Opinion
Civil Action No. 04-561.
June 24, 2004
REPORT AND RECOMMENDATION
Currently pending before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated in the State Correctional Institution at Frackville, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied.
I. PROCEDURAL HISTORY
Petitioner was arrested on February 27, 1989, in connection with his purchase of approximately one kilogram of cocaine from an undercover Pennsylvania State Trooper. On motion of the defense, the trial court held a suppression hearing regarding taped conversations involving petitioner. The motion was denied and a jury trial proceeded, presided over by the Honorable Joseph A. Smyth of the Montgomery County Court of Common Pleas. Due to the Commonwealth's failure to disclose the identity of the informant, however, the trial court declared a mistrial. Petitioner sought to re-bar prosecution on Double Jeopardy grounds, but his requested relief was denied on January 5, 1990. The Pennsylvania Superior Court considered the issue on appeal and affirmed the trial court's decision on October 17, 1990. On May 22, 1991, the Pennsylvania Supreme Court denied the request for allowance of appeal.
Subsequently, a new jury trial proceeded before the HonorableSamuel W. Salus, also of the Montgomery County Court of Common Pleas. Petitioner was convicted on August 7, 1991 and, thereafter, sentenced to a term of ten to twenty years imprisonment to be served consecutively to the sentence on his previous felony drug conviction from June of 1989 (the "June 1989 conviction"). On September 18, 1992, the Pennsylvania Superior Court affirmed the judgment of sentence. Petitioner did not seek allowance of appeal from the Pennsylvania Supreme Court.
The current conviction came on the heels of petitioner's June 15, 1989 conviction for possession and intent to deliver marijuana and cocaine, and possession of a prohibited weapon offense, for which he received a sentence of 8½ to 18 years imprisonment, running from February 27, 1989. The 1989 conviction was the subject of a previous habeas petition in this Court, at Civil Action Number 03-6381. We issued a Report and Recommendation on April 27, 2004, denying habeas relief.
On January 7, 1993, petitioner filed a petition under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. The PCRA court appointed counsel Michael J. Cassidy. As petitioner already had a PCRA petition pending on his June 1989 conviction, a joint hearing was held before Judge Salus and the Honorable Maurino J. Rossanese on both petitions. The judges concurred in denying the two PCRA petitions on February 11, 1999, and petitioner submitted a timely appeal to the Montgomery County Clerk of Courts. The Clerk failed to docket it, however, and the appeal was mistakenly dismissed as untimely. Following a further appeal, Judge Salus issued an opinion that, due to the Clerk's error, petitioner should be permitted to pursue his original appeal of the PCRA denial. Accordingly, on March 31, 2000, the Pennsylvania Superior Court granted him the right to appeal nunc pro tunc and remanded the case for appointment of counsel. Appointed counsel, James W. Flood, Esq., filed a notice of appeal nuncpro tunc on July 28, 2000, and, in connection with that notice, the PCRA court issued an opinion explaining its February 1999 denial. On May 9, 2001, the appeal was dismissed for failure to file a brief.
Petitioner filed a second PCRA petition, on July 3, 2001, raising substantially the same issues as in his previous petition, but for the addition of ineffectiveness allegations against attorneys Cassidy and Flood for failure to file an appeal from the denial of his first PCRA petition. The court dismissed the petition on the same date and petitioner sought relief from the Pennsylvania Superior Court. The Superior Court reversed the dismissal on May 1, 2002, and remanded the case for further consideration. Thomas Egan, Esq. was appointed as new PCRA counsel and a hearing was held on January 10, 2003. By agreement of the parties, petitioner was permitted to file a nunc pro tunc appeal from the denial of his original PCRA petition. No such appeal ever occurred.
Petitioner submitted this Petition for Writ of Habeas Corpus on November 25, 2003, setting forth the following claims for relief:
1. Ineffective assistance of counsel for failure to enter a defense, offer defense witnesses, investigate the circumstances surrounding petitioner's statement, seek discovery, or investigate the circumstances surrounding the search warrants;
2. Petitioner's tape recorded statement is the result of police brutality and his signatures on the Miranda warning and transcribed statement were forged; ineffective assistance of counsel for failure to investigate this violation;
3. The Commonwealth of Pennsylvania's use of illegal electronic surveillance to record petitioner's conversations with police were in violation of his rights, as follows:
a. The surreptitious recordings violated Fifth and Sixth Amendment right to counsel's presence;
b. The surreptitious recordings were conducted without authorization of a search warrant;
c. The surreptitious recordings violated the Pennsylvania Wiretap Act, as they were conducted without signed order supported by probable cause authorizing electronic surveillance;
d. The surreptitious recordings violated the Fourth Amendment, as they constituted a seizure of petitioner's statements without probable cause;
e. The Commonwealth engaged in prosecutorial misconduct in manufacturing surreptitious recorded body wire taps and transcripts;
4. The trial court imposed an illegal sentence which violated the Double Jeopardy and Ex Post Facto Clause, in that it retroactively applied a mandatory sentencing guideline to increase punishment;
5. The forfeiture action and seizure of his assets violated the following rights:
a. The forfeiture action deprived petitioner of his Sixth Amendment right to counsel of choice;
b. The forfeiture action created a corrupt conflict of interest between petitioner and criminal defense counsel of choice;
c. The forfeiture action violated petitioner's Fifth Amendment rights against double jeopardy;
d. The forfeiture action violated the Fourth Amendment rights against illegal seizure of property;
e. The forfeiture action violated petitioner's Fifth Amendment rights to due process of law in that he was denied his chance to defend with criminal defense counsel;
f. The forfeiture action violated petitioner's Eighth Amendment rights against cruel and unusual punishment;
g. The forfeiture action violated petitioner's Seventh Amendment right to a jury trial;
h. The Commonwealth still holds assets from petitioner and his daughter which were not subject to criminal forfeiture;
6. The Commonwealth withheld exculpatory evidence favorable to petitioner in violation of Brady v. Maryland.
Having considered the arguments raised by both sides, the Court now sets forth the following discussion.
II. STANDARD OF REVIEW
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for writ of habeas corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues — a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court, as follows:
An application for a writ of habeas corpus on behalf of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless that 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 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).
The United States Supreme Court, in the case of Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), interpreted the standards established by the AEDPA regarding the deference to be accorded to state court legal decisions, and more clearly defined the two-part analysis set forth in the statute. Williams, 529 U.S. at 404-405. Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to" the "clearly established federal law, determined by the Supreme Court of the United States." A state court decision can be contrary to Supreme Court precedent in two ways: 1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or 2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. The Court explained, however, that this "contrary to" clause does not encompass the "run-of-the-mill state-court decisions" applying the correct legal rule from Supreme Court cases to the facts of the prisoner's case." Id. at 406.
To reach such "run-of-the-mill" cases, the Court turned to an interpretation of the "unreasonable application" clause of § 2254(d)(1). It found that a state court decision can involve an unreasonable application of Supreme Court precedent: 1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or 2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context should apply."Williams, 529 U.S. at 407-408. Under this clause, however, "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 410.
III. DISCUSSION
A. Ineffective Assistance of Counsel For Failure to Present an Aggressive Defense
Petitioner's initial claim asserts a general allegation of ineffective assistance of counsel. The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. CONST., amend. VI. In the case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562 (1984), the Supreme Court set forth a two-prong test — both parts of which must be satisfied — by which claims alleging counsel's ineffectiveness are adjudged. Id. at 687. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. at 688. The Supreme Court has explained that:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption 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."Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 163-164 (1955)). A convicted defendant asserting ineffective assistance must, therefore, identify the acts or omissions that are alleged not to have been the result of reasoned professional judgment. Id. at 690. The reviewing court must then determine whether, in light of all circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance." Id. It is well-established that appellate counsel cannot be ineffective for failing to raise a meritless claim. See Strickland, 466 U.S. at 691; Holland v. Horn, 150 F. Supp.2d 706, 731 (E.D. Pa. 2001).
