Opinion
Civil Action No. 00-5948.
September 17, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2254. Petitioner is currently incarcerated at the State Correctional Institution ("SCI") in Frackville, Pennsylvania. For the reasons which follow, the habeas petition should be denied and dismissed.
Although petitioner had been incarcerated at the SCI in Huntingdon, Pennsylvania at the time he filed his petition, see Hab. Pet. at 1, the Court's civil docket reflects that petitioner is currently incarcerated at the SCI in Frackville.
Unless otherwise noted, the following facts were compiled from the habeas petition, the Response thereto of the District Attorney of Philadelphia, and a copy of relevant portions of the record submitted by the parties.
On January 24, 1992, petitioner pleaded nolo contendere to two counts of murder in the first degree. See Commonwealth v. Thomas, Nos. 5387-5392 Oct. Term 1990, Mem. Op. at 1 (C.P. Phila. filed Apr. 21, 1999). He was sentenced to two concurrent terms of life in prison. Id. Petitioner did not file a direct appeal from the judgment of sentence. Id.
Petitioner was also convicted on June 18, 1993, following a jury trial in the Philadelphia Court of Common Pleas, of First Degree Murder, Criminal Conspiracy, Carrying Firearms on a Public Street, Kidnaping, and Unlawful Restraint, for which he was sentenced to life in prison. However, the present petition does not challenge those 1993 convictions, which were challenged in a separate petition in this Court under Civil Action No. 00-5361.
On December 11, 1996, petitioner filed a pro se petition under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. § 9541-46. See Common Pleas Ct. Op. filed 4/21/99, at 1. However, petitioner was subsequently represented by counsel, and on November 21, 1997, an amended PCRA petition was filed by counsel for petitioner. Id. Following an extended evidentiary hearing, the PCRA Court dismissed the petition on January 27, 1999. Id.
On May 5, 2000, the Superior Court of Pennsylvania affirmed the PCRA Court's dismissal of the petition. See Pa. Super. Ct. Op. filed 5/5/00, at 3. The Supreme Court of Pennsylvania denied allowance of appeal on September 19, 2000. See Hab. Pet. ¶ 11(c)(6); Resp. to Hab. Pet. ¶ 8.
Among other things, the Superior Court agreed with the PCRA Court's finding that the testimony in support of petitioner's claim was "wholly incredible." See Commonwealth v. Thomas, No. 420 EDA 1999, Mem. Op. at 1 (Pa.Super. filed May 5, 2000).
Petitioner thereafter filed the present habeas petition alleging various grounds for relief. See Hab. Pet. ¶ 12. In the District Attorney's Response to the habeas petition, she argues that habeas relief is not warranted since all but one of petitioner's claims are procedurally defaulted in the Pennsylvania courts, and that petitioner's non-defaulted claim is without merit. See Resp. to Hab. Pet. at 9-23.
Following the filing of the District Attorney's Response, petitioner filed a pro se document styled "Motion to Strike" (Doc. No. 35) which "requests that all issues except for the two raised by Petitioner (as identified in the Motion to Strike) be stricken." See Petitioner's Mot. to Strike filed 9/9/04, at 2 (parenthetical added) (emphasis in original). Specifically, petitioner states that he "is only raising two claims from his [§] 2254 [petition]:" (1) the violation of petitioner's due process rights "through the use of sexual favors by Philadelphia homicide detectives to influence a nolo guilty plea;" and (2) the "propriety of a nolo contendere [plea] in a capital case wherein the law forbids such a plea in capital cases." See Petitioner's Mot. to Strike filed 9/9/04, at 1.
