Opinion
Civil Action No. 03-CV-4133.
May 13, 2004
REPORT AND RECOMMENDATION
Before this court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, Ahmeen Mustafa, is currently incarcerated at the State Correctional Institution at Dallas, Pennsylvania. For the reasons below, it is recommended that Mustafa's petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On December 3, 1993, following a jury trial in the Court of Common Pleas of Philadelphia County, Mustafa was found guilty of second-degree murder, robbery, and conspiracy. Mustafa was sentenced to a term of life imprisonment. The Superior Court of Pennsylvania affirmed judgment of sentence on June 27, 1996.Commonwealth v. Mustafa, 683 A.2d 313 (Pa.Super. 1996) (table). Mustafa did not seek allowance of appeal in the Supreme Court of Pennsylvania.
On March 11, 1997, Mustafa filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541 et seq. Counsel was appointed and an amended petition was filed. In addition, Mustafa filed a motion to proceed pro se with an amended petition raising issues not raised by appointed counsel. On April 17, 1998, the PCRA court dismissed the counseled petition without addressing Mustafa's pro se filings.
On appeal, the Superior Court reversed the order of the PCRA court and remanded the matter to the PCRA court to colloquy Mustafa and determine whether he was knowingly and intelligently waiving his right to counsel and to address the issues raised in his pro se petition. Mustafa appeared before the PCRA court, waived his right to be represented by counsel, and then rested on his pleadings. Thereafter, the PCRA court dismissed the petition. On April 8, 2002, the Superior Court affirmed the order of the PCRA court. Commonwealth v. Mustafa 803 A.2d 795 ( Pa. Super. 2002) (table). The Supreme Court denied allocatur on September 18, 2002. Commonwealth v. Mustafa, 808 A.2d 571 (Pa. 2002) (table).
On July 17, 2003, Mustafa filed the instant pro se petition for a writ of habeas corpus, dated September 29, 2002. He explained that his petition had been provided to the prison officials for mailing in September, 2002, but he had just learned that it had never been mailed when it was returned to him. As a result, this court deemed the petition filed as of September 29, 2002, and ordered the Commonwealth to address the claims presented.
DISCUSSION
It is well-settled that absent exceptional circumstances a federal court will not entertain a petition for a writ of habeas corpus until the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). The policy of this total exhaustion doctrine is rooted in the tradition of comity: the state must be given the "initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights." O'Sullivan, 526 U.S. at 844-45; Picard, 404 U.S. at 275. Exhaustion does not require that the highest state court rule on the merits of the petitioner's claims, but merely that the court be given the opportunity to review them. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989).
In order for petitioner to satisfy the exhaustion requirement, he must fairly present every claim included in a federal habeas petition to the highest level of the state courts. O'Sullivan, 526 U.S. at 846-47; Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). The burden of showing that all claims were fairly presented to the state's highest court is upon the habeas petitioner. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993)). When a "state claim is not exhausted because it has not been `fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement may be satisfied because there is `an absence of available state corrective process.'" Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). Where the petitioner has not presented claims to the state courts, and no state remedy remains available, the unexhausted claims are deemed exhausted but procedurally barred. O'Sullivan, 526 U.S. at 848 (citations omitted).
In this petition, Mustafa raises the following claims of ineffective assistance of counsel for: 1) failing to impeach a Commonwealth witness with a prior statement and/or call as a witness the police officer to whom the statement was made; 2) failing to investigate an eyewitness; and 3) advising him that he could not testify. Mustafa also claims that the PCRA court erred in not conducting an evidentiary hearing on his claims.
In order to be eligible for federal habeas relief, Mustafa must establish that the state court's adjudication of the merits of his claims: "1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the 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), (d)(2); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1504 (2000). In addition, any factual determinations made by the state court shall be presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e).
The United States Supreme Court, in Williams, set forth a two-part test for analyzing claims under § 2254(d), making it clear that the "contrary to" and "unreasonable application" clauses of § 2254(d) have independent meaning. First, under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently from the Supreme Court on a set of materially indistinguishable facts. Id. at 1519. Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 1520. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was unreasonable." Id. "A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522. See also Hameen v. Delaware, 212 F.2d 226, 235 (3d Cir. 2000) (discussing Williams); Early v. Packer, 537 U.S. 3, 10-11 (2002) (federal courts may not substitute their own judgment for that of the state court).
When reviewing claims of ineffective assistance of counsel, this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different, absent the alleged ineffectiveness of counsel. Strickland v. Washington, 446 U.S. 668, 695 (1984). To prevail, petitioner must satisfy a two-pronged test by establishing that: (1) counsel's performance was deficient; and (2) counsel's deficient performance prejudiced the defense. Id. at 687.
