Opinion
Civil Action No. 04-1269.
October 15, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Tierre Davis ("Petitioner"), pursuant to 28 U.S.C. section 2254. The Petitioner is currently incarcerated in the State Correctional Institution, Frackville. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
I. FACTS AND PROCEDURAL HISTORY.
This information is taken from the Petition for Writ of Habeas Corpus, the Response, and the state court record.
On March 25, 1999, following a jury trial before the Honorable Robert L. Steinberg in the Court of Common Pleas of Lehigh County, Petitioner was found guilty of involuntary deviate sexual intercourse, aggravated indecent assault, aggravated assault, simple assault, recklessly endangering another person, and endangering the welfare of a child, all stemming from attacks on his three-year old daughter. Petitioner was sentenced to a term of twenty-one to forty-two years' imprisonment. His trial counsel filed post-trial motions and also a motion to withdraw. Judge Steinberg granted the motion to withdraw, and appointed new counsel to assist Petitioner with the post-trial motions, including the ineffective assistance of counsel claims against his trial counsel. Petitioner's post-trial motions were denied.
On October 27, 1999, Petitioner filed a direct appeal with the Pennsylvania Superior Court, and on January 26, 2001, the Superior Court affirmed the judgments of sentence. See Commonwealth v. Davis, No. 3269 EDA 1999 (Pa.Super. 2001).
On October 30, 2001, and December 7, 2001, Petitioner filedpro se petitions pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"). See 42 Pa. C.S.A. § 9541. Counsel was appointed and filed an amended petition alleging the ineffective assistance of trial counsel. On February 28, 2002, the PCRA court entered an order indicating its intent to dismiss the petition pursuant to PA. R. CRIM. P. 905(b) unless Petitioner provided specifics regarding his argument that trial counsel was ineffective.
Petitioner's PCRA counsel sent him a letter on March 4, 2002, advising him of the court's intent to dismiss his petition, and attaching a copy of the court's letter. Counsel then filed a response to the court's inquiry, indicating that all issues were either previously litigated or frivolous. The PCRA court dismissed the PCRA petition on March 22, 2002. On June 20, 2002, PCRA counsel sent Petitioner a letter advising him of the dismissal of his petition, with a copy of the court's order attached to that letter.
On May 24, 2002, between the time that the PCRA court dismissed the PCRA petition and counsel notified Petitioner of the dismissal, Petitioner filed a pro se motion for appointment of new PCRA counsel pursuant to PA. R. CRIM. P. 904(A), (C), and (D). The PCRA court denied the motion for new counsel on May 30, 2002, because no appeal had been filed from the order dismissing the case and more than thirty days had elapsed since that order was issued. Petitioner appealed from that order, but then asked that the appeal be discontinued. PCRA counsel filed a motion to withdraw on August 14, 2002, which the court granted.
On October 4, 2002, Petitioner filed a pro se notice of appeal with the Pennsylvania Superior Court, appealing from the PCRA court's March 22, 2002 order dismissing his PCRA petition. Petitioner requested the appointment of a fourth attorney in his October 30, 2002 Statement of Matters Complained of on Appeal, and raised two issues before the Superior Court: (1) whether the instant appeal has been timely filed when neither the trial court or defense counsel ever advise[d] the appellant of his right to appeal or the time period within which to appeal the denial of his petition for post conviction collateral relief; and (2) whether the appeal should be remanded for the appointment of counsel and whether the court should retain jurisdiction until after new counsel was appointed and filed a brief on behalf of the appellant. On September 10, 2003, the Superior Court quashed the appeal as untimely.
On April 16, 2004, Petitioner filed the instant pro se Petition containing the following seven claims: (1) whether the Petitioner was deprived of his Fourteenth Amendment notice of his right to appeal the dismissal of his PCRA; (2) whether the Petitioner was deprived of his Fourteenth Amendment right to counsel for the litigation of his PCRA for the time period within which he could, or should, have appealed or for the litigation of his appeal from the dismissal of his PCRA; (3) whether the Petitioner was deprived of his Sixth Amendment right to present a defense and/or of his Fourteenth Amendment right to due process of law when the Petitioner was tried without having the opportunity to present exculpatory DNA evidence which would have conclusively shown that he was actually innocent of the crimes charged, or alternatively, whether Petitioner was deprived of his Sixth Amendment right to the effective assistance of all prior counsel for their failure to properly investigate and/or present exculpatory evidence at trial; (4) trial counsel was ineffective for relying on the Commonwealth's investigation of the case as the basis of the defense case and thereby conducted ineffective cross-examinations of the state witnesses and inadequately and improperly relied on the Commonwealth's expert witnesses' contradictions as his only defense strategy; (5) trial counsel was ineffective for not subpoenaing defense witnesses that were credible and relevant to the defense; (6) trial counsel was ineffective for failing to hire an expert witness to aid the defense; and (7) there was insufficient evidence to support Petitioner's conviction for aggravated indecent assault and involuntary deviate sexual intercourse. Respondents contend that these claims are meritless and should be denied.