Pursuant to the second prong, the defendant must establish that the deficient performance prejudiced the defense. It requires a demonstration that counsel's errors were so serious as to deprive the defendant of a fair trial or a trial whose result is reliable. Strickland, 466 U.S. at 687. More specifically, the defendant "must show that there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Petitioner now argues that his trial counsel was ineffective for generally failing to undertake any investigation, evaluation of the evidence or analysis of the factual and legal elements of the case to properly formulate a defense. He goes on to specifically contend that counsel neglected to present any defense evidence or witnesses on his behalf, seek discovery, or investigate the circumstances surrounding various search warrants. Considering each of these allegations in turn, this Court disagrees.
Petitioner also alleges ineffective assistance of counsel for failure to investigate the circumstances surrounding his statem ent to police. As we address the underlying claim of the voluntariness of his statement later in this decision, we defer addressing the correlating ineffectiveness allegation until that time.
Respondent urges this Court to find that this claim was never presented to the state courts. The tortured procedural history of this matter, however, makes such a determination somew hat difficult. Petitioner originally sought PCRA relief in 1993, but action on the petition was postponed for an extended period of time due to the forfeiture actions. Thereafter, in his pro se Supplemental Motion for Post-Conviction Relief, dated September 24, 1998, petitioner seems to have raised this issue. During the PCR A hearing, though, the court opted to dismiss this filing and let appointed counsel re-define the issues for consideration. (N.T. 1/7/99, at 5). Counsel did not re-raise this issue at the hearing, but petitioner nonetheless included it in his brief to the Pennsylvania Superior Court. Thereafter, petitioner included the issue in his second PCRA petition dated July 5, 2001, the merits of which were never reached. While the state courts may, therefore, not have addressed this issue, it appears that they were given a "fair opportunity" to do so, which would be sufficient to exhaust his claims. O'Sullivan v. Boerckel, 526 U.S. 838, 844, 19 S.Ct. 1728, 1731 (1999). In any event, we find that comprehensiveness demands that we reach the merits of the claim.
1. Failure to Call Defense Witnesses or Present Evidence
Petitioner first takes issue with his counsel's failure to enter any defense or call any defense witnesses on his behalf. Such an argument, however, does not easily rise to the level of ineffective assistance. With the exception of certain fundamental decisions, such as entry of a plea or waiver of a jury trial, "an attorney's duty is to take professional responsibility for the conduct of the case, after consulting with his client." Jones v. Barnes, 463 U.S. 745, 753 n. 6, 103 S.Ct. 3308, 3313 n. 6 (1983). Therefore, if a decision falls within the realm of "strategic decisions" to be made by the attorney, a reviewing court may find whatever decisions that attorney made "to be sufficiently deficient only if he either failed completely to consult with his client, or if the decision was itself inept or incapable of interpretation as sound."United States v. Narducci, 18 F. Supp.2d 481, 493 (E.D. Pa. 1997), reconsideration denied, Civ. A. No. 97-2812, 1998 WL 122237 (E.D. Pa. Mar. 9, 1998) (emphasis in original).
Decision on which witnesses to call are generally strategic decisions entrusted to counsel and are protected from second-guessing. United States v. Merlino, 2 F. Supp.2d 647, 662 (E.D. Pa. 1997); United States v. Griffin, Crim. A. No. 91-612, 1993 WL 34927, *5 (E.D. Pa.), aff'd, 16 F.3d 406 (3d Cir. 1993). Counsel need not call every suggested witness — only those likely to assist their case. Merlino, 2 F. Supp.2d at 662. To prove that counsel was ineffective for failing to call a particular witness, petitioner must show that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the witness was so prejudicial as to have denied petitioner a fair trial. Blasi v. Attorney General of the Commonwealth of Pennsylvania, 120 F. Supp.2d 451, 474 (M.D. Pa. 2000), aff'd, 275 F.3d 33 (3d Cir. 2001), cert. denied, 535 U.S. 987, 122 S.Ct. 1540 (2002) (citingCommonwealth v. Holloway, 739 A.2d 1039, 1048 (Pa. 1999)). "[D]efense counsel has no obligation to call a witness whose testimony would not have exculpated the petitioner or would have been inconsistent with the theory of defense." Marra v. Larkins, 111 F. Supp.2d 575, 585 n. 13 (E.D. Pa. 2000), aff'd,
46 Fed. Appx. 83, 2002 WL 1980413 (3d Cir. 2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 903 (2003) (citations omitted).
In his habeas petition, memorandum in support and Traverse, petitioner fails to specify precisely what strategy counsel should have pursued at trial. Rather, he seems to contest the mere fact that counsel did not put on any type of defense case. Such an allegation, without more, is insufficient to prove that counsel's actions fell below an objective standard of reasonableness. Even when raising this issue in state court filings, petitioner failed to indicate what witnesses should have been called or what evidence should have been entered on his behalf. Indeed, upon review of the record, we note that counsel did, in fact, present one witness on behalf of petitioner and argued an entrapment defense. Contrary to petitioner's suggestion, "[a] federal habeas corpus petitioner has the burden of proving all facts entitling him to a discharge from custody."Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). As petitioner has failed to meet this burden, we decline to find that counsel's conduct fell below an objective standard of reasonableness.
In his state Supplemental Petition for Post Conviction Collateral Relief, filed September 24, 1998, petitioner argues that counsel failed to call two defense witnesses to impeach Commonw ealth witnesses Bechtel and DeAngelo. He identifies these witnesses, however, only by initials ("D.C. and A.L.") and fails to set forth the substance of their potential testimony or even how they would have impeached the Commonw ealth witnesses. Such a bare bones allegation is insufficient to support a grant of habeas relief.
Additionally, in his Traverse, petitioner alleges that counsel failed to call Gary Buckwalter to corroborate his claim that his statement was coerced. For ease of discussion, however, the Court addresses this assertion when dealing with his claim of ineffective assistance of counsel for failure to investigate the circumstances surrounding his statement.
2. Failure to Seek Discovery
In the second prong of his ineffectiveness allegation, petitioner contends that counsel generally failed to seek discovery prior to trial. The Court again finds no merit to this claim.
Undisputedly, the Commonwealth provided counsel with some discovery. In his habeas petition, however, petitioner references his expansive Motion to Compel Discovery Pursuant to Pa. R. Crim. P. 305, which lists a series of information either not provided by the Commonwealth or not sought by counsel. Moreover, he incorporates his Supplemental Motion for Post-Conviction Collateral Relief, filed September 24, 1998, wherein he argues that counsel failed to file for mandatory discovery of confidential informants'/secret police agents' (William Bechtel, Barbara Bechtel, Russel Kent and Jeffrey Moser)Brady material, the criminal records of these informants, the Commonwealth's deals with William Bechtel and Russel Kent to offer information, copies of the informants' statements and all police reports and notes. Further, he claims that counsel failed to seek mandatory disclosure of tapes of Jeffrey Moser's calls to his home to extort money and tools, Russel Kent's calls to his residence to sell marijuana and money to obtain cocaine and William Bechtel's calls to extort money and threatening petitioner with murder to scare him into purchasing drugs.
Petitioner's argument fails, however on multiple grounds. First, much of the information listed in his "Motion to Compel" was either already provided to him during discovery, was easily accessible public information or was simply not discoverable material. As such, counsel could not have been ineffective for not pursuing such items.
Moreover, with respect to the information listed in his Supplemental Motion for Post-Conviction Relief, petitioner concedes, in that very same motion, that "[f]ormer counsel, Mr. Hylan, Esquire filed for discovery of above mentioned tapes . . . on May 17, 1989, transcripts and recordings of any electronic surveillance and the authority by which the said transcripts and recordings were obtained, also all written or recorded statements. The prosecution withheld this exculpatory evidence."See Petition for Writ of Habeas Corpus, Exh. #4, at 8. Thus, by petitioner's own admission, counsel's conduct could not have fallen below an objective standard of reasonableness.
