Opinion
1:15-cv-166
11-15-2021
RALPH LEE YENDELL, Petitioner v. ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, DISTRICT ATTORNEY OF CRAWFORD COUNTY, SUPERINTENDENT SCI FOREST, Respondents
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 9]
RICMARD A. LANZMO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the petition for a writ of habeas corpus, ECF No. 9, be denied and that no certificate of appealability issue.
II. Report ;
A. Background
Before the Court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Ralph Lee Yendell, an inmate at the State Correctional Institution at Forest. ECF No. 9. Petitioner is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Crawford County on March 30, 2010.
The Pennsylvania Superior Court summarized the following relevant procedural history of the criminal case:
The Commonwealth charged Yendell with various sexual crimes arising from an incident that occurred at night on July 11, 2008, at a campground in Woodcock Township. After his first two public defenders withdrew their appearances, a third public defender, Edward Hatheway, Esq., was appointed to represent Yendell. On September 14, 2009, Yendell entered into a negotiated plea agreement, whereby he would plead guilty to unlawful contact with a minor, graded as a third degree felony. In preparation of sentencing, the Pennsylvania Sexual Assessment Board opined that Yendell met the criteria for being designated a sexually violent predator. As a result, Yendell withdrew his guilty plea on December 21, 2009.
On January 11, 2010, Yendell filed a notice of alibi, identifying an alibi witness, Beth Smart. Shortly thereafter, the trial court held a hearing to address several issues raised by Yendell, including his desire to represent himself, the late filing of his alibi notice, and his desire to have DNA testing performed on hair found in the victim's underwear. Prior to the hearing, Attorney Hatheway filed a motion to withdraw from the case. The trial court held a full colloquy and hearing on Yendell's issues with Attorney Hatheway, and ultimately refused to appoint new counsel, but allowed Yendell to proceed pro se, with Attorney Hatheway as standby counsel. Furthermore, the trial court permitted Yendell to call Smart as an alibi witness at trial, despite the late filing of the notice. '
Finally, the trial court granted Yendell the opportunity to have the hair tested for DNA, but informed Yendell that such tests could not be performed in time to proceed on the scheduled trial date, and that trial would have to be postponed for at least a month. Yendell indicated that Smart would not be available at a postponed trial date, due to the fact that she lived out-of state and was partially handicapped. The court ensured Yendell that the court could provide for Smart's transportation to the postponed trial. At this point, Yendell indicated that he did not want Smart to have to make the trip twice, and demanded to go to trial immediately.
The case proceeded to trial, and the jury convicted Yendell of statutory sexual assault, aggravated indecent assault, unlawful contact with a minor, corruption of minors, indecent assault, and two counts of involuntary deviate sexual intercourse. Yendell filed a counseled appeal, and this Court affirmed his judgment of sentence on June 7, 2011. On May 14, 2012, Yendell filed a pro se petition pursuant to the PCRA, and the PCRA court appointed counsel to represent Yendell. Yendell subsequently filed a counseled, amended petition for PCRA relief. The PCRA court dismissed six of the issues raised in Yendell's amended petition without a hearing, and scheduled a hearing on Yendell's final issue. After conducting a hearing on Yendell's final issue, the PCRA court denied relief.ECF No. 9-1 at 5-7; Commonwealth v. Yendell, 108 A.3d 116 (Pa. Super. 2014) (unpublished memorandum). The Superior Court affirmed the order denying Yendell PCRA relief. ECF No. 9-1 at 13. The Pennsylvania Supreme Court denied Yendell's subsequent petition for allowance of appeal. Commonwealth v. Yendell, 114 A.3d 417 (Pa. 2015).
Respondents have filed a response and a brief in support thereof. ECF Nos. 29-30. Yendell has filed a traverse. ECF No. 40. He also filed a memorandum of law in support of his petition. ECF No. 14. This matter is ripe for disposition.
B. Analysis
Yendell sets forth four grounds for relief. Grounds One, Two and Three are claims of ineffective assistance of Attorney Hatheway, Yendell's pre-trial counsel. Ground Four is a claim for ineffective assistance of Yendell's appellate counsel.
1. Ground One
The precise nature of Yendell's claims is difficult to discern. In the operative petition, he entitles Ground One only as “Ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution, ” and lists a statement of facts in support of that claim without ever identifying the claim. ECF No. 9 at 5; ECF No. 9-1 at 35-37. In a Report and Recommendation concerning a motion to dismiss filed by Respondents, the undersigned identified this claim as ineffective assistance of counsel based on pre-trial counsel's failure to adequately inform Yendell of the consequences of withdrawing his guilty plea prior to trial. ECF No. 22 at 2. In his traverse, Yendell clarifies that the failing of pre-trial counsel he seeks to challenge is counsel's failure to review and disclose discovery evidence and advise the defendant appropriately prior to the withdrawal of the plea and/or after counsel became aware of such information at the pretrial hearing but before the court accepted Yendell's waiver of counsel. ECF No. 40 at 6.
