Opinion
CIVIL ACTION NO. 03-4236
December 18, 2003
REPORT AND RECOMMENDATION
Presently before the Court is a Petition for Writ of Habeas Corpus filed by Jeffrey S. Ford pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the State Correctional Institution in Chester, Pennsylvania. For the reasons which follow, the habeas petition should be denied and dismissed.
Unless otherwise noted, the following facts were compiled from the habeas petition, the Response thereto of the District Attorney of Philadelphia, and a copy of relevant portions of the state court record submitted by respondent.
Following a bench trial before the Honorable Michael R. Stiles, of the Court of Common Pleas of Philadelphia, petitioner was convicted of Murder in the First Degree and Possession of an Instrument of Crime. See Commonwealth v. Ford, No. 1418 Phila. 1990, Mem. Op. at 1 ( Pa. Super, filed May 21, 1991); Hab. Pet. ¶¶ 1-6. Petitioner was sentenced to life in prison for the murder conviction, and following the denial of post-verdict motions, he was also sentenced to a concurrent term of two and a half (2 1/2) to five (5) years in prison for the weapon offense. See Pa. Super. Ct. Op. filed 5/21/91, at 1.
Represented by new counsel, see Hab. Pet. ¶ 15; Resp. to Hab. pet. ¶ 5, petitioner filed a direct appeal to the Superior Court of Pennsylvania, and on May 21, 1991, the Superior Court found petitioner's claims without merit and affirmed the judgment of sentence.See Pa. Super. Ct. Op. filed 5/21/91, at 10. The Supreme Court of Pennsylvania denied petitioner's request for allowance of appeal on January 14, 1992. See Commonwealth v. Ford, 602 A.2d 856 (Pa. 1992) (table).
On December 28, 1996, petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-46. See Commonwealth v. Ford, No. 2387 EDA 1999, Mem. Op. at 2 (Pa. Super, filed Apr. 2, 2002). Following the appointment of counsel, counsel filed an amended petition which was subsequently denied by the PCRA Court. Id. at 2-3. On April 2, 2002, the Superior Court affirmed the PCRA Court's denial of the petition.Id. at 6. The Supreme Court of Pennsylvania denied allowance of appeal on July 1, 2003. See Commonwealth v. Ford, 828 A.2d 349 (Pa. 2003) (table).
Petitioner thereafter filed a petition for writ of habeas corpus in this Court (Doc. No. 1). On July 28, 2003, the Honorable James McGirr Kelly ordered the Clerk of Court to furnish petitioner with thecurrent forms for filing a petition under § 2254, and Judge Kelly further ordered that petitioner complete these forms as directed by Local Rule of Civil Procedure 9.3 and return them to the Clerk of Court within thirty days to avoid dismissal of this civil action.
Local Rule of Civil Procedure 9.3 reads in pertinent part: "All petitions for writ of habeas corpus . . . shall be filed on forms provided by the Court and shall contain the information called for by such forms." Local R. Civ. P. 9.3(a).
On August 27, 2003, petitioner filed his petition on the current forms (Doc. No. 3) pursuant to Local Rule 9.3 and the Court's July 28, 2003 Order. In his habeas petition, petitioner alleges the following grounds for relief: (1) the prosecution failed to disclose to petitioner evidence favorable to petitioner's defense; (2) ineffective assistance of appellate counsel for failing to raise the issue of trial counsel's ineffective assistance in "failing to insure a proper jury waiver colloquy"; (3) ineffective assistance of trial counsel "for failing to introduce the [victim's] propensity for violence"; and (4) ineffective assistance of appellate counsel in failing to raise the issue of trial counsel's ineffective assistance "for producing a character witness who had been convicted of a violent crime before the [trial court] and for failing to object to the Commonwealth calling police officers as negative character witnesses." See Hab. Pet. ¶ 12(A)-(D).
In support of his first claim, petitioner alleges that "[a]ll medical records which included exculpatory evidence of the victim's health conditions prior to and during the hospital stay . . . include pre-existing factors contributing to the actual demise." See Hab. Pet. ¶ 12(A).
In the Response to the habeas petition, respondent argues that petitioner's first claim is procedurally defaulted and, in any event, without merit. In addition, respondent argues that petitioner's second, third, and fourth claims are not cognizable and without merit.See Resp. to Hab. Pet. at 12-27.
