Opinion
Civil Action No. 00-2984.
April 12, 2005
MEMORANDUM
Presently before this Court is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition will be denied.
I. BACKGROUND
On January 25, 1985, at approximately 11:00 p.m., Petitioner Carlos M. Flecha and his co-conspirator Miguel Ortiz entered the Philadelphia home of Tomasita Vasquez. (N.T. 1/13/86, 46). At the time Ms. Vasquez was at home with her daughter, Lisa Michelle Julia. Petitioner was armed with a .32 caliber pistol, and Ortiz was armed with a sawed-off shotgun. The men told the women to get on the floor. Both victims were able to get a good look at their assailants, and Ms. Vasquez immediately recognized them from the neighborhood. (N.T. 1/13/86, 51-53; 1/16/86, 18, 20).
The men began searching the house, taking jewelry, money and other valuables. (N.T. 1/13/86, 52-53). After the house was ransacked, Ortiz ordered Ms. Vasquez to go downstairs into the basement and take off all her clothes or he would killer her. Ortiz followed her downstairs and forced her to engage in sexual intercourse with him. After Ortiz returned to the first floor of the house, Petitioner went to the basement. Ms. Vasquez lay there with only a blouse on. Petitioner began unzipping his pants. Ms. Vasquez then stated that she heard her brother's car pulling up to the house. Petitioner immediately ran upstairs, and the two men fled the scene. Ms Vasquez then called her brother and the police. (N.T. 1/13/85, 54-60).
The two men were arrested and subsequently went to trial. On January 24, 1986, a jury sitting before the Honorable Marvin R. Halbert of the Philadelphia County Court of Common Pleas convicted Petitioner of attempted rape, burglary, and robbery. Based upon Petitioner's extensive criminal history, including both state and federal convictions, Judge Halbert sentenced Petitioner to two concurrent terms of five to ten years imprisonment for the attempted rape and burglary, and a consecutive term of ten to twenty years for robbery.
The Pennsylvania Superior Court affirmed the convictions on direct appeal. Commonwealth v. Flecha, 547 A.2d 436 (Pa.Super.Ct. 1988) (table) (attached hereto as "Attachment A"). The Pennsylvania Supreme Court also denied Petitioner's request for discretionary review. Commonwealth v. Flecha, 563 A.2d 887 (Pa. 1989). Following direct review, Petitioner filed a petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq. The PCRA court denied the petition, and the Superior Court affirmed the dismissal. Commonwealth v. Flecha, 731 A.2d 194 (Pa.Super.Ct. 1998) (table) (attached hereto as "Attachment B"). The Supreme Court denied Petitioner's request for discretionary review.Commonwealth v. Flecha, 742 A.2d 672 (Pa. 1999) (table).
Petitioner initiated the present action by filing his petition for habeas corpus relief with this court on June 13, 2000. The Clerk's office assigned the petition Civil Action Number 00-2984. On July 10, 2000, Petitioner filed a "Praecipe to Withdraw Motion for Habeas Corpus Relief." The Court granted Petitioner's request to withdraw his petition on July 14, 2000, granting him a 120 day extension to refile his petition. That Order was filed in the appropriate case file.
On October 27, 2000, Petitioner refiled his Petition for Habeas Corpus, but did not file it under No. 00-2984. The Clerk's office treated the petition as a new petition, assigning it Civil Action Number 00-5455. Because we did not recognize the new petition filed under No. 00-5455 as the one for which we had granted the 120 day extension under No. 00-2984, the Petition was dismissed by this Court as untimely. That dismissal was appealed to the Third Circuit, which remanded the case with instructions to the Clerk to "docket the refiled petition filed on October 27, 2000 under docket No. 00-2984." Due to an oversight, this was not done and the open habeas corpus petition did not appear on our monthly reports. On May 4, 2004, Petitioner filed a Motion requesting that the directions of the Appellate Court be carried out. This was the first reminder we had of an outstanding habeas corpus petition. From that date until late December 2004, we were unable to locate file no. 00-5455.
Once all of the files were located, the Court ordered their consolidation into No. 00-2984 on January 6, 2005. A response was ordered from the District Attorney, which was filed on March 30, 2005.