Respondents argue that this claim has not been exhausted and is procedurally defaulted. ECF No. 30 at 14-15. As a general matter, a federal district court may not consider the merits of a habeas petition unless the petitioner has “exhausted the remedies available” in state court. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). When a petitioner has failed to fairly present his claim to the state courts, but state procedural rules, such as the time limitations in the PCRA, see 42 Pa.C.S.A. § 9545(b), now bar him from doing so the exhaustion requirement is excused; however, the claims are considered to be procedurally defaulted. See, e.g, Lines v. Larkins, 208 F.3d 153, 162-66 (3d Cir. 2000). A petitioner can overcome procedural default by demonstrating “cause for the default and actual prejudice as a result of the alleged violation of federal law[.]” Coleman v. Thompson, 501 U.S. 722, 750 (1991). In an effort to overcome his procedural default of this claim, Yendell asserts that the failure to raise the claim before the state court was due to PCRA counsel's ineffectiveness. ECF No. 14 at 12-17. The general rule is that, because there is no federal constitutional right to counsel in a PCRA proceeding, a petitioner cannot rely upon PCRA counsel's ineffectiveness to overcome the default of a federal habeas claim. See, e.g, Coleman, 501 U.S. at 752-54. In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court announced a limited, but significant, exception to this rule. Under Martinez, a Pennsylvania prisoner may argue that his PCRA counsel “caused” the default of a claim that trial counsel was ineffective. 566 U.S. at 9; Workman v. Sup't Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019). The holding in Martinez is limited to defaulted ineffective-assistance-of-trial-counsel claims. See, e.g., Davila v. Davis, 137 S.Ct. 2058, 206270 (2017). It does not apply to any other type of claim. Id.
This Court need not resolve the more complex issue of procedural default, however, if it, determines that the ineffectiveness claim has no merit, even under a de novo review. Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (where analysis of procedural default is complex, the court may skip the issue and proceed to the merits). That course is followed here.
Ineffective assistance of counsel claims are governed by the familiar standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance under Strickland, the petitioner has the burden of establishing that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. Strickland also requires that the petitioner demonstrate that he was prejudiced by his trial counsel's alleged deficient performance. This places the burden on the petitioner to establish “that there is a reasonable probability that, but for counsel's unprofessional errors, ” the result of the proceeding “would have been different.” Id. at 694.
Yendell claims that his pre-trial counsel should have reviewed the evidence in question with him and then advised him not to withdraw his guilty plea or to seek reinstatement of the guilty plea on the basis of new information provided by the evidence. ECF No. 40 at 9. The evidence to which Yendell refers is “a third statement of a potential primary corroborating witness [] made to authorities on or about August 28, 2009.” ECF No. 9-1 at 35. He explains the significance of this statement as follows:
Because Yendell does not dispute that his pre-trial counsel did indeed advise him not to withdraw the guilty plea, his claim concerns only the basis for that advice. See ECF no. 9-1 at 35.
In the particular circumstances, the primary corroborating witness first claims that nothing had occurred between the alleged victim and [Yendell]. In the witness' second statement, the witness provided a wholly different version in which she essentially maintained that she, as a disinterested third party, observed the incident but did not participate nor act upon what she was observing. In yet her third statement, the corroborating-witness presented a different picture in which she acted as a participant ... albeit unwillingly. Colored in a version in which the corroborating witness was not just a disinterested third party observing the incident, it cannot be discounted that the jury might have been more easily persuaded to believe []testimony relating to what took place even if they did not the believe the witness' version of how it happened. When faced with a more difficult task of undermining the prosecution's case by challenging the v[e]racity of the witness' testimony, [Yendell's] assessment of the decision to exercise the right to plead guilty would have been critically important in deciding matter governing his own fate.ECF No. 14 at 11-12.
Yendell asserts: “the bottom line is that [Yendell] would have maintained his ‘best interest' plea, or attempted to reclaim it, when confronted with the more arduous task of challenging the credibility of the witness, if counsel had reviewed and disclosed the statement and renewed his advice to maintain or reclaim the plea based upon the new information contained in the evidence forwarded in Discovery.” ECF No. 40 at 8-9.
Setting aside the question of the merits of Yendell's assessment of the significance of this evidence, Yendell asserts prejudice from counsel's inaction on the basis that had Yendell known of this evidence, he would have acted to keep or reinstate his guilty plea. However, it is undisputed that Yendell did know of this evidence before trial, while acting as his own counsel, and he took no action to reinstate his guilty plea. ECF No. 40 at 9. Yendell's inaction belies the basis for the prejudice prong of the ineffectiveness claim. Thus, this claim does not warrant habeas relief. '
2. Ground Two
In Ground Two, Yendell asserts that his pre-trial counsel was ineffective because he abandoned Yendell during the colloquy for waiver of counsel. Specifically, Yendell claims that counsel failed to make sure that Yendell understood the information given by the court concerning' Yendell's ability to later challenge counsel's ineffective assistance in the role of standby counsel.
ECF No. 9-1 at 38.