II. DISCUSSION.
A. Whether Petitioner's Aggravated Indecent Assault And Involuntary Deviate Sexual Intercourse Convictions Were Supported By Sufficient Evidence.
Petitioner's last claim in this Petition is that the evidence against him was insufficient to support his aggravated indecent assault ("AIA") and Involuntary Deviate Sexual Intercourse ("IDSI") convictions. Petitioner presented this identical claim to the PCRA court and the Superior Court. Both Judge Steinberg, who was the trial and PCRA judge, and the Superior Court found the evidence presented at trial was sufficient to support Petitioner's AIA and IDSI convictions. Judge Steinberg wrote:
We first address the defendant's insufficiency claim. A jury found the defendant guilty of, inter alia, IDSI, as defined at 18 Pa. C.S.A. § 3123(a)(6), and AIA, as defined at 18 Pa. C.S.A. § 3125(7). Under the Crimes Code, a person commits IDSI when "he or she engages in deviate sexual intercourse with a complainant . . . who is less than 13 years of age." Deviate sexual intercourse is "[s]exual intercourse per os or per anus between human beings" and "penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical, hygienic, or law enforcement procedures." 18 Pa. C.S.A. § 3101. Likewise, a person commits AIA when he or she "engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic, or law enforcement procedures," and "the complainant is less than 13 years of age."
We note initially that the parties did not dispute that the defendant's daughter, Tierra, was less than thirteen (13) years of age at the time of the alleged incident. In order to establish the remaining elements of the sex offenses, the Commonwealth presented the testimony of medical experts, Drs. Scott Brenner and Randolph Cordle, Tierra's biological mother, Thailan Nguyen, and the hearsay testimony of Tierra through her foster mother, Deborah Arnold.
Dr. Brenner, who was qualified as an expert in the field of pediatrics and who had some experience with the physical effects of child sexual abuse during his residency training, testified that he examined Tierra's genital area with the help of Dr. Cordle. Dr. Brenner called upon Dr. Cordle for assistance because he had more experience with sexual assaults. Dr. Cordle, a specialist in pediatric emergency medicine, emergency medicine and pediatrics in general, testified to his extensive experience in pediatrics and emergency room medicine, particularly in treating children who were the victims of physical and sexual abuse. As a result of his education and experience, Dr. Cordle was qualified as an expert in pediatrics and in the subspecialty of child abuse examinations.
. . . .
Based upon the examination, Dr. Brenner opined that blunt trauma had caused the injuries to the child's vagina and anus, but he could not answer conclusively whether anything had, in fact, penetrated the vagina. He also opined that the genital injuries were consistent in time with the other physical injuries in that they occurred within 24 to 48 hours of Tierra being brought to the hospital.
Based upon the same examination, Dr. Cordle testified that Tierra's vaginal and anal injuries were indicative of a pattern which led him to the conclusion that the injuries to those areas were the result of the penetration of "some object" therein. He further opined that, although he could not tell the exact size or shape of the object that penetrated the vagina, "it [was] something larger than a three year old's finger and something that had to occur with some force." As for the object which caused the injuries to Tierra's anus, Dr. Cordle concluded: "I can't tell you what object, how big the object was, but something definitely went through the anus and caused the bruising." Dr. Cordle discounted the possibility that such injuries could have been caused by being struck repeatedly with an open hand, fist or belt, or from "vigorous wiping." Finally, with respect to timing, Dr. Cordle stated that the injuries to the vagina and anus occurred sometime within twelve hours of Tierra being brought to the hospital, and that these injuries were consistent in time with her other injuries.
Thailan Nguyen, Tierra's biological mother, described the defendant's relationship with his daughter at or around the time of the this [sic] incident as "distant," "unattached," and "disassociated" which, in turn, caused the defendant, at times, to become angry with Tierra. Ms. Nguyen also testified that, during the same time, the defendant's disciplining of Tierra progressed from spankings to belt whippings, and that such "episodes" became most severe approximately one or two weeks prior to the occurrence of the alleged incident. She also indicated that there was a lot of stress, depression and problems occurring in the household at the time of the incident. On November 29th, 1997, the day before Tierra was taken to the hospital, Ms. Nguyen testified that the defendant hit Tierra several times with an open hand and a belt which caused her to urinate and defecate on herself. Ms. Nguyen stated that the defendant became even more angry and took Tierra into the bathroom where he remained alone with her for approximately three to five minutes — apparently to clean her. Then, the defendant struck Tierra several more times and was again alone with her for a few minutes before joining Ms. Nguyen for a movie in another part of the house. Thereafter, no one checked on Tierra until late the following morning when the defendant discovered her "lifeless" body.