II. DISCUSSION
Petitioner raises the following claims in his habeas petition: (1) the evidence presented at his trial was insufficient to support a guilty verdict on the charges of burglary and rape; (2) the Commonwealth interrupted the defense counsel and disrupted the trial proceedings; (3) the Commonwealth introduced perjured testimony; (4) the trial court erred in failing to instruct the jury on lesser offenses; (5) trial counsel rendered ineffective assistance during trial; and (6) the trial court erred in permitting the victim's brother, George Vasquez, to give opinion testimony.
All of Petitioner's claims are either procedurally defaulted and/or meritless under the Anti-terrorism and Effective Death Penalty Act standard of review. I begin with Petitioner's procedurally defaulted claims, and then consider the remaining claims on the merits.
A. Procedural Default
It is a well settled rule that before a prisoner in state custody may obtain federal review, the prisoner must exhaust the remedies available to him in the state courts. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 841-42 (1999). The exhaustion requirement is not a mere formality to be ignored when it suits a prisoner's litigation strategy; rather it serves important interests of comity and federalism. O'Halloran v. Ryan, 835 F.2d 506 (3d Cir. 1987).
The exhaustion rule requires a prisoner to fairly present his claims to the state courts in the first instance, in order to give those courts a meaningful opportunity to pass upon and correct alleged violations of the prisoner's constitutional rights. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quotingPicard v. Connor, 404 U.S. 270, 275 (1971)). To fairly present a claim, a prisoner must "use the State's established appellate procedures before he presents his claims to a federal court."O'Sullivan, 526 U.S. at 845-46. In short, the petitioner must invoke one complete round of the state's established review process on the claim, including recourse to the state's court of last resort, before he may assert the claim on federal habeas review. O'Sullivan, 526 U.S. at 842. Generally, federal courts should dismiss unexhausted claims without prejudice, so as not to deprive the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993). However, if a petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims would find the claim to be procedurally barred, the federal courts are precluded from reviewing the petition as well.Coleman v. Taylor, 501 U.S. 722, 729, 735 n. 1 (1991).
A procedural default may be excused only if a prisoner demonstrates cause and prejudice or a miscarriage of justice. The existence of cause for a procedural default "must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's effort to comply with the State's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). Once cause is shown, the petitioner bears the additional burden of proving that prejudice resulted. Prejudice means that the errors at trial "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494 (quotingUnited States v. Frady, 456 U.S. 152, 170-72 (1982)).
Claims of ineffectiveness of counsel in particular must be raised specifically in the state courts before federal review is proper. Edwards v. Carpenter, 529 U.S. 446, 452 (2000). Furthermore, the "miscarriage of justice" exception requires the petitioner to come forward with new evidence of his actual innocence. Calderon v. Thompson, 523 U.S. 538, 559 (1995).
Petitioners claims that the trial court erred in failing to instruct the jury on lesser included offences and his ineffectiveness of counsel claims are procedurally defaulted. Petitioner failed to present these claims to the state court on either direct or post-conviction review. As further review of these claims is foreclosed by the PCRA's one year, jurisdictional statute of limitations, 42 Pa. Cons. Stat. Ann. § 9545(b), the claims are procedurally defaulted and will not be considered here.Coleman, 501 U.S. at 749.
B. Standard of Review
Since the passage of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2241 et seq, the powers of the federal courts to review state court decisions have been strictly limited. See Hartey v. Vaughn, 186 F.3d 367, 371 (3d Cir. 1999). Under the statute, a federal court may not overturn a state court's resolution of the merits of a constitutional issue unless the state decision (1) was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) was based upon an unreasonable determination of the facts in light of the evidence presented in the state proceedings. 28 U.S.C. § 2254(d)(1) (2).
A habeas applicant is entitled to relief under the "contrary to" clause if the state court arrives at a conclusion opposite to that of 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. Williams v. Taylor, 529 U.S. 362, 411-14 (2000). As a result, a state court's decision will be allowed to stand as long as the court applied the proper Supreme Court precedent, even if a federal court considering the same claim reached a different result by applying the same precedent. Id. at 406-08. In order to prove entitlement to habeas relief under this clause, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome.Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999).