A strong presumption exists that counsel's conduct falls within the wide range of reasonably professional assistance. Id. at 689. To demonstrate that counsel's performance was deficient, the petitioner must show that counsel's representation fell below an objective standard of reasonableness based on the facts of the particular case, viewed as of the time of counsel's conduct.Id. at 688, 690. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694. A reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. If it is easier to dispose of an ineffectiveness claim for lack of the requisite prejudice, that course should be followed. Id. at 697. The determination of whether a state court erred in denying a claim of ineffective assistance of counsel requires this court to review whether the state court's application of Strickland was objectively unreasonable. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). In addition, "counsel cannot be deemed ineffective for failing to raise a meritless claim." Id. at 203 (citingCommonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999)).
First, Mustafa claims that his trial counsel was ineffective for failing to impeach Commonwealth witness Ronald Caison with an allegedly prior contradictory statement of identification and/or failing to call as a witness the police officer to whom the statement was made. In considering this claim, the PCRA court found as follows:
Mustafa claims that counsel was ineffective for failure to impeach Ronald Caison using a prior inconsistent statement. Ronald Caison, an employee of the store, who was acquainted with Mustafa, witnessed the robbery and identified Mustafa at trial. The statement at issue is the interview of Police Officer Sean Corbette who spoke with Caison at the scene of the crime. In the statement Corbette summarized the information that Caison had given him and noted that the store had been robbed by "two unidentified black males." The record shows that Corbette referred to the robbers as "two unidentified black males" because Caison did not name Mustafa or Harris when he spoke to Corbette at the scene of the crime. This is not a statement made by Caison and there is no showing that he adopted it. It is axiomatic that when attempting to discredit a witness' testimony by means of a prior inconsistent statement, the statement must have been made or adopted by the witness whose credibility is being impeached. Commonwealth v. Simmons, 662 A.2d 621 (1995); Commonwealth v. Lively, 710 A.2d 7 (1992); Pa.R.E. 613(a). Accordingly, the statement of Police Officer Corbette could not have been used to cross-examine Caison.
It is well established that for a statement to be used for impeachment, it must actually be inconsistent with, and not just different from, trial testimony. Mere omissions from prior statements do not render prior statements inconsistent for impeachment purposes. Commonwealth v. Elliot, 700 A.2d 1243, 1251 (1997); Commonwealth v. Johnson, 758 A.2d 166 (Pa.Super. 2000). Thus, even had the statement been adopted, it could not be used to impeach Caison as it is not inconsistent with either his trial testimony or his statement to police.
The record shows that counsel thoroughly and completely crossexamined Caison on his failure to provide the names of the perpetrators when first interviewed at the scene of the crime. Caison explained that he was not asked for their names at that time and that he was so shocked by the shooting that it did not occur to him to volunteer their names to the police. Caison provided the police with the names of both perpetrators during his interview at the Police Administration Building about an hour after the offense and provided full and accurate descriptions of both.Commonwealth v. Mustafa, CP 9308-3261 1/1 (PCRA slip op. at 3-4).
The record reveals that Ronald Caison worked at the variety store owned by the victim of this crime, Owen Edwards. At trial, Caison identified Mustafa and his accomplice as the men who robbed the store and murdered Edwards. Trial counsel thoroughly cross-examined Caison concerning his identification testimony. On cross-examination, Caison acknowledged that he did not identify the defendants by name when he was initially questioned by the police at the scene of the crime. Caison testified that he was not asked for their names and it did not occur to him to provide them. These facts support the PCRA court's determination that trial counsel was not ineffective. Trial counsel brought this delay in naming the perpetrators of this crime to the attention of the jury. It was for the jury to decide the credibility of Caison's explanation.
Mustafa contends that trial counsel should have used Caison's statement to Officer Corbette to impeach his trial testimony. However, as discussed by the PCRA court, there was no legal basis for using a statement not adopted by Caison in an effort to impeach him. Commonwealth v. Simmons, 662 A.2d 621, 245 (1995) ("when attempting to discredit a witness' testimony by means of a prior inconsistent statement, the statement must have been adopted by the witness whose credibility is being impeached. A written report which is only a summary of the words of the victim and not verbatim notes from the victim cannot be used to impeach the witness on cross-examination since it would be unfair to allow a witness to be impeached on a police officer's interpretation of what was said rather than the witness' verbatim words.") Trial counsel cannot been found ineffective for failing to do that which is prohibited by state law. Moreover, Mustafa cannot establish prejudice because the trial court would not have permitted trial counsel to impeach in this manner. Thus, this court must conclude that the state court's rejection of this claim without an evidentiary hearing was not objectively unreasonable. Werts, 228 F.3d at 203-204.
Next, Mustafa claims that trial counsel "was ineffective for failing to investigate an eyewitness who told police that suspect number two, the getaway driver, never got out of the car to go into the store and, therefore, could not be identified." The Commonwealth asserts that this claim is procedurally defaulted and not subject to federal habeas review.