Finally, and perhaps most importantly, petitioner omits any discussion of how counsel's failure to obtain such discovery prejudiced his trial. He does not deny that he participated in the illegal purchase of cocaine. Rather, in his state court filings, he attempts to argue that such discovery would have proven that the police entrapped him into committing the crime by exploiting his friendships with informants and his drug addiction. See Petition for Writ of Habeas Corpus, Exh. #4, at p. 14-19. Upon review of petitioner's proffer of evidence, however, this Court finds nothing that would serve to exculpate him or even assist in the defense as planned by counsel. The fact remains that petitioner was caught engaging in the recorded drug transaction. Without at least some showing that the absence of these materials affected the reliability of the outcome of his trial, the Court cannot grant relief on this claim.
Specifically, petitioner argued that the methods of persuasion which ultimately induced defendant to purchase the large quantity of cocaine included the follow ing: "(i) [Bechtel's] continuous suggestions of pure cocaine for personal use at cheap prices "for a friend"; (ii) [Bechtel] exploited defendant's drug addiction; (iii) [Bechtel] and his family knew defendant was not a drug dealer; (iv) [Bechtel] begged defendant to obtain him a good lawyer to fight alleged rape charges; (v) [Bechtel] wanted defendant to have Mr. Elliot D. Goldberg, Esq. to defend his rape charges (defendant's counsel); (vi) [Bechtel]'s mother Barbara Bechtel met my lawyer Mr. Goldberg at Preliminary Hearing on 1-21-89 (interview) to consult with Mr. Goldberg, Esq. to defend her son William Bechtel . . . on rape charges; (vii) [Bechtel] secretly interrogated defendant about 1st case 526-1989 and reported regularly to police defense plans . . .; (viii) [Bechtel] gave prison commissary to defendant, his friend; (ix) [Bechtel] urged defendant to purchase cocaine from his Puerto Rican connection for personal use, 1/8 ounce, starting (1) one week after arrest, [Bechtel] would have it smuggled into county prison . . .; (x) [Bechtel] bragged about being main delivery man for Puerto Rican drug dealer and how he used fast motorcycle to deliver drugs and evade police, so not to get caught; (xi) [Bechtel] called my home to get $100 from me if I purchased drugs for personal use from his connections . . . (xii) [Bechtel] called my home threatened me to have me busted if he did not get his $100 . . . (C.I. William Bechtel stated all of his calls taped by police); (xiii) [Bechtel] called my home and made threats of murder if anybody got in trouble and so forth . . . (xvi) [Bechtel] professed to be in need of my help and being my friend; (xvii) Jeffrey Moser was instructed by police to contact me to hire him to kill defense witnesses. Moser described 9mm silenced pistol, lye and lime to dispose of bodies, wanted $10,000. I told Moser to get lost. At S.C.I. Graterford, Moser stated to me, prosecution team got him released from prison and a job for trying to set me up and get busted. Prosecution withheld this information . . . (xviii) Russel Kent, William Bechtel's Stepfather (police agent) while, I was on bail, came to my home (3) times to attempt to sell me (10) pound marijuana. I refused to buy; (xx) these visits and calls tomy home from Russel Kent were witnessed by Sharon Stratton, Stacy Gross, Gary Buckw alter, Mr. Lovorak, Mr. Hartzle. Former counsel never spoke to these witnesses; (xix) Russel Kent asked defendant "Do you have (2) grand I can borrow," I asked why. Russel Kent stated me he would do [work on my home for free and buy my motor home at a higher price] if I would loan him (2) grand to buy a kilo of cocain from Bill Bechtel's Puerto Rican drug dealer, to get money to get W. Bechtel a lawyer, by dealing cocaine. It was his idea to buy a kilo of cocain, not my idea. . . . Russel Kent asked me to pick up (1) kilo of cocaine from Puerto Rican on 2-27-89. Reason he had to go to hospital for emergency surgery. Result, I got busted." Petition for Writ of Habeas Corpus, Exhibit #4, at 15-16.
3. Failure to Investigate Circumstances of Search Warrants
Finally, petitioner contends that his counsel was ineffective for failing to investigate the circumstances surrounding the issuance of two search warrants. Although petitioner provides no more detail on this claim, the Court presumes he is referring to two search warrants, issued on January 11, 1989 and January 14, 1989, in connection with his June 15, 1989 conviction. These warrants, however, resulted in the discovery of evidence used solely for that 1989 conviction. None of the evidence was offered in the trial at issue, as the challenged conviction was based solely on the petitioner's purchase of narcotics from an undercover officer. Consequently, counsel, who already challenged the search warrants in the previous case, would have had absolutely no basis for raising an equivalent challenge in this matter. As counsel cannot be ineffective for failing to pursue meritless claims, we deny habeas relief on this ground.Strickland, 466 U.S. at 691 (holding that failure of counsel to pursue fruitless claims "may not later be challenged as unreasonable"); see also Holland, 150 F. Supp.2d at 731 (holding that counsel cannot be ineffective for failing to raise a meritless claim).
B. Voluntariness of Plaintiff's Statement to Police
1. Whether Petitioner's Statement Was Properly Admitted
In his next effort to obtain habeas relief, petitioner alleges that his statement to police was coerced and incorrect, thereby making its admission improper. By way of argument, he contends that the District Attorney and the police denied his right to counsel, used threats, coercion and police brutality and ultimately forged the signatures on his Miranda waiver and his statement.
The voluntariness of a confession is a mixed question of fact and law that is subject to independent consideration in federal habeas proceedings. Miller v. Fenton, 474 U.S. 104, 112, 106 So. Ct. 445, 450-451 (1985); United States v. Cruz, 910 F.2d 1072, 1078 (3d Cir. 1990), cert. denied, 498 U.S. 1039, 111 S.Ct. 709 (1991). Determinations of factual issues by state courts, however, such as whether police used intimidation tactics, are given a presumption of correctness, which may only be rebutted by clear and convincing evidence to the contrary. See Miller, 474 U.S. at 112 (a state court's findings on subsidiary questions in determining voluntariness of a confession are conclusive on the habeas court); Alston v. Redman, 34 F.3d 1237, 1253 (3d Cir. 1994), cert. denied, 513 U.S. 1160, 109 S.Ct. 2455 (1995) (same); see also 28 U.S.C. § 2254(e)(1).
In determining whether a confession was voluntary, the relevant inquiry is whether the confession was "`the product of an essentially free and unconstrained choice by its maker,' that it was `the product of a rational intellect and a free will' and that the appellant's will was not `overborne.'" United States v. Swint, 15 F.3d 286, 289 (3d Cir. 1994) (quotations omitted). Supreme Court precedent requires consideration of "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation." Dickerson v. United States 530 U.S. 428, 434, 120 S.Ct. 2326, 2331 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 So. Ct. 2041 (1973)). Consideration must be given to such factors as: the length, location and continuity of the interrogation, the suspect's maturity, education, physical and mental health, and the failure, if any, of the police to advise the suspect of his rights. Swint, 15 F.3d at 289 (citing cases). Unless there is "police conduct causally related to the confession," the confession is considered voluntary. Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515 (1986). Notably, while the prosecution has the burden of proving voluntariness during a suppression hearing, the burden shifts to petitioner to prove involuntariness on federal habeas corpus review. Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.), cert. denied, 479 U.S. 989, 107 S.Ct. 585 (1986).
During pre-trial litigation in petitioner's June 15, 1989 conviction, the trial court held a full suppression hearing and took extensive testimony from Lieutenant Timothy Woodward of the Montgomery County Detective Bureau in connection with petitioner's claim that both his Miranda waiver and his confession was coerced. Following petitioner's post-sentence challenge to the admission of this statement at trial, the court noted that petitioner was orally advised on at least three occasions and given a written admonishment of his Miranda rights. Thereafter, he certified, in writing, that he understood his rights and was nonetheless willing to provide a voluntary statement. Moreover, the court found nothing in the record to suggest that plaintiff was the subject of duress or overbearing. Finally, it remarked that petitioner's brief submitted in support of his post-verdict motions was silent with regard to the admissibility of his statement, thereby tacitly admitting the validity of the statement. Ultimately, it concluded that petitioner's Miranda waiver and subsequent confession were knowing, voluntary and intelligent. On appeal, the Superior Court affirmed the decision. The statement was thus admitted in both petitioner's June 1989 and August 1991 trials.