II. DISCUSSION
(A) State Law Claim
Pursuant to 28 U.S.C. § 2254(a), this Court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." See § 2254(a) (emphasis added). Thus, issues presented to a federal habeas court which involve a state law matter only do not entitle a petitioner to federal habeas corpus relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see, e.g., Kontakis v. Beyer, 19 F.3d 110, 117 (3d Cir. 1994) ("federal habeas corpus relief does not lie for errors of state law") (quotingEstelle), cert. denied, 513 U.S. 881 (1994);Ortiz-Santiago v. Stickman, 2004 WL 1119930, at *5 (E.D. Pa. May 19, 2004).
In the present case, the second claim identified in petitioner's Motion to Strike alleges a violation of state law. Specifically, petitioner claimed that acceptance of a plea ofnolo contendere in a capital case is a violation underCommonwealth v. Shrope, 107 A.729 (Pa. 1919). See Petitioner's Mot. to Strike filed 9/9/04, at 1-2 (citingShrope). Therefore, since petitioner's second claim identified in his Motion to Strike alleges a violation of Pennsylvania law, this claim is not cognizable in a § 2254 petition, and therefore, habeas relief is not available on this claim. See Estelle, 502 U.S. at 67-68; see also Kontakis, 19 F.3d at 117;Ortiz-Santiago, 2004 WL 1119930, at *5.
(B) Exhaustion and Procedural Default
"It is axiomatic that a federal habeas court may not grant a petition for a writ of habeas corpus filed by a person incarcerated from a judgment of a state court unless the petitioner has first exhausted the remedies available in the state courts." Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1998) (as amended) (citing 28 U.S.C. § 2254(b)(1)(A)), cert. denied, 532 U.S. 919 (2001); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993). Specifically, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); see Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001), cert. denied, 535 U.S. 957 (2002).
Requiring exhaustion of state remedies "addresses federalism and comity concerns by `afford[ing] the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.'" Lambert, 134 F.3d at 513 n. 18 (citing Toulson, 987 F.2d at 986). Although the exhaustion rule is a matter of comity and not jurisdiction, it "should be strictly adhered to because it expresses respect for our dual judicial system." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992) (quoting Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990)); see Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996) ("Pursuing state remedies is not a mere formality").
The petitioner bears the burden of proving all facts entitling him to a discharge from custody as well as demonstrating that he has met all procedural requisites entitling him to relief. Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). Thus, the habeas petitioner carries the burden of proving exhaustion of all available state remedies. Lambert, 134 F.3d at 513; Toulson, 987 F.2d at 987.
In the present case, the PCRA Court identified the claim raised by petitioner in his PCRA appeal: "[Petitioner] claims that he was induced to plead guilty by a promise from homicide detectives that he would be permitted to receive sexual favors from his fiancee Medina Jones (`Jones') in exchange for his pleas." See Common Pleas Ct. Op. filed 4/21/99, at 1;see also Pa. Super. Ct. Op. filed 5/5/00, at 1; Petitioner's Am. PCRA Pet. filed 11/21/97, at 1-4. Since petitioner has "invok[ed] one complete round of the State's established appellate review process," with regard to this claim, he has satisfied the exhaustion requirement with regard to the claim.See O'Sullivan, 526 U.S. at 844-45; see also Wenger, 226 F.3d at 223. Therefore, to the extent that petitioner raises this claim in the present petition, this Court may address the merits of the claim. See O'Sullivan, 526 U.S. at 844-45.
"[Petitioner] claim[ed] that while he was incarcerated two rendezvous were arranged — one in 1990 and one on February 3, 1992." See Pa. Super. Ct. Op. filed 5/5/00, at 1 n. 1.
As explained above, petitioner's Motion to Strike (Doc. No. 35) filed on Sept. 9, 2004 states that petitioner wishes to "only rais[e] two claims from his [§] 2254 [petitioner]," and he requests that "all issues except for the two raised by Petitioner (in his Motion to Strike) be stricken." See Petitioner's Mot. to Strike at 1-2 (parenthetical added) (emphasis in original). Thus, it appears that the only issues which petitioner wishes to raise are the two claims identified in his Motion to Strike.