The Pennsylvania Superior Court addressed this claim as follows:
Yendell's first issue on appeal concerns the six claims that the PCRA court dismissed without a hearing. Each of these claims involves a claim that Attorney Hatheway provided ineffective assistance of counsel to Yendell. We presume that counsel was effective and an appellant bears the burden of proving otherwise. See Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (Pa. 2008).
To prevail on his ineffectiveness claims, Appellant must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) Appellant suffered prejudice because of counsel's action or inaction.
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 260 (Pa. 2011) (citations omitted). “A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim." Commonwealth v. Morrison, 2005 PA Super 222, 878 A.2d 102, 105 (Pa. Super. 2005) (citation omitted). Counsel cannot be deemed ineffective for failing to raise a meritless claim. See Commonwealth v. Fears, 624 Pa. 446, 86 A.3d 795, 803 (Pa. 2014). ‘
The second claim dismissed by the PCRA court without a hearing is that Yendell's waiver of counsel was involuntary because Attorney Hatheway failed to advise him that he could not later raise the issue of the ineffectiveness of standby counsel. Yendell, however, does not provide any authority for this argument; he merely cites to the PCRA for the proposition that Attorney Hatheway could not have had a legitimate strategy for not so advising him. Yendell provides no authority whatsoever for the underlying claim that his waiver of counsel was involuntary. As such, we conclude that this claim is waived for purposes of appeal.Commonwealth v. Yendell, 108 A.3d 116 (Pa. Super. 2014); ECF No. 9-1 at 8, 10.
Because Yendell failed to raise this claim in state court in compliance with Pennsylvania's procedural rules, it is procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). In an effort to overcome this procedural default of this claim, Yendell asserts that the failure to raise the claim before the state court was due to PCRA counsel's ineffectiveness. ECF No. 14 at 18-24.
As with the previous claim, this Court need not resolve the more complex issue of procedural default because, even under a de novo review, the ineffectiveness claim has no merit. Yendell's claim is based on counsel's silence during the waiver-of-counsel colloquy; however, Yendell does not identify any prejudice arising from that silence. Yendell makes clear that he is not challenging the validity of the waiver of counsel. ECF No. 40 at 13. Because Yendell concedes that the waiver was valid, i.e., knowing, voluntary and intelligent, there could be no possible prejudice from counsel's alleged ineffectiveness during the waiver colloquy. This claim should be denied.
3. Ground Three
In Ground Three, Yendell argues that pre-trial counsel was ineffective for failing to pursue a defense involving challenging the cause of the victim's abnormal results from a post-assault medical examination through; (1) the admission of evidence protected by Pennsylvania's Rape Shield Law; and (2) expert testimony. ECF No. 9-1 at 41-44.
Respondents argue that this claim has not been exhausted and is procedurally defaulted. ECF No. 30 at 16. In an effort to overcome his procedural default of this claim, Yendell asserts that the failure to raise the claim before the state court was due to PCRA counsel's ineffectiveness. ECF No. 14 at 25-31. As with the previous claims, this Court need not resolve the more complex issue of procedural default because, even under a de novo review, the ineffectiveness claim has no merit.
Yendell argues, “investigation and trial preparation would have transformed a relatively weak, or precluded defense, into a far stronger and more powerful defense, within which the factfinder would have had reason to have reasonable doubt of the defendant's guilt with the remaining charges.” ECF No. 40 at 21. However, as Yendell concedes, he “waived his right to counsel, and nobody prevented [him] from presenting such a defense when he represented himself....” ECF No. 14 at 29. Because, by his own admission, Yendell could have pursued this defense himself, pre-trial counsel's failure to do so was not prejudicial. This claim should be denied.
4. Ground Four .
In Ground Four, Yendell asserts the ineffective assistance of his appellate counsel in failing to raise on direct appeal the validity of Yendell's waiver of counsel. ECF No. 9 at 10-11. Respondents argue that this claim was not exhausted in state court. ECF No. 39 ¶ 49. Yendell concedes the failure to exhaust but argues that the failure to raise this claim before the state courts was due to PCRA counsel's ineffectiveness. ECF No. 14 at 31-33.
As set forth above, the Martinez exception to the general rule that a petitioner cannot rely upon PCRA counsel's ineffectiveness to overcome the default of a federal habeas claim is limited to defaulted ineffective-assistance-of-trial-counsel claims. See, e.g, Davila, 137 S.Ct. at 206270. It does not apply to any other type of claim, including ineffective assistance of appellate counsel. Id.
Yendell failed to fairly present his claim to the state courts and is now barred from doing so due to the time limitations set forth in the PCRA. See 42 Pa.C.S.A. § 9545(b). Accordingly, the exhaustion requirement is excused; however, the claim is procedurally defaulted. See, e.g., Lines, 208 F.3d at 162-66. Because Yendell has failed to overcome this procedural default, the claim should be denied.
C. Certificate of Appealability
The Antiterrorism and Effective Death Penalty Act of 1996 codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying those standards here, jurists of reason would not find it debatable whether Yendell's claims should be denied for the reasons given herein. Accordingly, no certificate of appealability should issue.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d . 187 (3d Cir. 2007).