Opinion
Civil Action No. 03-CV-1494.
June 3, 2004
REPORT AND RECOMMENDATION
Before this court is a pro se petition for a writ of habeas corpus filed by a state prisoner, Owen Williams, pursuant to 28 U.S.C. § 2254. Williams is currently residing in Kingston, Jamaica, following his parole on July 8, 2003, and deportation thereafter. For the reasons set forth below, this court recommends that the petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On January 4, 1990, following a bench trial in the Court of Common Pleas of Philadelphia County, Williams and two co-defendants were convicted of third-degree murder and criminal conspiracy. These charges stem from the murder of an employee of a drug house. The victim had been hired to sell drugs, but stole some for his personal use. As a result, he was beaten to death with a baseball bat. Williams was sentenced to an aggregate term of fifteen (15) to thirty (30) years' imprisonment.
Williams filed a timely appeal, but it was dismissed without prejudice because he failed to file an appellate brief. On June 22, 1993, Williams filed a petition for collateral relief pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541, et seq., requesting reinstatement of his direct appeal rights nunc pro tunc. On July 9, 1993, the PCRA court reinstated Williams's appellate rights. Williams filed his appeal nunc pro tunc on August 9, 1993, alleging numerous claims of error and ineffective assistance of counsel. On October 30, 1995, the Superior Court of Pennsylvania affirmed Williams's judgments of sentence.Commonwealth v. Williams, 673 A.2d 407 (Pa.Super. 1995) (table). Williams's petition for allocatur was denied by the Supreme Court of Pennsylvania on May 13, 1996. Commonwealth v. Williams, 676 A.2d 1198 (Pa. 1996) (table). Williams did not file a petition for a writ of certiorari in the Supreme Court of the United States.
On January 14, 1997, Williams filed a pro se PCRA petition. Counsel was appointed and filed an amended petition. On February 22, 1999, Williams filed a pro se amended PCRA petition and sought permission from the PCRA court to proceed pro se. Following a hearing, Williams's motion to proceed pro se was denied. On July 26, 2000, Williams filed another pro se amended petition. The PCRA conducted a second hearing on the issue of representation and subsequently permitted counsel to withdraw. However, on September 8, 2000, the PCRA court once again appointed counsel.
On July 26, 2001, new PCRA counsel filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213, 215 (1988). On November 19, 2001, after an independent review of the record, the PCRA court dismissed the petition without a hearing. On August 23, 2002, the Superior Court affirmed the order of the PCRA court. Commonwealth v. Williams, 809 A.2d 968 (2002) (table).
On March 10, 2003, Williams filed the instant petition for a writ of habeas corpus in which he claims that he was denied the right to a fair trial due to judicial bias; and that trial counsel was ineffective for failing to: 1) impeach the testimony of the Commonwealth's chief witness with his inconsistent pre-trial statement; 2) present the testimony of a witness who would have been able to provide additional testimony to attack the Commonwealth's chief witness and possibly impeach him; and 3) move to suppress pre-trial statements made by Williams's former girlfriend. Williams notified this court, by letter dated June 25, 2003, that he had been released on parole and was to be deported to Jamaica. The Commonwealth filed its response on January 22, 2004, and asserts that the claims raised provide no basis for federal habeas corpus relief.
DISCUSSION
It is well-settled that absent exceptional circumstances a federal court will not entertain a petition for a writ of habeas corpus until the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254 (b); O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254 (c). The policy of this total exhaustion doctrine is rooted in the tradition of comity: the state must be given the "initial opportunity to pass upon and correct" alleged violations of the petitioner's constitutional rights. Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). Exhaustion does not require that the highest state court rule on the merits of the petitioner's claims, but merely that the court be given the opportunity to review them. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989).
In order to be eligible for federal habeas relief, Williams must establish that the state court's adjudication of the merits of his claims: "1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d) (1), (d)(2); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1504 (2000). In addition, any factual determinations made by the state court shall be presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e).