Therefore, petitioner's Motion to Strike appears to be a request to withdraw all claims other than the two claims identified in his Motion to Strike, and to that extent, the motion should be granted.
However, to the extent that the present petition may be construed as raising any cognizable claims other than the claim addressed by the Pennsylvania courts on petitioner's PCRA appeal, as respondent points out, see Resp. to Hab. Pet. at 16, petitioner failed to fairly present these claims to the Pennsylvania courts on direct appeal or in his PCRA appeal. See, e.g., Pa. Super. Ct. Op. filed 5/5/00, at 1; Common Pleas Ct. Op. filed 4/21/99, at 1; see also Petitioner's Am. PCRA Pet. filed 11/21/97, at 1-4. Thus, the Pennsylvania courts did not have "one full opportunity to resolve" these claims during "one complete round of the State's established appellate review process." See O'Sullivan, 526 U.S. at 844-45; Wenger, 266 F.3d at 223.
Even assuming arguendo that the second claim identified in petitioner's Motion to Strike is a cognizable § 2254 claim alleging a "violation of the Constitution or laws or treaties of the United States," see 28 U.S.C. § 2254(a) (emphasis added), petitioner has failed to fairly present that claim to the Pennsylvania courts "by invoking one complete round of the State's established appellate review process." See O'Sullivan, 526 U.S. at 844-45. In neither his pro se PCRA petition nor his counseled amended PCRA petition did petitioner present this claim as alleging a violation of the Constitution or laws of the United States. See Petitioner's Am. PCRA Pet. filed 11/21/97, at 3 n. 2 (claiming a nolo contendere plea in a capital case was improper under Commonwealth v. Shrope, 107 A. 729 (Pa. 1919)); Petitioner's Pro Se PCRA Pet. filed Dec. 1996, at 5-6; see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam) ("If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.") (emphasis added). Thus, petitioner's state court pleadings demonstrate that he failed to "present the legal theory and supporting facts," see Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996), "in a manner that put [the state courts] on notice that a federal claim is being asserted," see Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004) (quotingMcCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)) (internal quotation marks omitted); see also Duncan, 513 U.S. at 366 (if a habeas petitioner wishes to claim the denial of a right guaranteed under the United States Constitution, "he must say so, not only in federal court, but in state court.").
"The failure to `fairly present' federal claims in state court bars the consideration of those claims in federal court by means of habeas corpus because they have been procedurally defaulted."Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (citingColeman v. Thompson, 501 U.S. 722, 731 (1991)), cert. denied, 123 S. Ct. 195 (2002). "By refusing to consider claims that have been procedurally defaulted in state court, [the procedural default] doctrine `encourage[s] state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.'" Cristin, 281 F.3d at 410 (quoting Rose v. Lundy, 455 U.S. 509, 518-19 (1982)).
In Coleman v. Thompson, 501 U.S. at 750, the Supreme Court explained the exceptions to the procedural default doctrine:
In all cases in which a state prisoner has defaulted his federal claims in state court[,] . . . federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate the failure to consider the claims will result in a fundamental miscarriage of justice.See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750). To satisfy the cause and prejudice requirement, "a petitioner must demonstrate some objective factor external to the defense that prevented compliance with the state's procedural requirements." Cristin, 281 F.3d at 412 (quoting Coleman, 501 U.S. at 753); see also Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)), cert. denied, 532 U.S. 980 (2001).
In the alternative to showing cause and prejudice, a petitioner must show that failure to review the federal habeas claim will result in a "miscarriage of justice." See Werts, 228 F.3d at 193. "Generally, this exception will apply only in extraordinary cases, i.e., `where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'"Id. (quoting Murray, 477 U.S. at 496). "To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime . . . by presenting new evidence of innocence." Cristin, 281 F.3d at 412 (quoting Keller v. Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001) (citations omitted)); see Schlup v. Delo, 513 U.S. 298, 316 (1995).