We do not find the state courts' ruling to be either contrary to or an unreasonable application of federal law. Petitioner has failed to put forth any evidence, let alone clear and convincing evidence, to undermine these findings. Giving deference to the state court's factual determinations, made after a full hearing, we reach the same legal conclusion. See 28 U.S.C. § 2254(e)(1) ("a determination of a factual issue made by a State court shall be presumed to be correct," unless petitioner rebuts the presumption of correctness by clear and convincing evidence). At the time of the confession, petitioner was a forty-six year old, divorced, white male with a criminal history involving prior jail sentences. As such, he was not subject to the same type of personal vulnerabilities as a younger person. See Miller, 796 F.2d at 606 (mature adult with some high school education more resistant to interrogation than a young, uneducated or weak-minded person). He was orally advised of his rights on at least three occasions before being given a written waiver form. His confession was consistent with items seized from searches of his home in early 1989 and with a taped drug transaction. No evidence, other than petitioner's blanket statement, existed of police brutality. No proof was given that petitioner's written waiver of his Miranda rights was forged. And no showing was made that the Miranda waiver and subsequent confession were anything other than voluntary. Absent at least some demonstration that the state court's factual determinations were incorrect, we decline to reverse this decision.
2. Whether Trial and Direct Appeal Counsel Were Ineffective for Failing to Investigate the Circumstances Surrounding His Statement
In connection with his Fourth, Fifth and Fourteenth Amendment challenges to his statement, petitioner also makes a Sixth Amendment ineffective assistance of counsel argument. Specifically, he alleges that counsel refused to investigate the circumstances surrounding both his Miranda waiver and his confession and actually agreed with the prosecution to use a redacted version of petitioner's unsigned statement.
Respondent again argues that the claim is waived and could not be raised to the state courts at this juncture. While we recognize that this claim has, in fact, never been considered by the state courts, we again note that in his original pro se PCRA petition, petitioner alleged that counsel failed to file a motion to suppress his statement. At the PCR A hearing, however, one of the sitting judges granted a motion to dismiss all of petitioner's pro se filings and limited the claims to the ones raised by his appointed attorney. (N.T. 1/7/99, at 5). In light of this Court's inability to discern the precise procedural status of this claim, and in an abundance of fairness, we address the merits of the claim.
We find no basis for habeas relief. Counsel challenged both theMiranda rights waiver and the voluntariness of petitioner's confession during a pre-trial suppression hearing, during post-sentence motions and on direct appeal regarding his June 1989 conviction. On all three occasions, the court found no merit to these challenges. The very same statement, involving the precise same circumstances, was subsequently admitted during his August 1991 trial. It would be unreasonable to suggest that, having fully litigated and lost this claim in 1989, counsel should have re-raised the identical arguments in connection with the 1991 conviction and requested a new hearing.
In his Traverse, petitioner argues, for the first time, that trial counsel erred in not eliciting testimony from prosecution witness Gary Buckwalter to impeachthe testimony of Detective Woodward regarding the circumstances regarding his confession. He contends that Mr. Buckwalter was present at the time of petitioner's arrest and at the time petitioner invoked his Fifth Amendment right to silence and his Sixth Amendment. Mr. Buckwalter would also allegedly testify that he was present at the Upper Merion Police Station when petitioner was threatened and knocked down unconscious by police.
Two fundamental problems arise from this belated allegation. First, throughout all of his state court filings, his state court evidentiary hearings, his habeas corpus petition in this case and his habeas petition for his June 1989 conviction, petitioner never once mentioned that Mr. Buckwalter had knowledge of these circumstances. See Memorandum in Support of Petition for Writ of Habeas Corpus, at p. 2-B; Supplemental Motion for Post Conviction Relief, September 24, 1998, pp. 10-11 (attached as #4 to Petition for Writ of Habeas Corpus); Response, Exhibit F, at pp. 14-15; Response, Exhibit G, at pp. 18-20; Response, Exhibit P. As such, no state court had the opportunity to develop an evidentiary record of Mr. Buckwalter's testimony on this matter. Where a petitioner has failed to develop the factual basis of the claim in state court, this court shall not conduct an evidentiary hearing unless the (a) claim relies on a new rule of constitutional law or a factual predicate that could not have been previously discovered through the exercise of due diligence; and (b) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2); See also Bowen v. Blaine, 243 F. Supp.2d 296 (E.D. Pa. 2003) (petitioner who failed to develop claim of counsel ineffectiveness for failure to call certain witnesses must meet heightened standard to obtain an evidentiary hearing). As neither of these requirements have been met, this Court is now precluded from conducting an evidentiary hearing to discover the true substance of Mr. Buckwalter's knowledge. Accordingly, we have no basis on which to disagree with the state courts' findings of fact.
Second, just as petitioner did not inform the state courts of this claim, petitioner does not suggest that he ever informed his trial counsel of this Mr. Buckwalter's potential testimony. Absent a showing that counsel should have known of this witness's knowledge, counsel cannot be ineffective for failing to call him.Blasi, 120 F. Supp.2d at 474; see also Zettlemoyer v. Fulcomer, 923 F.2d 294, 298 (3d Cir.), cert denied, 502 U.S. 902, 112 S.Ct. 280, reh'g denied, 502 U.S. 1000, 112 S.Ct. 624 (1991) (petitioner must allege that testimony was "forthcoming or available on reasonable investigation"). Accordingly, we deny this argument.
C. Claims Regarding Electronic Surveillance
Petitioner's next set of claims focuses on electronic interceptions of conversations between petitioner and an undercover officer prior to and during the drug transaction which is the subject of his current conviction. Petitioner moved to suppress the recordings and, after a hearing on August 14, 1989, Judge Smyth allowed their admission. By way of this habeas petition, petitioner now asserts that such admission violated his Fifth and Sixth Amendment right to counsel, contravened the Fourth Amendment prohibition against illegal search and seizure without a warrant, violated the Pennsylvania Wiretap Act and give rise to prosecutorial misconduct. We take each claim individually.
1. Violation of the Fifth And Sixth Amendment
Petitioner first asserts that the surreptitious recording of his conversations with the undercover officer violated his Fifth and Sixth Amendment right to counsel. Having considered the pertinent jurisprudence, the Court finds no merit to these claims.
The right to counsel has two sources in the United States Constitution — the Fifth and Sixth Amendments. "The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations."Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407 (1986). Where a person is in custody, he must be advised of his right to counsel. Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 1616 (1976). Notably, an individual is not entitled to the protection merely because he is the subject of an investigation; rather there must be custodial interrogation.See generally Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, reh'g denied, 385 U.S. 890, 87 S.Ct. 11 (1966). As stated by the Third Circuit, "Miranda warnings are required only when a person has been deprived of his freedom of action in some significant way." United States v. Semkiw, 712 F.2d 891, 893 (3d Cir. 1983).
The Sixth Amendment, on the other hand, establishes a criminal defendant's right to the assistance of counsel, which arises at the initiation of adversarial judicial proceedings against the defendant. United States v. Gouveia, 467 U.S. 180, 187-188, 104 S.Ct. 2292, 2297 (1984). Judicial proceedings against an accused include the "formal charge, preliminary hearing, indictment, information, or arraignment." Id. 467 U.S. at 188-89. It is not until such proceedings commence, however, that the Sixth Amendment may be invoked. Importantly, the Sixth Amendment is "offense specific," meaning that it cannot be invoked once for all future prosecutions, nor does it attach until a prosecution is commenced. Texas v. Cobb, 532 U.S. 162, 167-168, 121 S.Ct. 1335, 1340 (2001) (citing McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204 (1991)).