The United States Supreme Court in Williams set forth a two-part test for analyzing claims under § 2254(d) making it clear that the "contrary to" and "unreasonable application" clauses of § 2254(d) have independent meaning. First, under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently from the Supreme Court on a set of materially indistinguishable facts. Id. at 1519. Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 1520. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was unreasonable." Id. "A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522. See also Early v. Packer, 537 U.S. 3, 10-11 (2002) (federal courts may not substitute their own judgment for that of the state court).
First, Williams claims that the trial court was biased against him. He claims that "[b]efore rendering a verdict, the trial court made statements that were irrational, illogical and unreasonable; the court also misconstrued the evidence; and the court manufactured evidence through extrapolation." In his accompanying memorandum of law, Williams cites various factual findings of the trial court to support his claim of bias. In each instance, Williams's complaints concern the trial court's rejection of some aspect of his defense.
This claim was raised in the state court on appeal from the denial of PCRA relief. After reviewing the record, the Superior Court found no evidence of bias on the part of the trial court.Commonwealth v. Williams, No. 3489 EDA 2001 (slip op. at 4). This court agrees with the Superior Court's determination that Williams, "rather than asserting actual instances of bias, finds fault with Judge Manfredi not believing his defense at trial."Id. Here, the trial court was the factfinder and his credibility determinations are entitled to the presumption of correctness absent clear and convincing evidence to the contrary. Thus, this court must conclude that the Superior Court's decision was reasonable. Early, 537 U.S. at 10-11.
Williams's remaining claims concern various assertions of ineffective assistance of counsel. When reviewing claims of ineffective assistance of counsel, this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different, absent the alleged ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 695 (1984). To prevail, petitioner must satisfy a two-pronged test by establishing that: (1) counsel's performance was deficient; and (2) counsel's deficient performance prejudiced the defense. Id. at 687.
A strong presumption exists that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. To demonstrate that counsel's performance was deficient, the petitioner must show that counsel's representation fell below an objective standard of reasonableness based on the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 688, 690. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694. A reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. If it is easier to dispose of an ineffectiveness claim for lack of the requisite prejudice, that course should be followed. Id. at 697.
The determination of whether a state court erred in denying a claim of ineffective assistance of counsel requires this court to review whether the state court's application of Strickland was objectively unreasonable. See Woodford v. Viscotti, 537 U.S. 19, 24-25 (2002) (". . . it is not enough to convince a federal habeas court that, in its independent judgment, the state court decision applied Strickland incorrectly."); see also Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000) (same). In addition, "counsel cannot be deemed ineffective for failing to raise a meritless claim." Id. at 203 (citing Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154 (1999)). Consequently, it is only the "rare claim" of ineffectiveness that should succeed.See Buehl v. Vaugn, 166 F.3d 163, 169 (3d Cir. 1999).
Williams claims that his trial counsel was ineffective for failing to impeach a witness for the Commonwealth, Eric Harrell, with his pretrial statement to the police. In the instant petition, Williams asserts several instances which he believes are inconsistencies that should have been raised at trial. This claim was first raised on direct appeal in the Superior Court; however, the only inconsistency raised at that time concerned the date Harrell first saw the victim arrive at the drug house where his body was ultimately found. The Superior Court held as follows:
. . . In a statement which he gave to the police, Harrell stated that he had first met the victim at the drug house on June 18, 1988. At trial, however, he testified that he first met the victim at the drug house on June 17, 1988. After reviewing both Harrell's statement to the police and his testimony at trial, we find that they are consistent in all material respects. The mere fact that Harrell cited two different days as to when he met the victim is inconsequential in view of his overall testimony.Commonwealth v. Williams, No. 2639 Philadelphia 1993 (slip op. at 13-14). Having concluded that the difference was not substantial, the Superior Court found that the prior statement was not inconsistent; and therefore, this claim was without merit. Id.
This issue was raised again on appeal from the denial of PCRA relief. In addition, Williams asserted that appellate counsel was ineffective for only raising one of the alleged inconsistencies in Harrell's statement and testimony. The Superior Court held:
Appellant next asserts that prior counsel were ineffective for failing to impeach the Commonwealth's chief witness, Eric Harrell. Appellant raises several "inconsistencies" between Harrell's testimony and a pre-trial statement read into the record that appellant asserts should have been used to impeach Harrell.