II. DISCUSSION
(A) Alleged Errors in PCRA Proceedings
In support of petitioner's second, third, and fourth claims, petitioner alleges that the state courts erred during the post-conviction proceedings. See Hab. Pet. ¶ 12(B)-(D). "[T]he federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation." Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998). Thus, "infirmities in state habeas proceedings do not constitute grounds for federal habeas relief Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert. denied, 507 U.S. 1056 (1993): see Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (finding that claim challenging state post-conviction proceedings "fail[s] to state a federal constitutional claim cognizable in a federal habeas proceeding");see also Terry v. Gillis, 93 F. Supp.2d 603, 614 (E.D. Pa. 2000) ("Claims attacking a state court's application of post-conviction procedures do not state a basis for a federal claim under 28 U.S.C. § 2254."). Therefore, to the extent that petitioner alleges infirmities in the PCRA Court proceedings, petitioner's claims are not cognizable in a § 2254 petition.
(B) Exhaustion of State Remedies and Procedural Default
"It is axiomatic that a federal habeas court may not grant a petition for a writ of habeas corpus unless the petitioner has first exhausted the remedies available in the state courts." Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. § 2254(b)(1)(A)),cert. denied, 532 U.S. 919 (2001); Toulson v. Bever, 987 F.2d 984, 986 (3d Cir. 1993). Specifically, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); see Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001), cert. denied, 535 U.S. 957 (2002).
Requiring exhaustion of state remedies "addresses federalism and comity concerns by `afford[ing] the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.'" Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir. 2001);Lambert, 134 F.3d at 513 n. 18 (citing Toulson, 987 F.2d at 986). Although the exhaustion rule is a matter of comity and not jurisdiction, it "should be strictly adhered to because it expresses respect for our dual judicial system." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992) (quoting Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990)) (emphasis added),cert. denied, 404 U.S. 944 (1992); see Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996) ("Pursuing state remedies is not a mere formality").
The petitioner has the burden of proving all facts entitling him to a discharge from custody as well as demonstrating that he has met all procedural requisites entitling him to relief. Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). Thus, the habeas petitioner carries the burden of proving exhaustion of all available state remedies.Coady, 251 F.3d at 488 (citing Toulson. 987 F.2d at 987):Lambert, 134 F.3d at 513.
In the present case, petitioner has "invok[ed] one complete round of the State's established appellate review process," with regard to his second, third, and fourth claims raised in the present petition.See Hab. Pet. ¶ 12(B)-(D). Petitioner presented these claims to the state courts, see, e.g., Pa. Super. Ct. Op. filed 4/2/02, at 3; Pa. Super. Ct. Op. filed 5/21/91, at 6-8, and the Supreme Court of Pennsylvania denied allowance of appeal. See Commonwealth v. Ford, 828 A.2d 349 (Pa. 2003) (table); Commonwealth v. Ford, 602 A.2d 856 (Pa. 1992) (table). Therefore, since it appears that petitioner has given the Pennsylvania courts "one full opportunity" to address his second, third, and fourth claims, petitioner has satisfied the exhaustion requirement with regard to these claims. See O'Sullivan, 526 U.S. at 844-45; see also Wenger, 266 F.3d at 223.
As respondent points out, see Resp. to Hab. Pet. at 13-14, it appears that petitioner failed to fairly present his first claim,see Hab. Pet. ¶ 12(A); see also supra note 3, to the Pennsylvania courts on direct appeal or during post conviction proceedings. See, e.g., Pa. Super. Ct. Op. filed 4/2/03, at 2-4; Pa. Super. Ct. Op. filed 5/5/91, at 1. Indeed, the habeas petition acknowledges petitioner's failure to exhaust his first claim.See Hab. Pet. ¶ 13 (identifying his first claim as never having been "previously presented in any other court"); see also Resp. to Hab. Pet. at 13-14 ("this claim that the prosecution withheld medical records has never been raised or even alluded to before any state tribunal"). Thus, the Pennsylvania courts did not have "one full opportunity to resolve" petitioner's first claim during "one complete round of the State's established appellate review process."See O'Sullivan, 526 U.S. at 844-45; see Wenger, 266 F.3d at 223.