The PCRA court considered and rejected this claim finding:
. . . This argument is based on a radio transmittal from an officer on the scene in which he said, "Yeah, we got known doers who fled in a brown Datsun . . . number two never got out of the car." The bald claim, however, is the extent of Mustafa's argument as there is no witness named, no affidavit as to what the witness would say if called to testify and no showing that he/she would have been available and willing to testify. Mustafa is not entitled to a new trial on this basis.Commonwealth v. Mustafa, CP 9308-3261 1/1 (PCRA slip op. at 4-5). The Superior Court agreed with the reasoning of the PCRA court and affirmed on the basis of the PCRA opinion.Commonwealth v. Mustafa, No. 3288 EDA 2000 (slip op. at 3).
Where a habeas petitioner contends that trial counsel was ineffective for failing to call a witness, he must establish that the witness was available to testify at the pertinent proceeding and identify the nature of that witness's testimony. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (petitioner cannot establish ineffective assistance of counsel for failure to call a witness in the absence of specific allegation or offer of evidence that testimony was forthcoming or available upon reasonable investigation); United States v. Dawson, 857 F.2d 923 (3d Cir. 1988) (no relief where defendant did not allege that witnesses were ready to volunteer their testimony or that, if called, they would have testified). The petitioner must also establish that the testimony of the witness would have been beneficial to the defense. See Lewis v. Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990) (prejudice prong of Strickland not established where petitioner did not establish that the testimony of a potential witness, whom counsel failed to interview, would have supported his claim of self-defense).
Mustafa has failed to offer any evidence sufficient to upset the factual findings of the state courts. Accepting the factual findings of the state court, this court is constrained to conclude that Mustafa cannot establish ineffective assistance of counsel for failing to call an unidentified witness because he is unable to establish that the unidentified witness was available to testify or that his/her testimony would have been helpful to the defense. Zettlemoyer, 923 F.2d at 298; Lewis, 915 F.2d at 115. Here, the state court found that the claim was too speculative to require a hearing. See Commonwealth v. Jones, 811 A.2d 994, 1003 n. 8 (Pa. 2002) (an evidentiary hearing is not meant to function as a fishing expedition for any possible evidence of ineffectiveness). The burden was on Mustafa to provide the court with specific facts in support of his claim. Thus, this court cannot conclude that the state court's rejection of this claim without an evidentiary hearing was objectively unreasonable. Werts, 228 F.3d at 203-04.
Mustafa also asserts that trial counsel was ineffective for advising him that he could not testify at trial and that direct appeal counsel was ineffective for failing to raise this claim. The PCRA court rejected this claim finding that the record established that "a full colloquy was conducted by this court on this issue and that he waived the right to testify knowingly, intelligently and voluntarily."Commonwealth v. Mustafa, CP 9308-3261 1/1 (PCRA slip op. at 5). On appeal, the Superior Court found:
In his third allegation of error, Mustafa claims that he was denied his right to testify as a result of erroneous legal advice from his trial counsel. Mustafa asserts that his trial counsel advised him that Mustafa could not present alibi testimony if he testified on his own behalf. The trial court previously had disallowed Mustafa's alibi defense because Mustafa had failed to timely file and serve notice of this defense upon the Commonwealth. Mustafa asserts that his trial counsel erroneously believed that the trial court's prior ruling precluded Mustafa, himself, from testifying that he was in New Jersey at the time of the incident. Mustafa now argues that counsel's erroneous advice interfered with his right to testify on his own behalf.
To be eligible for relief under the PCRA, Mustafa must prove that his claim has not been previously litigated or waived. Commonwealth v. Abdul-Salaam, 786 A.2d 974, 976 (2001). An allegation is deemed waived "if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review [or] on direct appeal. . . ." 42 Pa. C.S.A. § 9544(b). Under the PCRA, a petitioner can avoid a finding of waiver by making an adequate and properly layered claim of ineffective assistance of counsel at his first available opportunity to do so. Commonwealth v. Wallace, 724 A.2d 916, 921 (1999).
Here, Mustafa presents a layered claim of ineffective assistance of trial and appellate counsel. Although Mustafa develops an argument related to trial counsel's ineffectiveness, he fails to develop any argument regarding his claim that his direct appeal counsel rendered ineffective assistance. Mustafa apparently assumes that direct appeal counsel's failure to pursue his underlying claim automatically rendered appellate counsel ineffective. In Commonwealth v. Lambert, 787 A.2d 327 (2001), the Pennsylvania Supreme Court rejected such an approach to establishing appellate counsel's ineffectiveness.
