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McNEIL v. KLEM

United States District Court, E.D. Pennsylvania
Jun 7, 2004
Civil Action No. 04-258 (E.D. Pa. Jun. 7, 2004)

Opinion

Civil Action No. 04-258.

June 7, 2004


REPORT AND RECOMMENDATION


Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution at Mahanoy, in Frackville, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.

I. PROCEDURAL HISTORY

On February 1, 1999, following a jury trial presided over by the Honorable William J. Furber, Jr., petitioner was convicted of murder in the third degree, robbery, theft of movable property, possession of a controlled substance, and possession with intent to deliver a controlled substance. Specifically, petitioner was convicted of killing a known drug dealer at the dealer's residence and absconding with the dealer's safe, which contained cash and crack cocaine. On August 11, 1999, the trial court sentenced petitioner to imprisonment for twenty-five to fifty years.

Petitioner filed several post-sentence motions. On January 18, 2000, after four days of evidentiary hearings, the court denied all of petitioner's motions. Petitioner appealed to the Superior Court, which affirmed his sentence on November 21, 2000. The Pennsylvania Supreme Court finalized petitioner's conviction by denying his Request for Allowance of Appeal on April 26, 2001.

Petitioner then filed a pro se petition for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. § 9541, et seq., on July 30, 2001, alleging the following:

(1) The Commonwealth engaged in prosecutorial misconduct which deprived petitioner of a fair trial, to wit:

(a) Improper production of DNA stipulation;

(b) Improper reference to the results of a polygraph examination;

(c) Intimidation of witnesses;

(d) Disposal of evidence, to wit: a towel with blood sample;
(e) Inability of defense to test blood on shoelace due to lack of sample;

(f) Disappearance of autopsy tape;

(g) Watch pin at crime scene not petitioner's; and

(h) Hairs on victim's hands not petitioner's.

(2) Defendant is entitled to a new trial as a result of after discovered evidence, to wit: testimony of Amy Anderson.

(3) Ineffective assistance of counsel:

(a) Counsel failed to locate, interview and subpoena Ms. Anderson;

(b) Counsel failed to object to the DNA stipulation;

(c) Counsel failed to object to the government's polygraph comment;
(d) Counsel failed to object to Investigator Brown's testimony concerning the disposal of the material from the towel;

(e) Counsel failed to ask for a continuance;

(f) Counsel failed to request that the jury be polled; and

(g) Counsel failed to preserve the Batson issue.

(4) The Commonwealth violated Brady v. Maryland and its progeny by failing to disclose exculpatory evidence.
(5) The trial court erred in failing to suppress defendant's statement/confession, on the basis that the statement was not given voluntarily, but rather was the product of coercion, deceit, and duress.

Petitioner's court-appointed counsel filed a "no merit" letter, requesting to be removed from the case pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). Subsequently, the trial court conducted an independent review of the record and noticed the court's intention to dismiss the PCRA petition. The petition was dismissed on April 2, 2002.

Petitioner then filed a pro se Notice of Appeal. Pursuant to 42 Pa. C.S.A. § 1925(b), the court ordered petitioner to produce a Concise Statement of Matters Complained of on Appeal, but petitioner failed to do so. As a result, the trial court affirmed the dismissal of the petition on July 11, 2002.

Petitioner subsequently appealed to the Superior Court, which denied his petition for oral argument on June 30, 2003, and affirmed the trial court's dismissal of his petition the following day. Petitioner filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, which was denied on October 23, 2003.

On January 21, 2004, petitioner filed the instant Petition for Writ of Habeas Corpus, alleging the following:

(1) Petitioner's conviction was obtained by action of a jury which was unconstitutionally selected and impaneled; and

(2) Petitioner was denied his right to appeal.

Respondent retorts that petitioner's first claim is procedurally defaulted due to petitioner's failure to comply with state procedural rules regarding timely filings. Additionally, petitioner's second claim was never fully presented to the state courts, and thus is similarly procedurally defaulted.

II. PROCEDURAL DEFAULT

Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c) (1994); Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059, reh'g denied, 490 U.S. 1076, 109 So. Ct. 2091 (1989). In other words, a petitioner must invoke "one complete round of the state's established appellate review process," in order to exhaust his remedies. O'Sullivan, 526 U.S. at 845. A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demand, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3rd Cir. 1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise they risk depriving the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3rd Cir. 1993).

However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, reh'g denied, 501 U.S. 1277, 112 S.Ct. 27 (1991); McCandless v. Vaughn, 172 F.3d 255, 260 (3rd Cir. 1999). The procedural default barrier precludes federal courts from reviewing a state petitioner's federal claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 729. "In the context of direct review of a state court judgment, [this] doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. "In the absence of [the procedural default doctrine] in federal habeas, habeas petitioners would be able to avoid the exhaustion doctrine by defaulting their federal claims in state court." Id., at 732.

As noted above, respondent contends that petitioner's failure to fully present his second claim to the state courts constitutes a failure to exhaust, which, in turn, results in procedural default of petitioner's claim. Petitioner first argued that he was denied his right to appeal in his brief to the Pennsylvania Supreme Court. Because petitioner failed to raise this issue in the lower courts, and because he is foreclosed from doing so now, petitioner's claim is procedurally defaulted. Thus, the petition must be dismissed as to this claim.

Respondent further contends that petitioner's first claim, though fully presented to the state courts, was untimely, and therefore similarly procedurally defaulted. After petitioner's PCRA petition was dismissed, he filed a pro se Notice of Appeal. Pursuant to 42 Pa. C.S.A. § 1925(b), the court ordered petitioner to produce a Concise Statement of Matters Complained of on Appeal, but petitioner failed to do so. As a result, the trial court affirmed the dismissal of the petition on July 11, 2002. Only after this dismissal did petitioner raise the claim that his conviction was obtained by action of a jury which was unconstitutionally selected and impaneled. As such, the claim was raised in an untimely manner and is therefore procedurally defaulted. Because petitioner has neither shown that he was unable to comply with the state procedural rules nor alleged a fundamental miscarriage of justice, this court is precluded from addressing petitioner's claim. As such, we must dismiss the habeas petition as to this claim, and in its entirety.

Therefore, I make the following:

RECOMMENDATION

AND NOW, this ____ day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.


Summaries of

McNEIL v. KLEM

United States District Court, E.D. Pennsylvania
Jun 7, 2004
Civil Action No. 04-258 (E.D. Pa. Jun. 7, 2004)
Case details for

McNEIL v. KLEM

Case Details

Full title:HOWARD LEE McNEIL, Petitioner, v. EDWARD KLEM, et al., Respondents

Court:United States District Court, E.D. Pennsylvania

Date published: Jun 7, 2004

Citations

Civil Action No. 04-258 (E.D. Pa. Jun. 7, 2004)