Where "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." Coleman, 501 U.S. at 735 n. 1. Here, it appears that petitioner no longer has a remedy by which the state courts could consider his claims because he is now barred from properly raising them in another PCRA petition. See 42 Pa. C.S.A. § 9545(b)(1). In particular, petitioner's judgment of conviction became final more than twelve years ago, and a PCRA petition would now be time-barred under the PCRA's one-year time limit on filing petitions, including second or subsequent petitions. See Walker, 56 Fed. Appx. at 578 n. 1; see also Lines v. Larkins, 208 F.3d 153, 164-66 (3d Cir. 2000), cert. denied, 531 U.S. 1082 (2001).
42 Pa. C.S.A. § 9545(b)(1) states: "Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final. . . ." Walker v. Frank, 56 Fed. Appx. 577, 578 n. 1 (3d Cir. Jan. 14, 2003) (emphasis added), cert. denied, 124 S. Ct. 91 (2003); see also Hendel v. Vaughn, 1998 WL 470159, at *5 n. 8 (E.D. Pa. Aug. 10, 1998).
Thus, any claims raised by petitioner cognizable under § 2254 other than the claim identified above as properly exhausted are procedurally defaulted in the Pennsylvania courts. To the extent that petitioner claims ineffective assistance of counsel as "cause" for his default, that claim must fail. The conduct of counsel on collateral appeal cannot amount to cause that would excuse a failure to properly litigate a claim in state courts. See Caswell, 953 F.2d at 862 ("Ineffectiveness of counsel does not provide sufficient cause to excuse procedural default when counsel is not constitutionally mandated."); Cristin, 281 F.3d at 420 (citingColeman, 501 U.S. at 752) (there is no constitutional right to counsel at the PCRA level of appeal); see also 28 U.S.C. § 2254(i) (Supp. 2002) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). Therefore, ineffective assistance of PCRA counsel cannot amount to cause that would excuse petitioner's default in failing to properly litigate his claims in his PCRA appeal. Since petitioner fails to show "cause and prejudice" or a "fundamental miscarriage of justice" to excuse his default on PCRA appeal, the Court may not consider the merits of petitioner's defaulted claims. See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750); see also Werts, 228 F.3d at 194.
(C) Legal Standard Under 28 U.S.C. § 2254
Since the present petition was filed after April 1996, the petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132 (Apr. 26, 1996).See Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir.), cert. denied, 537 US. 1049 (2002). Title 28 U.S.C. § 2254(d), as amended by the AEDPA, precludes federal habeas relief unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by 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) (footnote added) (emphasis added); see Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S. Ct. 269 (2001). In Williams v. Taylor, the Supreme Court interpreted the standard under § 2254(d)(1) as follows:
"Clearly established Federal law, as determined by the Supreme Court of the United States" refers to the "holdings, as opposed to the dicta" of the Supreme Court's decisions as of the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000); Ross v. Vaughn, 2001 WL 818359, at *3 (E.D. Pa. Jan. 16, 2001); see Lockyer v. Andrade, 123 S. Ct. 1166, 1172 (2003).
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 than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams, 529 U.S. at 412-13 (footnote added).
Thus, a "decision is `contrary to' a Supreme Court holding if the state court `contradicts the governing law set forth in [the Supreme Court's] cases.'" Rompilla v. Horn, 355 F.3d 233, 250 (3d Cir. 2004) (quoting Williams, 529 U.S. at 405-06).
The Court of Appeals for the Third Circuit observed in Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir.) (en banc), cert. denied, 528 U.S. 824 (1999), that to prove entitlement to habeas relief under the "contrary to" provision of § 2254(d)(1), "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo, 171 F.3d at 888 (emphasis added); see Werts, 228 F.3d at 197. "This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent." Id. at 197 (quoting Matteo, 171 F.3d at 888).