Finally, the Commonwealth presented the testimony of Deborah Arnold, who became Tierra's foster mother after this incident. Ms. Arnold testified that while in her care, Tierra began to verbalize about the cause of her injuries. Specifically, Tierra told Ms. Arnold, inter alia, that: "Daddy did this to me," "Daddy put his pee pee in [my] pee pee and mouth," "Daddy put his pee pee in [my] sue sue," and "Daddy put his hand in [my] sue sue."
Based upon this testimony, we find no merit to the defendant's contention that there was insufficient evidence to sustain the charges of IDSI and AIA. The evidence, when viewed in the light most favorable to the Commonwealth, established that Tierra's genital injuries occurred at a time consistent with her other injuries and were caused by the penetration of a body part or other object, that the defendant had access to Tierra and was alone with her during the time when the genital injuries were believed to have occurred, and that, according to Tierra herself, it was the defendant who had sexually abused her. This evidence, if believed by the jury, was sufficient to sustain the charges beyond a reasonable doubt.Commonwealth v. Davis, Nos. 1998/3562, 1998/206, Lehigh County Court of Common Pleas, 11/30/99, pp. 12-16.
In its decision affirming the judgments of sentence, the Superior Court first set forth the Pennsylvania Crimes Code definitions of AIA and IDSI, and then stated:
Davis argues that the Commonwealth did not prove beyond a reasonable doubt that he was either the perpetrator of these acts or that these acts had actually occurred. Brief for Appellant at 18. He points out that the Commonwealth's expert witnesses, Drs. Cordle and Brenner, had substantially differing opinions as to whether T.D.'s injuries had been brought about by blunt trauma or by some penetration of the anus or vagina. Id. at 19. Davis also argues that the testimony of T.D.'s foster mother, Deborah Arnold, was not only self-serving, but also failed to provide sufficient evidence in order to convict him based on the above sexual charges. Id. at 24, 26. We disagree.
The trial court thoroughly addressed the legal sufficiency of the evidence in its Opinion regarding its denial of Davis's post-trial motions and we are satisfied that it made a complete and thorough exploration of this issue. Accordingly, we adopt the trial court's explanation addressing Davis's sufficiency of the evidence issue. Opinion, 11/30/99, at 10-17.Commonwealth v. Davis, No. 3269 EDA 1999, Pa. Super., 1/26/01, p. 5. Petitioner nonetheless argues in this Petition that the Commonwealth did not prove the necessary elements of the charges beyond a reasonable doubt, did not prove that Petitioner was the perpetrator of these alleged acts against the victim, did not show beyond a reasonable doubt a causation between the alleged acts and Petitioner as the perpetrator of these acts upon the victim, and did not prove all the necessary elements to support his convictions. Although Petitioner alleges that there was insufficient evidence to convict him of these charges, he fails to show that the evidence against him was insufficient to support his convictions since the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
This Court interprets Petitioner's use of the word "casualty" to mean causation.
Petitioner next contends that the two expert doctors who testified for the prosecution contradicted each other's conclusions of how the victim's injuries occurred, and both clearly agreed there was "no penile penetration." Petitioner claims that one doctor agreed that the victim's injuries occurred from blunt trauma, and the second doctor agreed that there was no penile penetration, but that the injuries occurred with an unknown object which was the size of a three and one-half year old child's finger, but gave no opinion identifying this unknown object. Petitioner also states that: (1) a rape kit was obtained and there were no significant findings and no evidence derived from the rape kit; (2) both doctors' timing of the victim's injuries were contradictory; and (3) the victim's mother, when she was testifying for the Commonwealth, stated that nothing of a sexual nature happened. Therefore, Petitioner contends that the state court's decision was contrary to the clearly established case law of Tibbs v. Florida, 457 U.S. 31 (1982).
Petitioner does not elaborate on how the trial court decision did not follow Tibbs. In that case, the United States Supreme Court held that the Double Jeopardy Clause does not prevent an appellate court from granting a convicted defendant an opportunity to seek acquittal through a new trial. Tibbs v. Florida, 457 U.S. 31, 46 (1982).
The trial court examined this identical issue of an alleged conflict in medical evidence. The court stated:
The defendant's allegation that the conflicting and contradictory nature of the experts' testimony renders the evidence defective is equally without merit. Both doctors testified that trauma caused the genital injuries and that they were consistent in time with the other injuries. Their testimony differed, however, with regard to the span of time within which the injuries could have occurred, whether or not there was penetration, and the type of trauma that caused the injuries. Specifically, Dr. Cordle believed the injuries happened more recently than Dr. Brenner, and on the issue of penetration, Dr. Brenner did not testify that penetration had not occurred, but only that he could not answer conclusively one way or the other whether it had. Dr. Brenner also opined that the genital injuries could have been caused by a blow to the area — not that they had been.