In the case at bar, the challenged surreptitious recordings occurred prior to any arrest of, interrogation of, or adversarial judicial proceedings against petitioner. Based on information from a confidential informant, police instructed the informant to contact petitioner and set up a drug transaction with "Jose", who was, in reality, an undercover police officer. After several telephone conversations, "Jose" met with petitioner and sold him one kilogram of cocaine, at which time the transaction was electronically recorded. Subsequent to that transaction, police arrested petitioner and charged him with the varying drug offenses. At no time during or prior to the surreptitious recordings was petitioner in custody, let alone the subject of custodial interrogation. While he did face adversarial judicial action in connection with prior drug activity, the Sixth Amendment, being offense-specific, did not automatically attach to the prosecution involving this later activity until petitioner was formally charged — an event which occurred after the electronic recording.
In short, the Court finds no violation of petitioner's Fifth or Sixth Amendment right to counsel resulting from the electronic recording of his conversations with the undercover officer. We thus deny habeas relief.
The cases cited by petitioner in support of this claim are inapposite. In both Massiah v. United States, 377 us 201, 84 So. Ct. 1199 (1964) and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183 (1980), the surreptitious interrogations were made following the defendants' indictments, thereby invoking the protections of the Sixth Amendment. In the case at bar, by contrast, no adversarial proceedings in connection with activity at issue had yet been started against petitioner when the surreptitious recordings were made.
2. Violation of Fourth Amendment Rights by Seizure Without a Search Warrant or Probable Cause
Petitioner next alleges that the surreptitious recording of his conversations violated the Fourth Amendment in that it was done without a search warrant and without probable cause. We again disagree.
It is well-established that where one party to the conversation consents to the electronic monitoring, the conversation is admissible. United States v. Mitlo, 714 F.2d 294, 296 (3d Cir. 1983), cert. denied, 464 U.S. 1018, 104 S.Ct. 550 (1983). Therefore, the use of undercover agents and informers to elicit incriminating statements from potential criminal defendants does not constitute unreasonable search and seizure prohibited by the Fourth Amendment. United States v. White, 401 U.S. 745, 750-751, 91 S.Ct. 1122, 1125-1126, reh'g denied, 402 U.S. 990, 91 S.Ct. 1643 (1971); Hoffa v. United States, 385 U.S. 293, 302-303, 87 S.Ct. 408, 413-414 (1966), reh'g denied, 386 U.S. 940, 87 S.Ct. 970 (1967). As the Supreme Court has explained, the Fourth Amendment does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa, 385 U.S. at 302. Likewise, the surreptitious concealment by an undercover agent of a transmitting and/or recording device to obtain conversations with the object of a criminal investigation does not convert the use of such conversations into a Fourth Amendment violation.White, 401 U.S. at 751-753; Lopez v. United States, 373 U.S. 427, 438-439, 83 S.Ct. 1381, 1387-1388 (1963). In other words, "if a person consents to the presence at a meeting of another person who is willing to reveal what occurred, the Fourth Amendment permits the government to obtain and use the best available proof of what the latter person could have testified about." U.S. v. Lee, 359 F.3d 194, 200 (3d Cir. 2004).
Petitioner, in the case before us, voluntarily agreed to meet and transact with the undercover officer. The undercover officer, in turn, expressly consented to the recording of the conversations between he and petitioner. Consequently, we find no Fourth Amendment violation has occurred and decline to grant habeas relief on this claim.
In any event, the content of the electronic surveillance tapes were the subject of a full suppression hearing prior to trial. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), the Supreme Court held that, "where the State has provided an opportunity for a full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."Id. at 494 (footnotes omitted). "Even otherwise potentially meritorious Fourth Am endment claims are barred on habeas [review] when the petitioner had a full and fair opportunity to litigate them." Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994);see also U.S. ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978) ("Stone v. Powell . . . is an insurmountable obstacle to habeas corpus relief.").
In his Traverse, petitioner argues for the first time that counsel was ineffective for failing to raise this Fourth Amendment issue. Aside from the fact that he has waived this claim by not presenting it in his original petition, we deem it to be without merit. As noted above, the underlying Fourth Amendment issue has no merit. Under controlling jurisprudence, counsel may not be ineffective for failing to litigate a baseless allegation. Strickland, 466 U.S. at 691.
3. Violation of Pennsylvania Wiretap Act
Petitioner's third challenge to the admission of the electronically recorded conversations asserts a violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5704. To prevail in his federal habeas corpus petition, however, a petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States," as opposed to a violation of state laws. 28 U.S.C. § 2254(a). Under § 2254, "a federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 875 (1984); see also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct 475, 480 (1991). Because this claim is based on purely state law, it is simply not cognizable in this Court.
Notably, under 18 Pa.C.S.A. § 5704, "[i]t shall not be unlawful and no prior court approval shall be required under this chapter for: . . . (2) [a]ny investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities . . . where: . . . (ii) one of the parties to the communication has given prior consent to such interception . . . [and] the district attorney . . . of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception . . ." In this case, approval was given by the District Attorney and the undercover officer consented to the interception.
The respondent argues that this claim, like several others, was waived by petitioner's failure to present it in state court. To avoid interpreting the procedural morass in this case, however, the Court again elects to reach the merits of the issue.
In his final attempt to undermine the validity of his conviction based on the admission of the electronically recorded conversations, petitioner argues that the Commonwealth "engaged in prosecutorial misconduct in manufacturing surreptitiously recorded body wire tapes and transcripts used to guarantee petitioner's jury trial conviction of August 9, 1991." See Memorandum in Support of Petition for Writ of Habeas Corpus at 5B. Even under the most liberal interpretation of this allegation, the Court finds no grounds for relief.
Pursuant to well-established jurisprudence, a petitioner seeking the writ of habeas corpus based on allegations of prosecutorial misconduct will not succeed merely because the prosecutors' actions "were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, reh'g denied, 478 U.S. 1036, 107 S.Ct. 24 (1986) (quotations omitted). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947 (1982). Thus, to state a claim for habeas relief, a petitioner must show that the prosecutor's actions were so egregious that they fatally infected the proceedings, rendered the entire trial fundamentally unfair, and made the conviction a denial of due process. See Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871 (1974);Lesko v. Lehman, 925 F.2d 1527, 1546 (3d Cir.), cert. denied, 502 U.S. 898, 112 S.Ct. 273 (1991). Where a prosecutor commits misconduct, the inquiry then becomes whether, in light of the record as a whole, the prosecutor's conduct "had substantial and injurious effect or influence in determining the jury's verdict."Brecht v. Abramson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993), reh'g denied, 508 U.S. 968, 113 S.Ct. 2951 (1993) (internal quotations omitted).
Petitioner, in this matter, makes no showing that the prosecutor engaged in any type of misconduct. He presents nothing, other than his blanket statement, to establish that the electronic tapes were anything other than accurate and genuine. Absent at least some modicum of proof that the prosecutor engaged in some egregious or improper behavior, we have no basis on which to grant this claim.
Notably, petitioner's trial counsel testified during the 1999 PCRA hearing that petitioner never suggested to him that the tapes were manufactured in any way. (N.T. 1/7/99, p. 73).
Petitioner complains, in his Traverse, that he has been precluded from developing this claim by the failure of Commonwealth to produce copies of consent forms signed by the police agents involved in the surreptitious recording. See Traverse at 11. Even if such information were produced, however, the Court fails to understand how such forms would establish that the prosecutor manufactured the recorded statements.
D. Legality of Sentence Under Ex Post Facto and Double Jeopardy Clauses
Petitioner seeks habeas relief on the additional grounds that his sentence is illegal. Specifically, he claims that the sentence imposed on December 12, 1991 violates both the Double Jeopardy Clause and the Ex Post Facto Clause by the improper retroactive use of a mandatory sentencing guideline to increase punishment. Although neither claim is well-explained, the Court has gleaned what it believes to be the essence of each argument from exchanges during petitioner's two PCRA hearings and Traverse. Relying on these interpretations, we now address each claim separately.
In his Traverse, petitioner raises, for the first time, an Eighth Amendment challenge to his sentence. As this claim was never raised in his habeas petition, is untimely at this juncture, and remains unexplained in his latest brief, we decline to consider it.