The failure to "fairly present" federal claims in state court, where no state remedy remains available, "bars the consideration of those claims in federal court by means of habeas corpus because they have been procedurally defaulted." Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (citing Coleman v. Thompson, 501 U.S. 722, 731 (1991)). cert. denied, Cristin v. Wolfe, 537 U.S. 897 (2002). "By refusing to consider claims that have been procedurally defaulted in state court, [the procedural default] doctrine `encourage[s] state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.'" Cristin, 281 F.3d at 410 (quotingRose v. Lundy, 455 U.S. 509, 518-19 (1982)). In addition, the doctrine "facilitates the proper review of the federal claims, for those claims `that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal courts in their review.'" Cristin, 281 F.3d at 410 (quoting Lundy, 455 U.S. at 519).
In Coleman v. Thompson, 501 U.S. at 750, the Supreme Court explained the exceptions to the procedural default doctrine:
In all cases in which a state prisoner has defaulted his federal claims in state court[,]. . . federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate the failure to consider the claims will result in a fundamental miscarriage of justice.See Cristin, 281 F.3d at 409 n. 5 (quotingColeman, 501 U.S. at 750). To satisfy the cause and prejudice requirement, "a petitioner must demonstrate some objective factor external to the defense that prevented compliance with the state's procedural requirements." Cristin, 281 F.3d at 412 (quoting Coleman, 501 U.S. at 753) (emphasis added); see also Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (quotingMurray v. Carrier, 477 U.S. 478, 488 (1986)). cert. denied, 532 U.S. 980 (2001). The "cause" alleged must be "something that cannot fairly be attributed to" the petitioner. Coleman, 501 U.S. at 753.
In the alternative to showing cause and prejudice, a petitioner must show that failure to review the federal habeas claim will result in a "miscarriage of justice." See Werts, 228 F.3d at 193. "Generally, this exception will apply only in extraordinary cases, i.e., `where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (quotingMurray, 477 U.S. at 496). "To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime . . . by presenting new evidence of innocence."Cristin, 281 F.3d at 412 (quoting Keller v. Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001) (citations omitted)): see Schlup v. Delo, 513 U.S. 298, 316 (1995).
Where "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,]. . . there is a procedural default for purposes of federal habeas." Coleman, 501 U.S. at 735 n.*. In the present case, it appears that petitioner no longer has a remedy by which the state courts could consider his first claim because he is now barred from raising that claim in a second PCRA Petition. See 42 Pa. C.S.A. § 9545(b)(1). In particular, since petitioner's judgment of conviction became final in 1992, a second PCRA petition would now be time-barred under the PCRA's one-year time limit on filing petitions, including second or subsequent petitions. See Walker, 2003 WL 115951, at * 1: see also Lines v. Larkins, 208 F.3d 153, 164-66 (3d Cir. 2000). cert. denied, 531 U.S. 1082 (2001). Thus, petitioner's first claim is procedurally defaulted in the Pennsylvania courts. See Coleman, 501 U.S. at 735, 750.
42 Pa. C.S.A. § 9545(b)(1) states: "Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final. . . ."Walker v. Frank, 2003 WL 115951, at *1 n. 1 (3d Cir. Jan. 14. 2003). cert. denied, 124 S.Ct. 91 (2003): see also Hendel v. Vaughn, 1998 WL 470159, at *5 n. 8 (E.D. Pa. Aug. 10, 1998).
Although petitioner appears to allege that the state court failed to grant him a petition "for subpoena of medical records" and that investigators did "no work" for petitioner, these are not reasons which would prevent petitioner from presenting his first claim to the state courts. For example, the fact that petitioner was able to include this claim in the present petition suggests, if not demonstrates, that these alleged circumstances did not prevent him from raising his first claim in the state courts. Moreover, petitioner fails to allege, let alone demonstrate, "actual prejudice as a result of the alleged violation of federal law, or demonstrate the failure to consider the claim will result in a fundamental miscarriage of justice." See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750). Since petitioner fails to show "cause and prejudice" or a "fundamental miscarriage of justice" to excuse his underlying default, the Court may not consider the merits of petitioner's defaulted claim. See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750); see also Werts, 228 F.3d at 194.
