Opinion
Civil Action No. 03-5017.
June 4, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is presently incarcerated at the State Correctional Institution at Frackville, Pennsylvania. For the reasons stated below, this court recommends that the petition be denied.
I. BACKGROUND
On June 30, 1998, a jury sitting in the Court of Common Pleas for Philadelphia County convicted petitioner of rape and corruption of minors (C.P. No. 97-04-0958). Petitioner represented himself during the trial after waiving his right to counsel. This trial court sentenced petitioner to ten to twenty years incarceration for the rape charge and a consecutive term of five years probation for corruption of minors.
Petitioner appealed to the Superior Court. He raised one issue,i.e., the trial court should have invalidated his waiver of counsel based on his poor performance in representing himself.Commonwealth v. Oliver, Jr., No. 2754 EDA 1999, slip op. at 2 (Pa.Super.Ct. Aug. 22, 2000). On August 22, 2000, the court affirmed his conviction. Commonwealth v. Oliver, Jr., 764 A.2d 1127 (Pa.Super. 2000). Petitioner did not seek allocatur to the Pennsylvania Supreme Court.
Petitioner filed a timely PCRA petition which was denied on December 5, 2001. Petitioner appealed to the Superior Court and raised the following issues: (1) the trial court erred in instructing the jury on the corruption of minors charge; (2) counsel on direct appeal was ineffective for not raising the issue then, which was necessary to avoid the waiver provisions of the PCRA; and (3) trial counsel was ineffective for failing to object to the instruction. See Commonwealth v. Oliver, Jr., No. 602 EDA 2002, slip op. at 2, 4-5 (Pa.Super.Ct. Dec. 18, 2002). On December 18, 2002, the Superior Court affirmed. See Commonwealth v. Oliver, Jr., 817 A.2d 1182 ( Pa. Super. 2002). On July 29, 2003, the Pennsylvania Supreme Court denied his allocatur petition. See Commonwealth v. Oliver, Jr., 829 A.2d 1157 (Pa. 2003) (Table).
The Commonwealth reports that on November 3, 2003, petitioner filed a second PCRA petition that is pending in the state court. The Commonwealth correctly asserts that the petition is now barred by the one-year statute of limitations. See 42 Pa. Cons. Stat. Ann. § 9545(b) (PCRA petition generally must "be filed within one year of the date the judgment becomes final");Whitney v. Horn, 280 F.3d 240, 251 (3d Cir. 2002) ("It is now clear that this one-year limitation is a jurisdictional rule that precludes consideration of the merits of any untimely PCRA petition, and it is strictly enforced in all cases, including death penalty appeals"), cert. denied, 537 U.S. 1195 (2003).
On September 5, 2003, petitioner filed this habeas corpus petition. He raises the following claims: (1) the trial court refused to appoint new trial counsel; (2) the trial court permitted the prosecutor to strike "all black-male jurors" and allowed the disclosure of petitioner's prior rape convictions during sentencing; (3) the trial judge allowed petitioner's privately retained counsel to withdraw without petitioner being present, and appointed counsel without petitioner's consent; and (4) the trial judge "stated false information." (petitioner does not identify the specific false information).
On May 27, 2004, the District Attorney for Philadelphia County responded to the petition and argued that the petition should be denied because all the claims are unexhausted and now procedurally defaulted.
II. DISCUSSION
As noted above, the Commonwealth argues that petitioner's claims are procedurally defaulted. Before proceeding to examine each of the claims, the court will first review the doctrine of procedural default.
It is well established that a prisoner must present all of his claims to a state's intermediate court, as well as to its supreme court, before a district court may entertain a federal petition for habeas corpus. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847 (1999); Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). "The exhaustion requirement 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."Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert. denied, 504 U.S. 944 (1992). To satisfy the exhaustion requirement, a petitioner must demonstrate that the claim raised in the federal petition was "fairly presented" to the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). See also Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004) ("To provide the State with the necessary `opportunity,' the prisoner must `fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim."). Petitioner must show that "the claim brought in federal court [is] the substantial equivalent of that presented to the state courts. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts." Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989) (citations omitted), cert. denied, 493 U.S. 1036 (1990).
On May 9, 2000, the Pennsylvania Supreme Court issued Order No. 218 that declares that federal habeas petitioners no longer have to appeal to the state supreme court to satisfy the exhaustion requirement. This order is not to be applied retroactively. See Wenger v. Frank, 266 F.3d 218, 225 (3d Cir. 2001), cert. denied, 535 U.S. 957 (2002).
However, when the petitioner cannot obtain state court review of his claims because of noncompliance with state procedural rules, the doctrine of procedural default generally bars federal habeas corpus review. Coleman v. Thompson, 501 U.S. 722, 729-32 (1991); Sistrunk v. Vaughn, 96 F.3d 666, 674-75 (3d Cir. 1996). The Supreme Court stated:
[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims.Coleman, 501 U.S. at 735 n. 1. Upon a finding of procedural default, review of a federal habeas petition is barred unless the habeas petitioner can show that "(1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered." Peterkin v. Horn, 176 F. Supp.2d 342, 353 (E.D. Pa. 2001). See also Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996) (same).
"A state [procedural] rule provides an independent and adequate basis for precluding federal review of a state prisoner's habeas claims only if: (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions." Doctor, 96 F.3d at 683-84. "A state [procedural] rule is adequate only if it is `consistently and regularly' applied." Id. at 684.
Petitioner can demonstrate cause for procedural default if he can show that some objective factor external to the defense impeded or prevented his ability to comply with the state procedural rules. Caswell, 953 F.2d at 862. To show prejudice, petitioner must present evidence that this factor did more than merely create a possibility of prejudice; it must have "worked to [petitioner's] actual and substantial disadvantage." Murray v. Carrier, 477 U.S. 478, 494 (1986) (emphasis in original) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Additionally, the fundamental miscarriage of justice exception to procedural default is only concerned with "actual" innocence and petitioner must show that it is more likely than not that no reasonable juror would have convicted him absent the claimed error. Schlup v. Delo, 513 U.S. 298, 327 (1995).
Petitioner never presented any of the four claims that he raises now to any Pennsylvania appellate court. Therefore, petitioner has not satisfied the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). Petitioner's claims are now procedurally defaulted. These claims can be raised only in a PCRA petition, which is now barred by the one-year statute of limitations. See footnote no. 1, supra. This court cannot excuse the procedural default because petitioner has shown neither cause for the default nor that the federal court's failure to consider the claim will result in a fundamental miscarriage of justice.
Accordingly, for all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 4th day of June, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DENIED, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).