In Lambert, the Pennsylvania Supreme Court held that, while a bald allegation of ineffective assistance of all prior counsel may be sufficient to overcome waiver of the issue, it does not meet the three-prong test for establishing each counsel's ineffectiveness. Id., 787 A.2d at 336-37. The Supreme Court concluded that the failure to "forward relevant argumentation" as to each element of each ineffectiveness claim "dooms [the appellant's] boilerplate claims to failure." Id. at 337.
Here, Mustafa failed to develop any argument supporting his claim that his direct appeal counsel rendered ineffective assistance. Because Mustafa failed to establish direct appeal counsel's ineffectiveness, his claim must fail. See also Commonwealth v. Williams, 782 A.2d 517, 525 ( Pa. 2001) (concluding that PCRA counsel must "undertake to develop, to the extent possible, the nature of the claims asserted with respect to each individual facet of a layered ineffectiveness claim, including that which relates to appellate counsel") (emphasis added).Commonwealth v. Mustafa, No. 3288 EDA 2000 (slip op. at 3-5).
In considering this claim, the state court concluded that it was waived for failure to properly raise the ineffectiveness of appellate counsel. A federal habeas court is precluded from reviewing an issue of federal law raised by a state prisoner if the decision of the state court denying relief rests on a state law ground that is "independent of the federal question and adequate to support the judgment," whether it is substantive or procedural. Lambrix v. Singletary, 520 U.S. 518, 522 (1997);Coleman v. Thompson, 501 U.S. 722, 729 (1991); Harris v. Reed, 489 U.S. 255 (1989). A state procedural rule is considered independent if it does not rely on the merits of a federal claim or rest its decision primarily on federal law. Harris, 489 U.S. at 260-61. The procedural disposition must comport with similar decisions in other cases so there is a firmly established rule that is applied in a consistent and regular manner in the vast majority of the cases, Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997), and existed at the time of the state procedural default. Ford v. Georgia, 498 U.S. 411, 423-24 (1991);Doctor, 96 F.3d at 684. Here, the state court's finding that the claim was waived is sufficient to bar federal review.
Although Mustafa's ineffective assistance of counsel claim is procedurally defaulted, he may obtain federal habeas review of this claim if he 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. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Bousley v. United States, 523 U.S. 614, 622 (1998); Coleman v. Thompson, 501 U.S. 722, 750 (1991). To show cause, Mustafa must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1987); Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). Once cause is shown, the petitioner bears the additional burden of proving that prejudice resulted, i.e., that the errors at trial "worked to [petitioner's] actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions." Murray, 477 U.S. at 494. Claims of ineffective assistance of counsel must be raised with specificity in the state courts and cannot otherwise constitute "cause" for the default. Id. at 489; Edwards, 529 U.S. at 541-52.
To establish the fundamental miscarriage of justice exception to the procedural default rule, Mustafa must demonstrate "actual innocence." Schlup v. Delo, 513 U.S. 298, 324 (1995); Calderon v. Thompson, 523 U.S. 538, 559 (1998) (a claim of actual innocence must be based on "reliable evidence not presented at trial" to show that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence").
Mustafa does not present any evidence to demonstrate cause for the default and actual prejudice resulting therefrom, or evidence sufficient to support a claim of actual innocence. Instead, he again asserts his claim of ineffective assistance of direct appeal counsel without any factual support and provides no explanation for his failure to develop this claim in state court. Thus, Mustafa's ineffective assistance of counsel claim is not subject to federal habeas review.
Even if Mustafa's claim were properly before this court, it would not require relief. This court need only review the affidavit of trial counsel to conclude that this claim is without merit. Although trial counsel has provided an affidavit in support of Mustafa's first claim, it is silent as to Mustafa's other claims. In the affidavit, trial counsel indicates that he reviewed the "various allegations of ineffective assistance of counsel," and believes he was ineffective for failing to impeach Caison with "his prior inconsistent statement." There is no mention of any other conduct by counsel that would support Mustafa's claim that he was erroneously advised not to testify. Counsel does not state that he believed the trial court's ruling precluded Mustafa from testifying. Mustafa fails to address this omission. Similarly, Mustafa fails to include an affidavit from direct appeal counsel to support his claim of ineffectiveness. Finally, as noted by the PCRA court, the trial court conducted a colloquy at the time of Mustafa's decision not to testify at trial and determined that the decision was made knowingly, intelligently, and voluntarily. See N.T. 12/2/93 at 66-72. In consideration of these facts, this court cannot find that the determination of the state court in denying this claim without an evidentiary hearing was objectively unreasonable. Werts, 228 F.3d at 204.
For the reasons discussed above, this court agrees with the state court that trial counsel is mistaken in this regard.
Accordingly, this court makes the following:
RECOMMENDATION
AND NOW, this day of May, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. It is also RECOMMENDED that a certificate of appealability not be granted.