Prior to the Supreme Court's decision in Williams v. Taylor, the Court of Appeals for the Third Circuit construed the standard of review under § 2254(d)(1) in Matteo. The Third Circuit has since stated that its opinion in Matteo is in accord with the Supreme Court's decision in Williams. See Werts, 228 F.3d at 197.
When making the "unreasonable application" inquiry, the federal habeas court should ask "whether the state court's application of clearly established federal law was objectively unreasonable."Williams, 529 U.S. at 409 (emphasis added); see Chadwick v. Janecka, 312 F.3d 597, 607 (3d Cir. 2002) (citing Williams, 529 U.S. at 409, and Matteo, 171 F.3d at 891), cert. denied, 538 U.S. 1000 (2003). In applying the "unreasonable application" provision of § 2254, "[t]he federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo, 171 F.3d at 891 (emphasis added); see Chadwick, 312 F.3d at 607 (citing Matteo, 171 F.3d at 891);Werts, 228 F.3d at 197.
The Supreme Court stressed that an application of federal law may be incorrect but still not unreasonable. Williams, 529 U.S. at 411; see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Thus, mere disagreement with a state court's conclusions is insufficient to justify relief. Williams, 529 U.S. at 411;Matteo, 171 F.3d at 891. In determining whether the state court's application of the Supreme Court precedent is objectively reasonable, habeas courts may consider the decisions of federal courts of appeals and district courts.Id. at 890; Ross, 2001 WL 818359, at *4.
With regard to findings of fact, § 2254(e)(1) provides that a state court's determination of a factual issue is "presumed to be correct" and further provides that a habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (emphasis added); see Chadwick, 312 F.3d at 607;Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. "This presumption applies to the factual determinations of both state trial and appellate courts." Duncan, 256 F.3d at 196; see Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Furthermore, under Supreme Court and Third Circuit precedent, the presumption of correctness under the habeas statute applies toimplicit factual findings as well as the express findings of the state courts. See Campbell v. Vaughn, 209 F.3d 280, 285-86, 290 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001).
Factual issues are "basic, primary or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators.'" Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Townsend v. Sain, 372 U.S. 293 (1963)).
(D) Petitioner's Plea
In the sole cognizable § 2254 claim which petitioner fairly presented to the Pennsylvania courts, petitioner alleges that his plea of nolo contendere was unknowing and involuntary. See Hab. Pet. ¶ 12 (B); see also Petitioner's Am. PCRA Pet. filed 11/21/97, at 1-4. A state court plea is constitutional if the circumstances demonstrate that the defendant understood the nature and the consequences of the charges against him and that the defendant voluntarily chose to plead. Ardrey v. Bravo, 2002 WL 700406, at *2 (10th Cir. Apr. 24, 2002) (citing Boykin v. Alabama, 395 U.S. 238, 242-44 (1969)). Thus, in order to demonstrate that his plea was unknowing or involuntary, a petitioner must present proof that he was not advised of, or did not understand, the direct consequences of his plea. Brady v. United States, 397 U.S. 742, 755 (1970); Jones v. Kearney, 2002 WL 373472, at *5 (D. Del. Mar. 6, 2002); see Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)) (The "long standing test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'"); Heiser v. Ryan, 951 F.2d 559, 561 (3d Cir. 1991) (quoting Brady, 397 U.S. at 748) (A guilty plea "must be a `knowing, intelligent act,' that is `the voluntary expression of [the defendant's] own choice.'").
"A habeas petitioner challenging the voluntary nature of his or her guilty plea faces a heavy burden." Zilich v. Reid, 36 F.3d 317, 320 (3d Cir. 1994) (pre-AEDPA). "[T]he representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations made in open court carry a strong presumption of verity." Id. (quoting Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)).