With respect to the "unreasonable application" clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Williams, 529 U.S. at 406-08. Rather, habeas relief is appropriate only where the state court decision is so demonstrably and egregiously misguided as to be unreasonable in an objective sense, in addition to being legally incorrect. Matteo, 171 F.3d at 890.
C. Sufficiency of the Evidence
In reviewing a challenge to the sufficiency of the evidence, the federal habeas court is to determine whether any rational fact finder would conclude that the evidence, when taken in the light most favorable to the prosecution, established the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 308, 319 (1979); see also Orban v. Vaughn, 124 F.3d 727 (3d Cir. 1997). The substantive elements of the offense are defined by state law. Jackson, 443 U.S. at 324 n. 16. Furthermore, the determination of the credibility of witnesses, the resolution of conflicts in the evidence, and the drawing of reasonable inferences from the proven facts all fall within the exclusive province of the jury. They are, therefore, beyond the scope of permissible federal habeas review. Schlup v. Delo, 513 U.S. 298 (1995). Finally, under AEDPA the scope of this Court's review is limited to the treatment of the claim by the state courts; a de novo review is not appropriate.
Petitioner claims that the trial Court should not have permitted the jury to deliberate on the charges of rape and burglary due to the inconsistencies of the victim's testimony. The arguments are without merit. First, Petitioner was not convicted of rape. Rather he was convicted of attempted rape. Accordingly, the Commonwealth was required to prove only that Petitioner (1) intended to commit a specific crime, and (2) committed any act constituting a substantial step toward the commission of that crime. 18 Pa. Cons. Stat. Ann. § 901(a). The victim's testimony of Petitioner's actions in the basement was sufficient to warrant sending the case to the jury on the charge of attempted rape. The Commonwealth was not required to prove that Petitioner raped the victim. Furthermore, any arguments that the victim was not a credible witness are irrelevant to the present determination, as it is the province of the jury to decide such a claim. The Superior Court reasonably dealt with this issue on direct appeal. See Attachment A at 8-9.
Petitioner's arguments that the Commonwealth elicited perjured testimony are similarly without merit. The record clearly reflects the various statements made by the victim, including their many inconsistencies. Once these inconsistencies were properly pointed out by Petitioner's trial counsel, the prosecutor is permitted to introduce additional evidence to explain the inconsistencies, including the testimony of the victim's brother and investigating police officer. The questions of the inconsistencies are then the province of the jury to judge the credibility of the witnesses. The Superior Court reasonably dealt with this issues on direct appeal. See Attachment A at 2-8.
D. Prosecutorial Misconduct
While prosecutorial misconduct may so infect a trial with unfairness as to make any resulting conviction a denial of due process, Greer v. Miller, 483 U.S. 756, 765 (1987), it is not enough that the prosecutor's conduct "is undesirable, erroneous, or even universally condemned." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Rather, the misconduct must rise to such a level that it deprived the petitioner of a fair trial. Smith v. Phillips, 455 U.S. 209, 221 (1982). At this stage, the present inquiry is "the narrow one of due process, and not the broad exercise of supervisory power." Donnelly, 416 U.S. at 642. Accordingly, the only relevant consideration is whether the state court decision rejecting the claim of prosecutorial misconduct was contrary to, or an unreasonable application of, Supreme Court precedent.