1. Double Jeopardy Clause
Turning first to petitioner's double jeopardy claim, petitioner appears to argue that, when sentencing him on his February 1991 conviction, the trial judge considered the events giving rise to the June 1989 conviction and, thus, enhanced the sentence. He claims that this was improper because at the time of his arrest, in connection with the February 1991 conviction, he had not yet been convicted of any other crime. As such, to consider the June 1989 conviction when sentencing him on his February 1991 conviction constituted a violation of the Double Jeopardy Clause.
The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST., amend. V. The Clause "protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense."United States v. Baird, 63 F.3d 1213, 1215 (3d Cir. 1995),cert. denied, 516 U.S. 1111, 116 S.Ct. 909, reh'g denied, 517 U.S. 1128, 116 S.Ct. 1371 (1996). The prohibition against multiple punishments for the same offense has "deep roots in our history and our jurisprudence." Baird, 63 F.3d at 1216 (quotingUnited States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897 (1989)). Notably, "there is no double jeopardy bar to the use of prior convictions in sentencing a persistent offender." Caspari v. Bohlen, 510 U.S. 383, 391, 114 S.Ct. 948, 954 (1994); see also United States v. Garcia, 919 F.2d 881, 886 (3d Cir. 1990) ("[t]he consideration at sentencing of prior convictions has long been held not to violate double jeopardy.").
In light of this well-established law, the Court finds no Double Jeopardy violation by virtue of the trial court's consideration of petitioner's June 1989 conviction. The mere fact that at the time of his arrest for the current conviction, in February of 1989, he had not yet received the June 1989 conviction is of no moment. He was ultimately convicted of that crime, making the trial court's consideration of it in 1991 well within the bounds of the Double Jeopardy Clause.
To the extent petitioner contends that the judge violated sentencing laws, this claim is a matter of state law and is, thus, not cognizable in this Court. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991). In any event, petitioner also had a prior drug conviction from the state courts in Texas, which could serve as a basis for enhancement of his sentence.
To the extent petitioner argues that the current prosecution was barred because the sentencing judge in his 1989 conviction enhanced his sentence due to petitioner's conduct giving rise to the 1991 conviction, we likewise find no merit. The sentencing judge, in 1989, did indeed take into consideration the fact that, while petitioner was out on bail pending trial, he was arrested for further drug activity. Thereafter, petitioner was prosecuted on that latter drug activity. Such seemingly "double punishment," however, has been deemed by the Supreme Court to not violate the Double Jeopardy Clause. The court has clearly rejected the notion that "double jeopardy principles bar a later prosecution or punishment for criminal activity where that activity has been considered at sentencing for a separate crime." Witte v. United States, 515 U.S. 389, 398, 115 S.Ct. 2199, 2205 (1995) (citingWilliams v. Oklahoma, 385 U.S. 576, 79 S.Ct. 421 (1959). "[U]se of evidence of related criminal conduct to enhance a defendant's sentence for a separate crime within the authorized statutory limits does not constitute punishment for that conduct within the meaning of the Double Jeopardy Clause." Witte, 515 U.S. at 399. Accordingly, we dismiss this claim.
2. Ex Post Facto Clause
Petitioner's second challenge to his sentence invokes the Ex Post Facto Clause. He argues, in particular, that the sentencing judge retroactively applied mandatory sentencing guidelines for drug offenses, which were enacted subsequent to his arrest, but prior to his conviction in 1991.
The Ex Post Facto Clause of the United States Constitution focuses on a statutory or policy changes that "retroactively alter the definition of crime or increase[s] the punishment for criminal acts" California Dep't. of Corrections v. Morales, 514 U.S. 499, 505, 115 S.Ct. 1597, 1601 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719 (1990)). In order for a new law to violate the Ex Post Facto clause, a petitioner must prove two elements. First, it must be retrospective, in that it "appl[ies] to events occurring before its enactment." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964 (1981); see also Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir. 2001). Second, the new law must "disadvantage the offender affected by it." Weaver, 450 U.S. at 29; Coady, 251 F.3d at 488. Therefore, if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it does not offend the ex post facto prohibition. See Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, reh'g denied, 434 U.S. 882, 98 S.Ct. 246, 2298 (1977) ("Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.").
In the case at bar, the change in the law alleged by petitioner involves the Mandatory Minimum Sentencing Guidelines, as set forth in 18 Pa.C.S.A. § 7508. At his 2003 PCRA hearing, petitioner argued that, in 1990, the guidelines were amended to increase the mandatory minimum sentence, thereby prejudicially affecting his 1991 sentence. What petitioner fails to understand, however, is that the Mandatory Minimum Sentencing Guidelines had no bearing on his ultimate sentence. The sentencing judge found that the severity of petitioner's actions, together with the enhancement for this conviction being a repeat offense, required that petitioner be sentenced to a term well above the statutory minimum set forth in either version of the statute. That sentence fell within the statutory maximum established by 35 Pa.C.S.A. § 780-113(a)37(f)(1.1), together with 35 Pa.C.S.A. § 780-115. Consequently, the statutory change did not affect the length of petitioner's sentence and, as such, could not offend the Ex Post Facto Clause.
E. Forfeiture Claims
1. Denial of Right to Counsel of Choice
Petitioner next asserts that the forfeiture action held in connection with his current conviction denied him his right to counsel of choice during his criminal trial. By way of background, we note that a temporary restraining order was entered on January 13, 1989, allowing petitioner's real property to be seized in accordance with 42 Pa.C.S.A. § 6802. Although a final hearing on that restraining order was scheduled for January 20, 1989, it was postponed at the request of petitioner's counsel and, on agreement of both parties, the court continued the restraining order for sixty days. Ultimately, all of the assets seized during police searches of plaintiff's residence were forfeited. Petitioner now claims that the seizure of his assets prevented him from being able to pay privately-retained, competent counsel for his criminal trial, in violation of the Sixth Amendment.
The Sixth Amendment provides, inter alia, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. CONST., amend. VI. The Supreme Court has long held that the right to the assistance of counsel includes the right to counsel of the defendant's choosing. Powell v. State of Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58 (1982); United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir.), cert. denied, 519 U.S. 1047, 117 S.Ct. 623 (1996). Indeed, "the most important decision a defendant makes in shaping his defense is his selection of an attorney." United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979)." Thus, if a defendant chooses a particular lawyer, a court may not take arbitrary action prohibiting the effective use of that counsel. Id. at 57; see also U.S. v. Rankin, 779 F.2d 956, 958 (3d Cir. 1986). The right, however, is not absolute and must be balanced against the requirements of the fair and proper administration of justice. Davis v. Stamler, 650 F.2d 477, 479-480 (3d Cir. 1981). Where "considerations of judicial administration" supervene, the presumption in favor of counsel of choice is rebutted and the right must give way.Fuller v. Diesslin, 868 F.2d 604, 607 n. 3 (3d Cir.), cert. denied, 493 U.S. 873, 110 S.Ct. 203 (1989).
Petitioner alleges that by seizing and forfeiting his assets, the Commonwealth precluded him from hiring his counsel of choice. This precise claim was squarely addressed by the United States Supreme Court in Caplin Drysdale, Chartered v. United States, 491 U.S. 617, 109 S.Ct. 2646 (1989). The petitioner in that matter argued that the federal forfeiture statute, under which assets were seized and forfeited, prevented the hiring of counsel of choice, in violation of the Sixth Amendment. Id. at 622-623. The Supreme Court rejected this argument, stating that "[t]he [ Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Id. at 624. Nothing in a forfeiture statute prevents a defendant with non-forfeitable assets from hiring an attorney or disqualifies any attorney from serving as defense counsel. Id. at 625. "A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice." Id. at 626. As such, the court rejected "any notion of a constitutional right to use the proceeds of crime to finance an expensive defense." Id. at 630 (quoting In re Forfeiture Hearing as to Caplin and Drysdale, 837 F.2d 637, 649 (1988)).
In the case at bar, petitioner's seized assets were ultimately forfeited under the Pennsylvania forfeiture statute. Once they were adjudged forfeitable, petitioner had no entitlement to use them to hire defense of counsel of choice. Petitioner still remained free to obtain chosen counsel, albeit without the benefit of funds procured through his illegal drug operation. Consequently, the forfeiture did not unconstitutionally deprive him of Sixth Amendment right to counsel of choice.