Here, in support of the denial of petitioner's claim on his PCRA appeal, the PCRA Court found that, while petitioner and Ms. Jones testified in support of petitioner's claim at the evidentiary hearing, their testimony was "wholly incredible."See Common Pleas Ct. Op. filed 4/21/99, at 2. The PCRA Court specifically found that "[t]here has been no reliable evidence that suggests that [petitioner] was promised anything apart from the Commonwealth's agreement that it would only seek two life sentences to be served concurrently." Id. On appeal, in affirming the PCRA Court's denial of relief, Pennsylvania's Superior Court concluded, among other things, that the PCRA Court's credibility finding "cannot be disputed on this record." See Pa. Super. Ct. Op. filed 5/5/00, at 1.
In addition, the PCRA Court observed that "the Court engaged [petitioner] in an extensive colloquy on whether any other promises or inducements were made to him in exchange for his plea" and petitioner "repeatedly answered `no.'" See Common Pleas Ct. Op. filed 4/21/99, at 2. The Court further found: "This Court conducted a thorough colloquy, during which the defendant assured this Court that he understood his right to a jury trial but that he wished to waive it and he was doing so knowingly, intelligently, and voluntarily." Id. at 3.
Although the governing standard as to whether a plea is voluntary for purposes of the Constitution is a question of federal law, "questions of historical fact, including inferences properly drawn from such facts, are in this context entitled to the presumption of correctness accorded state court factual findings." See Parke v. Raley, 506 U.S. 20, 35 (1992) (citingMarshall v. Lonberger, 459 U.S. 422, 431-32 (1983)). Here, the Court must presume that the state court's determinations of the factual issues are correct since petitioner has not rebutted the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Duncan, 256 F.3d at 196, Werts, 228 F.3d at 196. This presumption of correctness "applies to the factual determinations of both state trial and appellate courts," see Duncan, 256 F.3d at 196; see Dickerson, 90 F.3d at 90, and to implicit as well as express findings of the state courts,see Campbell, 209 F.3d at 285-86, 290.
In light of the state court's factual findings, it cannot be said that the state court's adjudication of petitioner's claim "resulted in an outcome that cannot reasonably be justified."See Matteo, 171 F.3d at 891. Nor can it be said that "Supreme Court precedent requires an outcome contrary to that reached by" the state court. See id. Therefore, the state court's adjudication of petitioner's claim did not "result 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." See 28 U.S.C. § 2254(d)(1); see also Williams, 529 U.S. at 404-05; Matteo, 171 F.3d at 891. Accordingly, petitioner's claim does not warrant habeas relief.
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2)); see Miller-EL v. Cockrell, 123 S. Ct. 1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000). To establish this, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. at 484;see Miller-EL, 123 S. Ct. at 1040.
Furthermore, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; see Miller-El, 123 S. Ct. at 1046 (Scalia, J., concurring) (observing that Slack held "that a habeas petitioner seeking to appeal a district court's denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack, 529 U.S. at 484.
Here, since a reasonable jurist could not conclude that the Court would be incorrect in dismissing petitioner's aforementioned procedurally defaulted claims, see Slack, 529 U.S. at 484; see, e.g., Swisher v. True, 325 F.3d 225, 231 (4th Cir.) (finding that COA should not issue where habeas claim was barred by the procedural default doctrine), cert. denied, 123 S. Ct. 2668 (2003), and since petitioner has not made the requisite showing of the denial of a constitutional right with regard to petitioner's remaining claims, a certificate of appealability is not warranted. See Slack, 529 U.S. at 484. Accordingly, the habeas petition should be denied and dismissed, and a COA should not issue.
My Recommendation follows.
RECOMMENDATION
AND NOW, this day of September 2004, upon consideration of the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 and respondent's opposition thereto, for the reasons provided in the accompanying Report, it is hereby RECOMMENDED that the habeas petition be DENIED and DISMISSED and that a certificate of appealability should not issue. IT IS FURTHER RECOMMENDED that, to the extent that Petitioner's Motion to Strike (Doc. No. 35) requests leave to withdraw all claims other than the two claims identified in his Motion to Strike, the Motion to Strike should be GRANTED.