(C) Legal Standard Under 28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132 (Apr. 26, 1996), precludes federal habeas relief as to:
any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d) (footnote added) (emphasis added): see Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S.Ct. 269 (2001). In Williams v. Taylor, 529 U.S. at 412-13, the Supreme Court interpreted the standard under § 2254(d)(1) as follows:
"Clearly established Federal law, as determined by the Supreme Court of the United States" refers to the "holdings, as opposed to the dicta" of the Supreme Court's decisions as of the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000); Ross v. Vaughn, 2001 WL 818359. at *3 (E.D. Pa. Jan. 16.2001): see also Lockyer v. Andrade, 123 S.Ct. 1166, 1172(2003).
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
The Court of Appeals for the Third Circuit observed in Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir.) (en banc), cert. denied, 528 U.S. 824 (1999), that to prove entitlement to habeas relief under the "contrary to" provision of § 2254(d)(1), "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo, 171 F.3d at 888 (emphasis added); see Werts, 228 F.3d at 197. "This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent." Id. at 197 (quoting Matteo, 171 F.3d at 888).
Prior to the Supreme Court's decision in Williams v. Taylor, the Court of Appeals for the Third Circuit construed the standard of review under § 2254(d)(1) in Matteo, The Third Circuit has since stated that its opinion in Matteo is in accord with the Supreme Court's decision in Williams.See Werts, 228 F.3d at 197.
When making the "unreasonable application" inquiry, the federal habeas court should ask "whether the state court's application of clearly established federal law was objectively unreasonable."Williams, 529 U.S. at 409 (emphasis added); see Chadwick v. Janecka, 312 F.3d 597, 607 (3d Cir. 2002) (citingWilliams, 529 U.S. at 409, and Matteo, 171 F.3d at 891), cert. denied, 123 S.Ct. 1914 (2003). In applying the "unreasonable application" provision of § 2254, "[t]he federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo, 171 F.3d at 891 (emphasis added); see Chadwick, 312 F.3d at 607 (citingMatteo, 171 F.3d at 891); Werts, 228 F.3d at 197.
The Supreme Court stressed that an application of federal law may be incorrect but still not unreasonable. Williams, 529 U.S. at 411: see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Thus, mere disagreement with a state court's conclusions is insufficient to justify relief. Williams, 529 U.S. at 411;Matteo, 171 F.3d at 891. In determining whether the state court's application of the Supreme Court precedent is objectively reasonable, habeas courts may consider the decisions of federal courts of appeals and district courts. Id. at 890; Ross, 2001 WL 818359, at *4.
With regard to findings of fact, § 2254(e)(1) provides that a state court's determination of a factual issue is "presumed to be correct" and further provides that a habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (emphasis added):see Chadwick, 312 F.3d at 607; Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. "This presumption applies to the factual determinations of both state trial and appellate courts."Duncan, 256 F.3d at 196; see Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Furthermore, under Supreme Court and Third Circuit precedent, the presumption of correctness under the habeas statute applies to implicit factual findings as well as the express findings of the state courts. See Campbell v. Vaughn, 209 F.3d 280, 285-86, 290 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001).
Factual issues are "basic, primary or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators.'" Berrvman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Townsend v. Sain, 372 U.S. 293 (1963)).
(D) Ineffective Assistance of Counsel
The merits of petitioner's ineffective assistance claims, see Hab. Pet. ¶ 12(B)-(D), are governed by the Supreme Court's holding inStrickland v. Washington, 466 U.S. 668 (1984). See Williams, 529 U.S. at 390. In Strickland, the Supreme Court set forth the now-familiar standard for reviewing a claim of ineffective assistance of counsel:
To the extent that petitioner's claims may be construed as alleging ineffective assistance of PCRA counsel, his claims are not cognizable in a federal habeas petition. See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."):see also Cristin, 281 F.3d at 420 (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)) (habeas petitioner "had no Sixth Amendment right to representation at his PCRA hearing"); Hendel, 1998 WL 470159, at *5 ("Petitioner cannot claim ineffective assistance at the PCRA level because there is no constitutional right to counsel at that stage.").
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland, 466 U.S. at 687; see Williams, 529 U.S. at 390.
An inquiry into effective assistance of counsel is a mixed question of law and fact. Berryman, 100 F.3d at 1094. Therefore, an ineffective assistance claim "require[s] the application of a legal standard to the historical-fact determinations." Id. (quoting Townsend, 372 U.S. at 310 n. 6).
To establish ineffective assistance, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.