A careful analysis of this testimony, then, does not reveal it to be so conflicting or contradictory that the jury would be left to speculation. See Commonwealth v. Earnest, 386 Pa. Super. 461, 563 A.2d 158 (1989) (differences in expert opinions which do not exculpate the defendant did not require jury to guess between contradictory evidence). Apparently the jury, as it was within their province to do, assigned more weight to Dr. Cordle's opinions on this issue. That may be because, even according to Dr. Brenner, Dr. Cordle had more extensive experience in the area of child sexual abuse.
Nor do we believe that the verdict is so contrary to the weight of the evidence, as described above, that it would shock one's sense of justice and require a new trial. For all the foregoing reasons, we deny the defendant's motion for arrest of judgment, and in the alternative, his motion for new trial.Commonwealth v. Davis, Nos. 1998/3562, 1998/206, Lehigh County Court of Common Pleas, 11/30/99, pp. 16-17.
Credibility determinations by the trial court are given "presumptive weight." Miller v. Fenton, 474 U.S. 104, 115 (1985). Petitioner fails to make a showing that the evidence against him was insufficient to support his AIA and IDSI convictions. The relevant question which Petitioner fails to answer is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence in the light most favorable to the prosecution. For the foregoing reasons, Petitioner has not met this standard. Therefore, this claim should be dismissed.
B. Whether Trial Counsel Was Ineffective For Failing to Hire an Expert Witness to Aid the Defense.
Petitioner's sixth claim before this Court is that his trial counsel was ineffective for failing to hire an expert witness to aid in his defense. Petitioner contends that his trial counsel based his defense on two Commonwealth expert witnesses who contradicted each other, and their testimony was insufficient to support Petitioner's conviction. According to Petitioner, a defense witness could have rebutted their contradictions in his favor, yet his trial counsel called no such witness. For support, Petitioner paraphrases Pennsylvania Superior Court Judge Cavanaugh's dissenting opinion by stating "trial counsel's ineffective for failing to seek expert medical opinion to render an opinion on these allege acts," and "counsel's decision to rely upon the contradictions between Commonwealth's expert witnesses, is simply not a course of action calculated to serve client's interest, and alleged charges were based upon circumstantial evidence." Thus, Petitioner argues that Judge Cavanaugh's dissenting opinion should be followed by this Court, his judgment of sentence should be reversed, and he should be granted a new trial.
The trial court examined this issue and held that:
Likewise, defendant's hindsight contention that counsel should have retained experts to refute the Commonwealth's medical experts on the cause and timing of Tierra's sexual injuries also lacks merit. Courts are not to second-guess trial counsel's strategic decisions and counsel will not be deemed ineffective for pursuing a particular strategy so long as the strategy has a reasonable basis. Ellis at 961 (citing Commonwealth v. Cheatham, 419 Pa. Super. 603, 615 A.2d 802 (1992)). As stated by Justice Saylor of our supreme court:
A claim of ineffective assistance generally [cannot] succeed through comparing, by hindsight, the trial strategy employed with alternatives not pursued. A finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.
Commonwealth v. Roy L. Williams, 1999 WL 357331, **18 (Pa. 1999) (citations omitted). Additionally, counsel will not be deemed ineffective unless the defendant demonstrates that favorable expert evidence was available and identifies the witness who would have been willing to offer such evidence. Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143, 151 (1998). The "[m]issing witness must be called at the evidentiary hearing to demonstrate [his or her] alleged usefulness at the trial." Commonweath v. Whitney, 550 Pa. 618, 708 A.2d 471, 477 (1998).
Counsel explained that it was his conscious strategy to forego presenting contrary expert testimony because he was aware of the content of the Commonwealth's experts' testimony and believed that the conflicts and contradictions therein would expose the weakness of the Commonwealth's case and create reasonable doubt in the jurors' minds. We cannot conclude that counsel's strategy lacked a reasonable basis because the defendant has not demonstrated that his proposed alternative strategy would have "offered a potential for success substantially greater than the course actually pursued." Roy L. Williams, supra. Nor has the defendant shown the existence of or presented any expert witness who would have been willing and able to testify favorably on his behalf. Without this requisite proof, counsel cannot be deemed ineffective.