The clearest "inconsistency" raised by appellant concerns Harrell's use of different arrival dates of the victim. This allegation of ineffective assistance of counsel concerning this particular inconsistency was raised on appellant's direct appeal. An appellant is not entitled to PCRA review on an issue that has been previously litigated. 42. Pa. C.S.A. § 9543(a)(3). In addition, an issue cannot be relitigated merely because a new or different theory is posited as a basis for reexamining an issue that has already been denied. Commonwealth v. Senk, 437 A.2d 1218, 1220 (1981). We find that appellant's argument is an attempt to revisit the same issue raised on direct appeal. We further find that any new allegations are merely an attack on Harrell's credibility.Commonwealth v. Williams, No. 3489 EDA 2001 (slip op. at 5). The Superior Court also noted that the alleged inconsistencies did not rise to the level of impeachment evidence, and that trial counsel had thoroughly cross-examined Harrell with his prior statements in an effort to impeach his credibility. Id. n. 1.
First, this court finds that the alleged inconsistencies raised for the first time on collateral review are procedurally defaulted and not subject to federal habeas review. These claims were rejected in the state court pursuant to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 749 (1991). Moreover, Williams has failed to demonstrate cause for the default and actual prejudice resulting therefrom or that this court's failure to consider the claims will result in a fundamental miscarriage of justice.Id.; see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (same). To establish a fundamental miscarriage of justice, Williams must demonstrate "actual innocence." Schlup v. Delo, 513 U.S. 298, 324 (1995); Calderon v. Thompson, 523 U.S. 538, 559 (1998) (a claim of actual innocence must be based on "reliable evidence not presented at trial" to show that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence"). Williams does not present evidence sufficient to demonstrate cause for the default and actual prejudice resulting therefrom, or evidence to support a claim of actual innocence. Thus, Williams's PCRA claims are not subject to federal habeas review.
The remainder of this claim, that trial counsel was ineffective for failing to impeach Harrell with his statement concerning the date he first saw the victim at the drug house is without merit. This court agrees with the finding of the state court that the mere fact that Harrell cited two different days as to when he met the victim is inconsequential in view of his overall testimony. Thus, counsel cannot be found ineffective for failing to pursue a meritless claim. Werts, 228 F.3d at 203; Woodford, 537 U.S. at 24-25; Early, 537 U.S. at 11.
Next, Williams claims that trial counsel was ineffective for failing present the testimony of a witness, Doreen Clark, who allegedly would have been able to provide additional testimony to attack Harrell and possibly impeach him. This claim was raised on direct appeal and rejected. According to Williams, Clark would have testified that "sometime between the victim's disappearance and the discovery of his body, she asked Harrell where the victim was and he told her the victim had left the house and never came back." The Superior Court rejected this claim because Williams failed to provide the required affidavits from the potential witness which would substantiate his claim. Commonwealth v. Williams, No. 2639 Philadelphia 1993 (slip op. at 11-12) (citingCommonwealth v. Davis, 554 A.2d 104 (1989) (claim of ineffective assistance of counsel for failure to call a witness will be denied in the absence of affidavits from the potential witness that substantiate appellant's claims). The Superior Court further noted that the absence of Clark's testimony did not prejudice Williams.
Under Pennsylvania law, to prevail on a claim of ineffectiveness for failure to call a witness, Williams was required to establish that: 1) the witness existed; 2) such a witness was available to testify for the defense; 3) counsel knew or should have known of the witness; 4) the witness was willing to testify for the defense; and 5) the absence of the testimony of such witness was so prejudicial as to have denied the petitioner a fair trial. Commonwealth v. Smith, 675 A.3d 1221, 1230 (1996). Clearly, the Superior Court concluded that Williams did not comply with these requirements because he failed to provide the affidavit to support his claim and the absence of the proffered testimony was not so prejudicial as to have denied Williams a fair trial.