In meeting the prejudice prong of an ineffective assistance claim: "Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see Williams, 529 U.S. at 391.
Although Strickland discussed a two-prong test in evaluating claims of ineffective assistance, it is unnecessary for a court to address both components of the inquiry if the petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 694. Therefore, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,. . . that course should be followed." Id.
In the present case, in denying petitioner's ineffective assistance claims, the state courts "did not apply a rule of law that contradicts the Supreme Court's holding in Strickland." See Werts, 228 F.3d at 204 (holding that Pennsylvania court's decision denying ineffective assistance claim "was not contrary to established Supreme Court precedent."); see also Brand v. Gillis, 210 F. Supp.2d 677, 684 (E.D. Pa. 2002) (citing Werts, 228 F.3d at 203) (Pennsylvania standard governing ineffective assistance claims "has been found to be materially identical" to the Strickland test); Commonwealth v. Kimball, 724 A.2d 326, 332 (Pa. 1999) (quoting Commonwealth v. Pierce, 527 A.2d 973, 977 (Pa. 1987)) ("Pennsylvania's standard [for ineffective assistance of counsel claims] and Strickland `constitute the identical rule of law.'"). Furthermore, petitioner has failed to show that "the state court [was] confronted [with] a set of facts that [were] materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrive[d] at a result different from [the Supreme Court's] precedent." See Williams, 529 U.S. at 406. Accordingly, the state court's denial of petitioner's ineffective assistance claims was "not contrary to established Supreme Court precedent." See Werts, 228 F.3d at 204 (finding that application of Pennsylvania's standard governing ineffective assistance claims was not contrary to established Supreme Court precedent); Brand, 210 F. Supp.2d at 684 ("The Third Circuit has ruled that [the Pennsylvania] standard is not `contrary to' Strickland"); see also Williams, 529 U.S. at 405-06; Appel, 250 F.3d at 209.
(E) Jury Waiver Colloquy
Petitioner's second claim alleges that "prior appellate counsel was ineffective for failing to raise or adequately preserve the issue of trial counsel's ineffectiveness for failing to insure a proper jury waiver colloquy." See Hab. Pet. ¶ 12(B). Although the present petition does not appear to allege any particular reason that the colloquy was improper, see id., in the state court proceedings petitioner claimed that "trial counsel was ineffective for allowing the Commonwealth to `coerce' the defendant into waiving a jury trial by agreeing to forego seeking the death penalty if the defendant received a waiver trial," see Commonwealth v. Ford, No. 2269 Nov. Term 1987, Mem. Op. at 3-4 (Phila. Ct. Com. Pl.Op. filed 1/26/01).
In denying petitioner's claim, the Pennsylvania Superior Court adopted the opinion of the PCRA Court. See Pa. Super. Ct. Op. filed 4/2/02, at 5. The PCRA Court found that the trial court "conducted an extensive colloquy of [petitioner], and properly found that [petitioner] voluntarily, knowingly, and intelligently waived his right to a jury trial, and was cognizant of the fact that the Commonwealth was promising not to seek the death penalty in return for a waiver trial."See Phila. Ct. Com. Pl.Op. filed 1/26/01, at 5 (citing N.T. 12/13/88, at 4-14). The Court further observed that a waiver of a jury trial is not involuntary or unknowing merely because the Commonwealth promises to forego seeking the death penalty.See Phila. Ct. Com. Pl.Op. filed 1/26/01, at 5.
Similar to the present case, in Parrish v. Fulcomer, 150 F.3d 326 (3d Cir. 1998), the habeas petitioner claimed that his "trial counsel was ineffective `for failing to secure a valid constitutional waiver of a jury trial colloquy,'" and "for failing to raise this issue on direct appeal." Id. at 327. Citing Brady v. United States, 397 U.S. 742 (1970), the Court of Appeals in Parrish observed that "[a]though Brady involved a plea of guilty rather than a waiver of right to a jury trial, the [Brady] Court noted that a guilty plea involves the waiver of the right to a jury trial as well as the waiver of the right not to incriminate oneself." Parrish, 150 F.3d at 328 (citing Brady, 397 U.S. at 748).