Nor will counsel be deemed ineffective for failing to introduce expert testimony "if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony." Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 253 (1998). In this case, trial counsel did expose inconsistencies in the testimony of Drs. Brenner and Cordle on cross-examination as he anticipated. Just because the jury apparently embraced Dr. Cordle's testimony over that of Dr. Brenner's does not indicate that counsel was ineffective. Certainly, the jury could have found such inconsistencies significant and then their verdict on the sexual offenses would have been different. Therefore, the defendant is not entitled to relief on this claim. We note that the defendant himself believed these inconsistencies to be so great that he advanced an argument that such evidence was insufficient to sustain the charges of IDSI and AIA, or alternatively that the verdict thereon was against the weight of the evidence.Commonwealth v. Davis, Nos. 1998/3562, 1998/206, Lehigh County Court of Common Pleas, 11/30/99, pp. 26-28.
A review of the Superior Court decision reveals that the panel decided, 2-1, that Petitioner's trial counsel was not ineffective for not hiring an independent medical expert to aid in his defense. The Superior Court set forth the three-pronged test for ineffective assistance of counsel and then reviewed the facts of this case:
In the instant case, Davis argues that trial counsel was ineffective by failing to retain "medical expert(s)" to examine T.D.'s alleged sexual injuries in the aid of his defense. Brief for Appellant at 27. Davis argues that the critical importance of the medical expert was to obtain an independent opinion regarding the cause and timing of T.D.'s sexual injuries. Id. Davis claims that it was critical to his defense to have a medical expert determine the cause of the injuries in order to show that the cause of the sexual injuries could have been factors that would not have risen to the level of Involuntary Deviate Sexual Intercourse or Aggravated Sexual Assault. Id. at 28. However, Davis failed to present any evidence that had his trial counsel retained a medical expert to examine T.D. and testify as to his or her findings, his or her findings would have been different, and therefore, the outcome of the trial would have been different. Moreover, Davis fails even to articulate what such testimony would have shown. "When a defendant claims that expert testimony should have been introduced at trial, the defendant must articulate what evidence was available and identify the witness who was willing to offer such evidence." Commonwealth v. Gwynn, 723 A.2d 143, 151 (Pa. 1998). Unless there is an identified medical witness who at the time of trial was willing to offer testimony favorable to Davis's defense, his trial counsel was not ineffective for failing to present such expert testimony. See id.Commonwealth v. Davis, No. 3269 EDA 1999, Pa. Super., 1/26/01, p. 7. Thus, as the PCRA court held and the Superior Court affirmed, counsel was not ineffective for failing to present additional medical testimony in order to refute the testimony of the two treating doctors who were called by the prosecution. Because this state court holding is not violative of federal case law, this claim should be dismissed.
C. Whether Petitioner was Deprived of His Fourteenth Amendment Right to Notice of His Right to Appeal the Dismissal of His PCRA Petition and His Right to Counsel to Litigate His PCRA Petition and Appeal.
Petitioner's first and second claims in this Petition are that he was deprived of his Fourteenth Amendment notice of his right to appeal the dismissal of his PCRA, and that he was deprived of his Fourteenth Amendment right to counsel for the litigation of his PCRA for the time period within which he could or should have appealed or for the litigation of his appeal from the dismissal of his PCRA. These issues were examined and rejected by the Pennsylvania Superior Court in its review of the denial of Petitioner's PCRA petition:
The record reflects that the trial court sent Davis a copy of the March 22, 2002 order denying his second Amended Petition, but that it was sent to the wrong inmate. T.C.O., 12/13/02, at 4, fn. 3. Thus, we cannot conclude that the court gave legally sufficient notice of when Davis's period for filing his appeal commenced. Davis relies upon Commonwealth v. Meehan, for his contention that the period for filing his appeal did not commence because he received no notice. 628 A.2d 1151, 1155 (Pa.Super. 1993). However Meehan is distinguishable from the instant matter. This Court stated in Meehan that where the appellant has filed previous pro se appeals and was aware of his right to appeal and of the requirements for perfecting a timely appeal, this Court should attempt to determine whether the PCRA court's failure to provide notice actually affected his ability to file his appeal timely. See id. We also note that the appellant in Meehan, filed his appeal 5 days after the filing deadline, not 97 days as in the instant case. See id. ; see also pro se Notice of Appeal, 10/4/02. This Court premised its decision to consider the merits of the appeal in Meehan on the fact that it could not conclude that the court's failure to notify the appellant did not affect the appellant's tardiness in filing. See id. This Court considered all the factors in concert, not just the fact that the court failed to comply with the notice requirement. See id. In the instant case, we conclude that Davis had appealed to this Court before and knew of his right of appeal as evidenced by the fact that he perfected a timely appeal to this Court on October 27, 1999 from the October 8, 1999 order denying his post-trial motions. See Order, 10/8/99; see also pro se Notice of Appeal, 10/27/99. We cannot conclude that Davis was hindered from appealing in a timely fashion once he learned his petition was denied, despite PCRA court's error. See Meehan, 628 A.2d at 1155. Therefore, Davis's reliance on Meehan is misguided.