Notably, the accuracy of the forfeiture proceedings falls beyond this Court's province on habeas corpus review.
2. Denial of Right to Counsel Through Commonwealth's Creation of a "Corrupt Conflict of Interest."
Petitioner also contends that he was denied his Sixth Amendment right to counsel of choice through the creation of a corrupt conflict of interest. He argues that the police started an investigation of Elliott Goldberg, petitioner's retained counsel, and wanted petitioner to participate in that investigation. Thereafter, petitioner felt that he could no longer communicate with Mr. Goldberg in his representation of him.
"The Sixth Amendment guarantee of effective assistance of counsel includes two corrective rights, the right to adequate representation by an attorney of reasonable competence and the right to the attorney's undivided loyalty free of conflict of interest." United States v. Moscony, 927 F.2d 742, 748 (3d Cir.), cert. denied, 501 U.S. 1211, 111 S.Ct. 2812, reh'g denied, 501 U.S. 1270, 112 S.Ct. 16 (1991) (internal citations omitted). "There is no absolute right to particular counsel where there is an actual conflict of interest." United States v. Provenzano, 620 F.2d 985, 1004 (3d Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267 (1980). Likewise, the potential for serious conflicts can outweigh the defendant's right to counsel of choice. Voigt, 89 F.3d at 1075. While a criminal defendant can waive his or her Sixth Amendment rights in some circumstances, trial courts retain "an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 1697-1698,reh'g denied, 487 U.S. 1243, 108 S.Ct. 2918 (1988). If the court finds that either an actual conflict or a serious potential for conflict exists, "the presumption in favor of a defendant's counsel of choice is overcome and the trial court may disqualify counsel and reject the defendant's waiver of conflict-free representation." Moscony, 927 F.2d at 750.
In the case at bar, petitioner gave a statement to police on February 27, 1989. At that time, he extensively implicated Elliot Goldberg, his hired defense counsel, as one of his regular clients in the sale of cocaine. See Response at Exh. B. He suggested that Mr. Goldberg purchased cocaine from him on at least fifty occasions. Id. Thereafter, as petitioner testified at his PCRA hearing, the Commonwealth wanted petitioner's participation in an investigation of Mr. Goldberg. (N.T. 1/7/99, at 13). As a result of the questioning by the Commonwealth, petitioner felt that a conflict of interest was created and he was uncomfortable in his ability to communicate with Mr. Goldberg. Id. at 13-14.
Notably, petitioner does not allege that a motion to disqualify was filed by the Commonwealth or that he was forced by the court to forego Mr. Goldberg's representation. Rather, he argues only that he could no longer communicate with counsel. Moreover, petitioner himself created a clear conflict of interest by accusing his counsel of criminal wrongdoing directly related to his own drug dealing. Therefore, Mr. Goldberg became a possible witness against petitioner and petitioner against him. Such a conflict overcomes the presumption in favor of the petitioner's right to counsel of choice and obviates petitioner's constitutional right to continue under Mr. Goldberg's representation.
3. Violation of Constitutional Prohibitions Against Double Jeopardy by Combination of Forfeiture Action and Prison Sentence
By way of further challenge to his conviction, petitioner next claims that the combination of the forfeiture action and his subsequent criminal trial impinged on the constitutional prohibitions against double jeopardy. Specifically, he contends that the evidence seized from his home was used to support both the Commonwealth's forfeiture action, which resulted in the loss of all of his assets, and his criminal conviction, which resulted in a term of imprisonment. As he received two different punishments for the same action, petitioner claims that the Commonwealth contravened the Double Jeopardy Clause.
Again, this Court finds itself in a conundrum as to whether this claim was, in the complicated course of this case, presented to the state courts or whether, as respondent claims, it was waived. In its January 3, 2001 decision, the PCRA court held that the claim was not timely presented and was waived, but then remarked that "this issue of double jeopardy was already raised and ruled on by President Judge Smyth, and was determined to be without merit. His ruling was later affirmed by the Superior Court in 1990." See Petition for Writ of Habeas Corpus at Exh. G, p. 7. In the interests of not expending judicial resources on dissecting this seemingly contradictory statement and for the sake of comprehensiveness, we shall address this claim on its merits.
As noted above, the Double Jeopardy Clause protects against multiple punishments for the same offense. Baird, 63 F.3d at 1215. The Supreme Court, in United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135 (1996), reaffirmed its "traditional understanding that civil forfeiture does not constitute punishment for purpose of the Double Jeopardy Clause," Id. at 287. It explained that "Congress has long authorized the Government to bring parallel criminal proceedings and civil forfeiture proceedings . . ." Id. at 287-288. Thus, to hold that such a well-established practice was unconstitutional would have overruled a long line of precedent.Id. at 288. The court went on to reason that civil forfeitures are not "criminal punishments because they [do] not impose a second in personam penalty for the criminal defendant's wrongdoing. Id. at 276. Moreover, "[c]ivil forfeitures, in contrast to civil penalties, are designed to do more than simply compensate the Government . . . [they] are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct." Id. at 284.
Turning to the actual forfeiture proceedings challenged in that case, the Court applied a two-part inquiry developed in United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 So. Ct. 1099 (1984), to determine whether the civil in rem forfeiture was indeed non-punitive in nature. Ursery, 518 U.S. at 288. First, the Court asked whether Congress intended the civil forfeiture proceedings at issue to be criminal or civil. Id. Second, it considered whether the proceedings were so punitive in fact as to "`persuade [the Court] that the forfeiture proceeding[s] may not legitimately be viewed as civil in nature,' despite Congress' intent." Id. (quoting 89 Firearms, 465 U.S. at 366). Under this latter prong, the court noted that a defendant must establish by the "clearest proof" that the government has provided a sanction so punitive as to transform what was clearly intended as a civil remedy into a criminal penalty. Id. at 278 (quoting 89 Firearms, 465 U.S. at 366). Finding that the in rem civil forfeitures were neither "punishment" nor criminal for purposes of the Double Jeopardy Clause, the Court declined to grant relief to the defendant. Id. at 292; see also United States v. Ukandu, 894 F. Supp. 197, 199 (E.D. Pa. 1995) (civil forfeiture of defendant's money as proceeds of drug trafficking was not punishment for purposes of Double Jeopardy Clause and, thus, subsequent term of imprisonment constituted first, not second punishment).
Notably, the United States Supreme Court has recognized that, for purposes of the Excessive Fines Clause of the Eighth Amendment, not all modern civil in rem forfeiture provisions are non-punitive in nature. United States v. Bajakajian, 524 U.S. 321, 331 n. 6, 118 S.Ct. 2028, 2035 n. 6 (1998).
The United States Supreme Court has considered such factors as: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 n. 7, 104 S.Ct. 1099, 1106 n. 7) (1984) (citations omitted).
In the case at bar, we must likewise engage in the same two-part inquiry to determine whether the civil forfeiture of petitioner's property, followed by his criminal conviction and sentencing, constituted a violation of the Double Jeopardy Clause. We first ask whether the Pennsylvania forfeiture statute, under which the Commonwealth proceeded against petitioner's property, was intended to be civil or criminal in nature. Petitioner's forfeiture of property occurred under 42 Pa.C.S.A. § 6801, et seq. Pursuant to § 6802(a), "[t]he proceedings for the forfeiture or condemnation of property, the sale of which is provided for in this chapter, shall be in rem, in which the Commonwealth shall be the plaintiff and the property the defendant." 42 Pa.C.S.A. § 6802(a). Interpreting that statute, the Pennsylvania Supreme Court has concluded that the Pennsylvania General Assembly intended forfeitures brought pursuant to § 6801 to be civil in nature. Commonwealth v. Wingait Farms, 690 A.2d 222, 226 (Pa.), cert. denied, 522 U.S. 831, 118 S.Ct. 98, reh'g denied, 522 U.S. 1022, 118 S.Ct. 617 (1997). Adopting the Pennsylvania Supreme Court's reading of its own statute, we thus find that the first prong of the test weighs against a finding of a constitutional violation.