Where a habeas petitioner contends that trial counsel was ineffective for failing to call a witness, he must establish that the witness was available to testify at the pertinent proceeding and identify the nature of that witness's testimony. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (petitioner cannot establish ineffective assistance of counsel for failure to call a witness in the absence of specific allegation or offer of evidence that testimony was forthcoming or available upon reasonable investigation); United States v. Dawson, 857 F.2d 923 (3d Cir. 1988) (no relief where defendant did not allege that witnesses were ready to volunteer their testimony or that, if called, they would have testified). The petitioner must also establish that the testimony of the witness would have been beneficial to the defense. See Lewis v. Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990) (prejudice prong of Strickland not established where petitioner did not establish that the testimony of a potential witness, whom counsel failed to interview, would have supported his claim of self-defense).
Williams has failed to offer any evidence sufficient to upset the factual findings of the state courts. In fact, according to an investigator's report prepared for defense counsel in the PCRA proceedings, Ms. Clark wanted nothing to do with this case. Moreover, the investigator's report reiterated that Clark's testimony was limited to her conversation with Harrell during which he told her that Oates had gone to meet Williams.
Accepting the factual findings of the state court, this court must find that Williams cannot establish ineffective assistance of counsel for failing to call Doreen Clark because he is unable to establish that she was willing to testify or that her testimony would have been helpful to the defense. Zettlemoyer, 923 F.2d at 298; Lewis, 915 F.2d at 115. Thus, this court cannot conclude that the state court's rejection of this claim was objectively unreasonable. Werts, 228 F.3d at 203-04.
Finally, Williams asserts that his trial counsel failed to file a motion in limine to preclude Commonwealth witness, Rosenda Alvarez, from testifying at trial. At trial, Ms. Alvarez testified that she was living with Williams at the time of this crime. She testified further to recalling a time when, in the middle of the night, Williams and co-defendant, Aston Gordon, told her they were going to beat somebody at their drug house because he had "messed up some money." This conversation occurred approximately one week before the victim's body was discovered.See N.T. 12/29/89, 31-53. When Alvarez questioned Williams after she saw news reports about the discovery of the body, he told her the body was found at his drug house. Id. at 66-67.
According to Williams, he filed a pro se motion to exclude Ms. Alvarez's testimony because the conversation was about another beating he was involved in, not the victim in this case. The trial court refused to consider Williams's motion because he was represented by counsel. Williams claims further that trial counsel promised to refile the motion, but failed to do so.
This claim was also considered by the Superior Court on direct appeal.
The final issue raised by appellant is that counsel was ineffective for failing to have the statement of Rosenda Alvarez (appellant's girlfriend) excluded at trial. The crux of this argument is that her testimony and statement should have been excluded because she could not identify the person appellant had beaten with a bat, and because she could have been referring to a separate, unrelated incident. After reviewing the testimony and statement of Alvarez, we find it to be sufficiently specific with respect to the incident at issue in this case, such that it was properly admitted. Additionally, the substance of Alvarez's testimony was in large measure corroborated by the testimony of Harrell and Sharon Gilchrist . . . Thus, appellant's final issue is without merit and we affirm the judgment of sentence imposed by the trial court.Commonwealth v. Williams, No. 2639 Philadelphia 1993 (slip op. at 15). Williams attempted to relitigate this claim on collateral review; however, the Superior Court rejected the claim finding that it had been previously litigated. Commonwealth v. Williams, No. 3489 EDA 2001 (slip op. at 6-7) (citing Commonwealth v. Chester, 733 A.2d 1242, 1251 (1999) (appellant cannot obtain post-conviction review of claims previously litigated on appeal by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims).
In the absence of clear and convincing evidence to the contrary, this court accepts the factual findings of the state court, and again must conclude that Williams's claim is without merit. This court cannot conclude that the factual findings of the state court are objectively unreasonable. Nor can this court find that the Superior Court's determination that trial counsel was not ineffective for failing to raise a meritless claim is contrary to, or an unreasonable application of, clearly established federal law. Werts, 228 F.3d at 203.
Accordingly, this court makes the following:
RECOMMENDATION
AND NOW, this day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. IT IS FURTHER RECOMMENDED that there is no probable cause to issue a certificate of appealability.