Second, Davis argues that his appeal should be considered timely because counsel failed to advise him of his right to appeal. Brief for Appellant at 11. We conclude that Davis's contention lacks merit. Davis filed a Notice of Appeal on July 2, 2002, appealing from the court's May 30, 2002 denial of his Motion for Appointment of New Post Conviction Relief counsel. See Notice of Appeal, 7/2/02. In the order denying Davis's Motion for Appointment of New Post Conviction Relief counsel, the court referenced its March 22, 2002 dismissal of Davis's PCRA petition. See Order of Court, 5/30/02.
The record illustrates that while the court failed to inform Davis of its dismissal via certified mail, the court did alert Davis to the fact that his petition was denied in its May 30, 2002 Order. See Order of Court, 5/30/02. Based upon his July 2, 2002 Notice of Appeal from the May 30, 2002 order, which referenced the March 22, 2002 order, we conclude that Davis was on notice of the court's March 22, 2002 order dismissing his PCRA petition. We recognize that a trial court error prevented Davis's learning of the dismissal of his petition in a timely manner. What is not clear, however, is why Davis failed to file his appeal until October 4, 2002 — 94 days after the July 2, 2002 date we consider Davis to have received notice. See pro se Notice of Appeal, 10/01/02. The filing delay through July 2, 2002 cannot be assessed to Davis because the court did not send notice of its March 22, 2002 order by certified mail. See T.C.O., 12/13/02, at 4, fn. 3. Davis had 30 days from the entry of the court's order denying his petition to appeal to this Court. See Pa.R.A.P. 903(a). But, even if one considers May 30, 2002 as the date from which the 30 day appeal period started to run, Davis had until June 29, 2002 to file his appeal. Davis filed his appeal on October 4, 2002, 127 days after the entry of the order from which he was appealing. Notice of Appeal, 10/01/02. We conclude that despite the court's error, Davis had notice of the court's dismissal and the commencement of his appeal period. We further conclude that the court's failure to advise Davis did not prevent his perfecting a timely appeal. Thus, we are precluded from reviewing it. See Pa.R.A.P. 903(a); see also Commonwealth v. Strong, 825 A.2d 658, 667 (Pa.Super. 2003). Accordingly, we quash Davis's appeal.Commonwealth v. Davis, No. 3084 EDA 2002, Pa. Super., 9/10/03, pp. 5-7.
State courts are not required to provide state collateral review. Pennsylvania v. Finley, 481 U.S. 551, 556-557 (1987). Therefore, a claim that the state PCRA court erred in its handling of the state-created right to collateral review does not "arise under the Constitution, laws or treaties of the United States" and therefore provides no basis for federal habeas review or relief. See 28 U.S.C. § 2254(a) (stating Petitioner must show that he is in custody in violation of the Constitution, laws, or treaties of the United States). Further, Petitioner was not entitled to counsel at the PCRA level.
A claim for ineffectiveness of PCRA counsel does not present a cognizable claim on federal habeas review. See Id.; 28 U.S.C. § 2254(i) (stating ineffectiveness of state or federal collateral counsel is not ground for relief); Coleman v. Thompson, 501 U.S. 722, 756-757 (1991) (stating federal habeas petitioner has no right to counsel beyond his first appeal in pursuing state discretionary or collateral review); Werts v. Vaughn, 228 F.3d 178, 189 n. 4 (3d Cir. 2000), cert. denied, 532 U.S. 980 (2001) (citation omitted) (stating no Sixth Amendment violation for ineffective assistance of counsel in state collateral proceedings). Thus, Petitioner's first two claims in this Petition, that he was denied both his Fourteenth Amendment right to appeal the dismissal of his PCRA petition and his right to counsel to litigate his PCRA petition and his PCRA appeal, should be denied.
D. Whether Petitioner Was Deprived of His Sixth Amendment Right To Present a Defense and His Fourteenth Amendment Due Process Rights When He Was Tried Without Presenting Exculpatory DNA Evidence Showing He Was Actually Innocent, Or Alternatively, Whether Petitioner Was Deprived of his Sixth Amendment Right To Effective Assistance of All Prior Counsel For Failure To Properly Investigate And/Or Present Exculpatory Evidence at Trial.
Respondents note that this claim was never before presented in the state court and Petitioner previously limited a similar argument to allegations that trial counsel was ineffective for failing to retain medical experts with regard to the victim's sexual injuries. Respondents therefore claim that Petitioner has waived this argument because he did not raise it in any prior state court proceedings.
