opin., at 3-8; see also District of Columbia v. Wesby, 138 S.Ct. 577, 586 (2018) (when evaluating probable cause for arrest we examine events leading up to arrest and consider whether historical facts, viewed objectively from reasonable police officer, amounted to probable cause) (quotations and citations omitted); see also Commonwealth v. Dennis, 612 A.2d 1014, 1015-16 (Pa. Super. Ct. 1992) (noting probable cause exists when facts and circumstances within officer's knowledge are sufficient to warrant prudent individual to believe offense was committed, and defendant was one who committed it) (citations omitted), appeal denied, 634 A.2d 218 (1993). Furthermore, as discussed above, Mr. Cullen informed Lopez-Torralba he decided not to raise the challenge in a pre-trial motion to suppress, and Lopez-Torralba did not object. See PCRA Ct. Opin., at 16. This Court declines to accept Lopez-Torralba's invitation to question the PCRA Court's probable cause assessment. See Harrington, 562 U.S. at 102-03 (role of habeas corpus is to guard against “extreme malfunctions” in state criminal justice systems and is not substitute for ordinary correction review through appeal) (quotations and citations omitted).
Because the state court adjudication of the issue did not result in a decision contrary to, or involved an unreasonable application of, clearly established Supreme Court law, and did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, Lopez-Torralba's ineffective assistance of counsel claim fails. See 28 U.S.C. § 2254(d).
Among other arguments,Lopez-Torralba urges this Court to find Mr. Cullen did not seek to suppress the evidence resulting from the “illegal” car search because he was incompetent and had no legal strategy. Doc. 1-1, at 20-21; 29. The record in this case indicates otherwise. As previously discussed, Mr. Cullen chose not to challenge the investigatory stop/custody based on trial strategy and instead opted to focus on Lopez-Torralba's consent because, in his professional judgment, any challenge was meritless. See PCRA Ct. Opin., at 16; see also PCRA App. Ct. Opin., at 4; 8; N.T. 3/22/16 Motion to Suppress hearing, Doc. 20-28, at 10-11; 62-63; 67. Again, an ineffective assistance of counsel claim raised on habeas review may not be used as an avenue to attack and second-guess trial counsel's strategy. See Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (providing informed strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchangeable) (citing Strickland, 466 U.S. at 689-90) (additional citation omitted); Marshall, 307 F.3d at 85 (stating Strickland inquiry requires courts to be “highly deferential” to counsel's strategic decisions and “guard against the temptation to engage in hindsight”). Accordingly, here I will not use habeas review as an avenue to question Mr. Cullen's trial strategy.
To the extent Lopez-Torralba attempts to re-argue in detail the merits of his case, the court will not entertain his arguments in light of its limited scope of review.
B. Certificate of Appealability
Generally, a certificate of appealability will only issue “if an applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a district court rejects constitutional claims on the merits a petitioner must “‘show that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 332, 336 (2003) (internal quotations and citations omitted). In this case, I submit that jurists of reason would not find that the Court's disposition of the case should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Accordingly, I recommend that a certificate of appealability should not issue in this case.
IV. CONCLUSION
As the sole ineffective assistance of counsel claim Lopez-Torralba raises in his petition lacks merit, Lopez Torralba is not entitled to habeas relief. Accordingly, I recommend that the petition be denied with prejudice. My recommendation is set forth below.
RECOMMENDATION
AND NOW, on this 18th day of October 2023, it is respectfully recommended that the petition for writ of habeas corpus (Doc. 1) is DENIED with prejudice. It is further recommended that there is no probable cause to issue a certificate of appealability. Petitioner may file objections to this Report and Recommendation within fourteen days after being served with a copy. See generally 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).