Petitioner's claims are insufficient to warrant habeas corpus relief. The record reflects that Petitioner's trial was highly volatile, with continuous, often divisive, disputes through the course of the proceedings. Judge Halbert found fault in the conduct of both the prosecutor and Petitioner's trial counsel. However, he also noticed that the parties faced difficulties with language barriers and other cultural issues making it difficult to illicit responses from witnesses. The Judge opened court on January 21, 1986 with the following admonishment to the prosecutor and Petitioner's trial counsel:
Counsel, I called you to sidebar this morning before we call in the jury to place some thoughts on the record. This has been a trial that will probably run for at least twice as long as the jury was given reason to believe that it would have run. It's been a very difficult trial for many reasons. All of you counsel, all of you were told by me and you heard me tell it to the jury the very instant they were brought in here that I was not feeling well, that I had a very bad throat. I can tell you that all forms of respiratory diseases, including the flu, have been rampant in Philadelphia for the past week. This past week of trial was scheduled to be my chambers week as I've already stated, but I decided that I would handle this case in an effort to try to dispose of the matter. I want to express my extreme disappointment with the way several of the counsel have deported themselves this week. There is no question but that this trial presented an extreme, extreme problem for the prosecution in view of the fact that all of his civilian witnesses are of Hispanic background. As for the two female witnesses, even though they were both born in the United States, there is no doubt whatsoever in my mind that they are American, but they are thinking Spanish. There are in an entirely different culture. I also know that this record doesn't reflect this, but there were very, very long gaps in the responses of the two female witnesses, responses to questions which will not be borne out by the notes of testimony. Again, that was in my judgment occasioned by the culture and/or language gap. Mr. Carpenter, I have little doubt that you have been very frustrated because so far it's been your case and your witnesses that have been called and it seems to me that from your frustration with the responses or non-responses that you were getting from your witnesses, you were injecting yourself by making comments and most often Mr. Vernile properly called them to the Court's attention and I know that I have admonished you on at least several occasions. Mr. Vernile, your conduct disturbs me even more. For the reason that you have demeaned this Court, you have demeaned me personally. You have acted like a common skull rather than as an attorney. I am sure that this record is replete with the fact that you have responded in many instances to comments made by Mr. Carpenter by expressions such as, "Are you going to permit this kind of conduct?" I consider that abominable and rude in the extreme. It was calculated to have this jury have little or no confidence in this Court. You both know that's not the way you're to deport yourself in this Court. Mr. Vernile, if you have an objection you place it on the record. It's not your function to serve as a critic of the Court. You not only demeanor [sic] me, but you demean all of my other colleagues in the entire judiciary with your comments. And you, Mr. Carpenter with your interruptions. I am advising both of you that you both will be considered for censure or possible contempt of court if any further such outbursts take place. I'm very disappointed with both of you, very disappointed. I've tried to give you a fair trial, Mr. Vernile, but you have apparently decided otherwise. If you win your case, so be it. I've tried my best to give you and your client a fair trial. I recognize that some of your comments come out of an excess of zeal in your efforts to represent your client. But don't you dare, don't you dare ever speak to this Court the way you have thus far. Do you understand me, Mr. Vernile?
(N.T. 1/21/86 3-6). In light of the universal courtroom antics that took place during Petitioner's trial, the Superior Court concluded on collateral review that the prosecutor's contributions to the circus did not prejudice the jury against Petitioner. (Attachment B at 5-6). The court noted that several of Petitioner's citations related to comments made at sidebar, and that the prosecutor is permitted to make objections. While some of the assistant district attorney's objections were lengthy, there is no evidence that they prejudiced the jury against Petitioner. There is nothing unreasonable in reaching such a conclusion.
E. Admissibility of Opinion Evidence
Petitioner alleges that the trial court erred in admitting statements made by George Vasquez, the victim's brother, comparing the victim's description of Petitioner with Mr. Vasquez's own personal knowledge of his appearance. Petitioner asserts that this constituted improper expert evidence. The Superior Court on direct review disagreed, holding that Mr. Vasquez's testimony was an admissible opinion based upon his personal observation. (Attachment A, at 5-6).
A state prisoner may obtain federal habeas corpus relief only where "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The admissibility of evidence is generally not a question of constitutional law, rather it is a question of state law.Estelle v. McGuire, 502 U.S. 62, 68. "It is not the province of a federal habeas court to reexamine state-court determinations on state law questions." Id. Petitioners arguments regarding the admissibility of identification evidence presented to the jury and regarding certain alleged inflammatory remarks present questions solely of state law, which are not grounds for relief in the federal courts. Id. Furthermore, Petitioner's evidentiary arguments were properly reviewed and analyzed in the Superior Court. Accordingly, they are not grounds for relief here.
III. CONCLUSION
As all of Petitioner's claims are either procedurally defaulted or meritless under the AEDPA's standard of review, the Petition for Writ of Habeas Corpus will be denied. There are no grounds for the issuance of a Certificate of Appealability.
An appropriate Order follows.
ORDER
AND NOW, this 12th day of April, 2005, upon consideration of the Petition for Writ of Habeas Corpus and the Response in opposition thereto, it is hereby ORDERED that:1. the Petition is DENIED; and
2. no cause exists for the issuance of a Certificate of Appealability.