Because Petitioner never presented this claim in any state court, it is unexhausted. This claim is also procedurally defaulted because it would be futile for Petitioner to seek review in the state court since any such petition for relief would now likely be denied as untimely. In order to exhaust a claim, Petitioner must present his claim for every level of state court review. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Conner, 404 U.S. 270, 275 (1971)). Petitioner precluded the state courts from meaningful review of his claim because he did not present it to every level of the state courts. Thus, the instant claim is defaulted. See Coleman, 501 U.S. at 731-732.
Federal courts may review a claim, notwithstanding its procedural default, only where the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Petitioner does not allege cause and prejudice, therefore the procedural defaults cannot be excused on this basis. Teague v. Lane, 489 U.S. 288, 298 (1989) (stating that petitioner's failure to allege cause for his default precluded federal habeas review of defaulted claim).
Counsel's ineffectiveness cannot provide cause for the default.See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citingMurray v. Carrier, 477 U.S. 478, 488-489 (1986) (stating in order to constitute cause, counsel's ineffectiveness must rise to the level of a constitutional violation); Pennsylvania v. Finley, 481 U.S. 551 (1987) (stating the Sixth Amendment right to counsel does not extend to counsel in state collateral proceedings); 28 U.S.C. § 2254(i) (same)).
Similarly, Petitioner fails to establish that a failure to consider the claim will result in a fundamental miscarriage of justice. This exception requires that a petitioner supplement his claims with "a colorable showing of factual innocence."McCleskey v. Zant, 499 U.S. 467, 495 (1991) (citing Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). The Supreme Court has held that the burden is on the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). That is, "in light of all the evidence, . . . it is more likely than not that no reasonable juror would have convicted him." Id. at 327-328. Because Petitioner fails to support any assertion of innocence with any evidentiary support, such a bald assertion will not suffice to excuse Petitioner's default, and this claim must be denied. See Hull v. Freeman, 991 F.2d 86, 91 n. 3 (3d Cir. 1993).
E. Whether Trial Counsel Was Ineffective.
The final claims presented by Petitioner have never been presented at the state court level. Petitioner claims that trial counsel was ineffective for two reasons: (1) counsel improperly relied on the Commonwealth's case investigation and thereby conducted ineffective cross-examinations of state witnesses and inadequately and improperly relied on the Commonwealth's expert witnesses' contradictions as his only defense strategy; and (2) counsel was ineffective for not subpoenaing defense witnesses that were credible and relevant to the defense.
Petitioner's first claim was rejected by the trial court:
In his next three allegations of ineffectiveness, the defendant claims that counsel failed to properly cross-examine or adequately question the credibility of Commonwealth witnesses Deborah Arnold, Thailan Nguyen, and Officer Shoenberger. With respect to Ms. Nguyen, the defendant has failed to support his allegation of ineffectiveness, and therefore, the claim fails. Ellis, supra. As to Mrs. Arnold, the defendant alleges that counsel did not cross-examine her "too, too much" and did not pursue an inconsistency in her testimony. Counsel's cross-examination of Mrs. Arnold reveals that he questioned her regarding the circumstances under which Tierra's statements were made, and the lack of consistency in Tierra's language when describing what her father had done to her. Beyond these issues, trial counsel believed there was nothing else about Mrs. Arnold's testimony that he could attack, and that there were no significant inconsistencies between her pre-trial and trial testimony that were useful to the defense. Since counsel did question Mrs. Arnold in an attempt to discredit her testimony, albeit unsuccessfully, defendant's claim of ineffectiveness on this basis is without merit.
Finally, Officer Shoenberger was the first officer to respond to Tierra's home because of a call that the child was unresponsive. The defendant alleges that the officer lied when she testified: ". . . I remember the defendant, Tierre Davis, reached over top of me. I didn't know he was the father at the time, palm the child's head. And I almost thought it was going to be like, it's okay. She's going to be fine, but it wasn't. It was a rough, she'll be fine. Threw the kid's head to the left, threw the kid's head to the right and it just did throw me." The defendant claims that, although he told counsel he was in a different room when the officer arrived and never even saw her in the home, counsel did not cross-examine the officer on her alleged fabrication. Counsel stated that he did not remember the defendant telling him this information, but even so, he did not consider the officer to be a key witness. In hindsight, counsel testified that he viewed the touching of Tierra's head as a tangential issue, that it was not one of the actions for which the defendant was on trial, and that the officer's testimony did not inculpate the defendant in any way.