We must then query whether the forfeiture was so punitive as to become criminal in effect or purpose. In that regard, petitioner has failed to establish by the "clearest proof" that the Commonwealth has provided a sanction so punitive as to transform it into a criminal penalty. The forfeiture involved no affirmative disability or restraint on petitioner. "[F]orfeiture of the proceeds of unlawful activity is not punishment because the purported owner has lost nothing to which he was ever lawfully entitled." United States v. Ogbuehi, 897 F. Supp. 887, 891 (E.D. Pa. 1995) (citing United States v. Tilley, 18 F.3d 295, 297, 300 (5th Cir. 1994)). Moreover, the action proceeded against petitioner's property and required no finding of scienter on his part. Finally, where a penalty merely reimburses the government or society for the costs arising from a defendant's criminal conduct, the penalty is remedial in nature.Id. Although, in petitioner's perspective, the forfeiture had a punitive effect, its primary purpose was to permit the surrender of proceeds traceable to controlled substance exchange and the compensation of the government. As petitioner has not shown that the forfeiture action had any purpose other than to make the government whole for the costs of his drug dealing, he cannot establish a double jeopardy claim.
Because we determine that the forfeiture was remedial and not punitive, petitioner's subsequent sentence constituted a first, not a second, imposition of punishment. Accordingly, no violation of the Double Jeopardy Clause occurred.
4. Claims of Constitutional and Other Violations in Forfeiture Proceedings
Petitioner raises several other claims that challenge constitutional deficiencies or other errors in his forfeiture proceedings. In particular, he alleges that the proceedings violated the Fourth Amendment prohibition against illegal seizure and seizure, his Fifth and Fourteenth Amendment due process rights, the Eighth Amendment prohibition against cruel and unusual punishment, his Seventh Amendment right to a jury trial and the Commonwealth's holding of assets not subject to forfeiture. In conjunction with these claims, he asserts that trial and direct appeal counsel were ineffective for failing to preserve them.
Under 28 U.S.C. § 2254(a), a federal court shall entertain a petition for 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 and treaties of the United States." 28 U.S.C. § 2254(a). The United States Supreme Court has interpreted this language "as requiring that the habeas petitioner be `in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-491, 109 S.Ct. 1923, 1925 (1989); see also Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003). "The payment of restitution or a fine, absent more, is not the sort of `significant restraint on liberty' contemplated in the `custody' requirement of the federal habeas corpus statutes." Obado, 328 F.3d at 718.
Petitioner's challenges to the civil in rem forfeiture proceedings pursuant to the Fourth, Sixth, Eighth and Fourteenth Amendments are simply not cognizable on federal habeas corpus review. Petitioner is in custody following his convictions in the Montgomery County Court of Common Pleas at Criminal Docket Nos. 0526-89 and B1735-89. The forfeitures were civil proceedings to which petitioner was not even a party. Moreover, they resulted only in the loss of property in petitioner's possession, not in any form of "custody" or "significant restraint on liberty." Consequently, constitutional deficiencies in those proceedings are not encompassed within the jurisdiction of this Court under the federal habeas statute. We therefore dismiss them in their entirety.
F. Whether the Commonwealth WithheldExculpatory Evidence Favorableto Petitioner in Violation of Brady v. Maryland
Petitioner's final claim asserts that the Commonwealth engaged in prosecutorial misconduct by withholding exculpatory and impeaching evidence which would have been favorable to petitioner and changed the outcome of his trial. He refers to a laundry list of discovery which he sought in state court, but was denied, including, inter alia, names and addresses of all confidential informants; tangible items seized from his home; written confessions, transcripts and recordings of electronic surveillance; all written or recorded statements of eyewitnesses, co-defendants, co-conspirators, or accomplices; notes and investigative reports from state and county detectives; copies of search warrants and court orders; and a copy of the District Attorney's file. Moreover, as noted earlier, he incorporates his Supplemental Motion for Post-Conviction Collateral Relief, filed September 24, 1998, wherein he argues that counsel failed to file for mandatory discovery of confidential informants'/secret police agents' (William Bechtel, Barbara Bechtel, Russel Kent and Jeffrey Moser) Brady material, the criminal records of these informants, the Commonwealth's deals with William Bechtel and Russel Kent to offer information, copies of the informants' statements and all police reports and notes. Accordingly, he alleges that the failure of the Commonwealth to produce this evidence effectuated a violation of his Fourteenth Amendment rights.
The list of requested discovery is a six-page, typed Motion to Compel Discovery Pursuant to Pa. R. Crim. P. 305, which petitioner filed in connection with his PCRA petition.
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), the United States Supreme Court held that, under the Sixth Amendment to the Constitution, a prosecutor is forbidden from suppressing "evidence favorable to an accused upon request . . . where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. Dissecting this mandate, the Supreme Court subsequently enumerated three elements of a true Brady violation: (1) the evidence must be favorable to the accused as either exculpatory or impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) the evidence must be material in that prejudice did or would ensue from the suppression. Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 1948 (1999);see also Hollman v. Wilson, 158 F.3d 177, 180 (3d Cir. 1998), cert. denied, 525 U.S. 1143, 119 S.Ct. 1035 (1999) (a new trial will be granted for a Brady violation only if the defendant can demonstrate both that the prosecution withheld exculpatory evidence, and that the evidence was material, in that the defendant did not receive a fair trial because of its absence).
Brady's progeny have sought to define what exactly constitutes "exculpatory" evidence in satisfaction of the firstBrady element. "Exculpatory evidence includes material that goes to the heart of the defendant's guilt or innocence, as well as that which might well alter the jury's judgment of the credibility of a crucial prosecution witness." United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984). Hence, impeachment evidence can constitute exculpatory evidence under Brady when the credibility of a witness may be determinative of guilt or innocence. Starusko, 729 F.2d at 260. It is well-established, however, that Brady does not require the disclosure of neutral, irrelevant or inculpatory evidence. United States v. Pone, Crim. A. No. 93-40-07, 1994 WL 369870, *5 n. 8 (E.D. Pa. July 15, 1994), aff'd, 52 F.3d 318 (3d Cir. 1995); United States v. Enigwe, Crim. A. No. 92-00257, 1992 WL 382325, *7 (E.D. Pa. Dec. 9, 1992), aff'd, 26 F.3d 124 (3d Cir.), cert. denied, 513 U.S. 950, 115 S.Ct. 364 (1994).
In the case at bar, petitioner mistakenly equates his inability to obtain all of the discovery he requested with a constitutional violation. He makes a broad request for a series of items, many of which are publicly available or were already produced. More importantly, he fails to demonstrate how any of these items constitute exculpatory evidence under Brady. For example, he asks for copies of search warrants, and written confessions, but does not indicate how such items go to the heart of his innocence or how they might alter the jury's judgment of the credibility of a crucial prosecution witness. With respect to his request for tapes of his recorded conversations with police agents Russell Kent and William Bechtel, as discussed previously, petitioner neglects to indicate how copies of such tapes would do anything other than further inculpate him and confirm his participation in the drug transaction at issue. As the Constitution imposes no obligation on the Commonwealth to respond to this unwieldy document request, the Court rejects this claim.
To the extent petitioner contends that these items were part of mandatory discovery under Pa. R. Crim. P. 573(B)(1) (formerly Rule 305), we decline to address this allegation, as it is one of purely state law. See Estelle, 502 U.S. at 67-68.
See supra pp. 10-12.
Petitioner argues, in his state court briefs, that the tapes were unintelligible and could not have been used against him. During a PCRA hearing on January 7, 1999, however, petitioner's trial counsel testified that the tapes "were used at trial. They were extremely incriminating. They were very clear, and Mr. Ozoroski's voice was clear on the tape." (N .T. 1/17/99, p. 72).
V. CONCLUSION
Having thoroughly considered both parties' pleadings, together with attached exhibits and transcripts, this Court finds no basis on which to grant the writ of habeas corpus. As no grounds for relief exist, the Court makes the following:
RECOMMENDATION
AND NOW, this day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED. There is no probable cause to issue a certificate of appealability.