The defendant's claim on this point is of marginal merit because one could argue that the officer's testimony, if believed, characterized the defendant as a cold and uncaring parent, and possibly, incurred the jury's dislike of him from the beginning. However, even if counsel had challenged the officer's recollection with the defendant's version of events, we do not believe that such a challenge can be considered vital to the determination of the trial. First, there is no guarantee that counsel's attempt to discredit the officer's testimony on a relatively minor factual issue would have been successful. Second, and most significantly, the effect of counsel's failure to cross-examine Officer Shoenberger in such a fashion becomes insignificant in the face of the substantial evidence of the defendant's guilt presented through the Commonwealth's other witnesses. The defendant's claim cannot succeed because he has not shown that the verdict would have been different absent counsel's inaction. Cox, supra.Commonwealth v. Davis, No. 3269 EDA 1999, Pa. Super., 1/26/01, pp. 28-30. Petitioner also presented his second claim, that counsel was ineffective for not subpoenaing defense witnesses that were credible and relevant to the defense, to the trial court. The court found:
The defendant next claims that counsel did not call witnesses who would have provided a defense to the charges. Specifically, the defendant contends that his mother, uncle and brother were present in the home at the time of the alleged incident as well as the next day when the defendant discovered his unconscious daughter. He alleges, therefore, that they would have testified to the times he was not in the house, and would have stated what happened when he "disciplined" his daughter. He also believed that his uncle would have testified that the defendant did not shake his daughter's head when Officer Shoenberger was trying to resuscitate her.
"To prevail on a claim of trial counsel's ineffectiveness for failure to call a witness, the defendant must show: (1) that the witnesses existed; (2) that the witnesses were available; (3) that counsel was informed of the existence of the witnesses or should have known of the witnesses' existence; (4) that the witnesses were available and prepared to cooperate and would have testified on [defendant's] behalf; and (5) that the absence of the testimony prejudiced the [defendant]." Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 306 (1999).
Defendant cannot prevail on this claim because he has failed to establish the elements of the above-stated standard. Aside from general assertions in his own testimony, the defendant has presented no substantive proof that his mother, uncle or brother would have been willing and able to testify on his behalf. Also, the defendant provides no specifics as to how these witnesses' testimony would have assisted his defense, or stated another way, how he was prejudiced by the absence of their testimony. For example, what would his family members have said about the "discipline," and what is the significance of times he was out of the house if the testimony established that the beatings occurred during times he was in the house. On such bare allegations, we are left only to speculate about the testimony of these witnesses.
With regard to this claim, counsel testified that he did contact and interview the defendant's mother, brother, and uncle. The defendant's brother was in state prison at the time and was willing to say only that he and the defendant were out trying to obtain drugs both before and after the incident. However, the defendant's brother stated that he preferred not to testify because "[h]e was in line for community corrections, and if he was called for community corrections and not in the facility, he would be put on the bottom of the list again." Counsel also determined that neither the defendant's mother nor uncle could offer favorable factual testimony on behalf of the defendant, and the defendant's mother indicated that she was unable to travel from the southern part of the United States to attend the trial on March 23, 1999. Additionally, we fail to see how the defendant was prejudiced by the absence of such testimony, if provided, when by his own confession, he implicated himself in the beating of his daughter and provided a description of its severity. As defendant has failed to establish even a prima facie claim, counsel will not be deemed ineffective on this basis.Id. at 30-32. As stated previously in this Report, Petitioner must present his claims for every level of state court review in order to exhaust them. Duncan, 513 U.S. at 365 (quotingPicard, 404 U.S. at 275). Petitioner abandoned these two claims on appeal, and because Petitioner did not present them to all levels of the state court, he precluded those courts from meaningful review of his claims. Thus, the instant claims are defaulted.Coleman, 501 U.S. at 731-732. These claims are also procedurally defaulted because it would be futile for Petitioner to seek review in the state court since any such petition for relief would now likely be denied as untimely.
Federal courts may review a procedurally defaulted claim, notwithstanding its procedural default, only where the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims would result in a fundamental miscarriage of justice." Id. at 750. Petitioner does not allege cause and prejudice, therefore the procedural defaults cannot be excused on this basis. Teague, 489 U.S. at 298 (holding that petitioner's failure to allege cause for his default precluded federal habeas review of defaulted claim).
Similarly, Petitioner fails to establish that a failure to consider the claims will result in a fundamental miscarriage of justice. This exception requires that a petitioner supplement his claims with "a colorable showing of factual innocence."McCleskey, 499 U.S. at 495 (citing Kuhlmann, 477 U.S. at 454). The Supreme Court has held that the burden is on the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent."Schlup, 513 U.S. at 327 (citing Murray, 477 U.S. at 496). That is, "in light of all the evidence, . . . it is more likely than not that no reasonable juror would have convicted him." Id. at 327-328. Petitioner fails to support his assertion of innocence with any evidentiary support. Such a bald assertion will not suffice to excuse Petitioner's default, and these claims must be denied.See Hull, 991 F.2d at 91 n. 3.
For the foregoing reasons, I make the following:
RECOMMENDATION
AND NOW, this day of October, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.