The Court of Appeals in Parrish pointed out that "the [Brady] Court explicitly held that `a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.'" Parrish, 150 F.3d at 328 (citing Brady, 397 U.S. at 755). The Court in Parrish further noted that the "test for determining the validity of guilty pleas" was "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Parrish, 150 F.3d at 328 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
Since "there [was] no allegation that the Commonwealth threatened prosecution on a charge not justified by the evidence, nor threatened a more onerous penalty than indicated by the facts for the purpose of obtaining an unfair advantage in negotiating with [the petitioner's] counsel," the Court in Parrish determined that "counsel was not ineffective for `failing to secure a valid constitutional waiver of a jury trial colloquy.'" Parrish, 150 F.3d at 328. Similarly, in the present case, petitioner does not allege that the Commonwealth threatened prosecution on a charge not justified by the evidence, or that he was threatened "a more onerous penalty than indicated by the facts for the purpose of obtaining an unfair advantage in negotiating with [petitioner's] counsel." See Id.
Furthermore, although petitioner challenges the trial court's "jury waiver colloquy," petitioner does not appear to specifically allege that his waiver of a jury trial was an involuntary or unknowing choice,see Parrish, 150 F.3d at 328, or that he would not have waived the right to a jury trial if Judge Stiles' colloquy were in some way different. Indeed, as the Superior Court observed, the record reflects that Judge Stiles conducted an extensive and thorough colloquy,see Phila. Ct. Com. Pl.Op. filed 1/26/01, at 5, and petitioner acknowledged during the colloquy that he was voluntarily and intelligently waiving his right to a jury trial. See N.T. 12/13/88, at 4-14 (attached to Resp. to Hab. Pet. as Ex. "C"): see also Parrish, 150 F.3d at 328 (quoting Alford, 400 U.S. at 31). Petitioner has failed to demonstrate that trial counsel's assistance was ineffective by failing to "insure a proper jury waiver colloquy,"see Hab. Pet. ¶ 12(B), and, as the state court recognized,see Phila. Ct. Com. Pl.Op. filed 1/26/01, at 8, appellate counsel's assistance was not ineffective in failing to raise a meritless claim. See, e.g., Parrish, 150 F.3d at 328 (citing Moore v. Deputy Comm'rs of SCI Huntingdon, 946 F.2d 236, 245 (3d Cir. 1991)); see Holland v. Horn, 150 F. Supp.2d 706, 787 (E.D. Pa. 2001) (counsel's assistance cannot be ineffective for failing to raise a meritless claim); McAndrews v. Chesney, 1998 WL 136508, at *5 (E.D. Pa. Mar. 23, 1998) (same); Cruz v. Gillis, 1995 WL 355222, at *2 (E.D. Pa. June 9, 1995) ("[A]n attorney has no duty to present a meritless claim.").
It cannot be said that the state court decision denying petitioner's claim "resulted in an outcome that cannot reasonably be justified" or that "Supreme Court precedent requires an outcome contrary to that reached by" the state court. See Matteo, 171 F.3d at 891. Accordingly, the state court's adjudication of petitioner's claim did not "result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."See 28 U.S.C. § 2254(d)(1): see also Williams, 529 U.S. at 404-05; Matteo, 171 F.3d at 891.
(F) Victim's Alleged "Propensity for Violence"
Petitioner's third claim alleges that "trial counsel was ineffective for failing to introduce the [victim's] propensity for violence." See Hab. Pet. ¶ 12(C). In addressing this claim, the Superior Court found that, under Pennsylvania law, "[a] victim's propensity for violence is admissible to corroborate the defendant's knowledge of the victim's violent character and show that the defendant acted in self-defense or to prove that the victim was the aggressor." See Pa. Super. Ct. Op. filed 5/21/91, at 8 (citing Commonwealth v. Amos, 284 A.2d 748 (1971)) (emphasis added). The Superior Court further found that "[petitioner] did not produce any evidence establishing self-defense or that the victim was the aggressor." See Pa. Super. Ct. Op. filed 5/21/91, at 8. Moreover, the Court found: "Throughout the trial, [petitioner] asserted that there was a struggle and that the victim accidently shot himself. [Petitioner] denied any and all responsibility for the shooting. Therefore, the victim's criminal record, even if it existed, would not have been admissible." Id. (citing Commonwealth v. Rivers, 557 A.2d 5 (1989)) (emphasis added).
Petitioner's third claim also appears to challenge the PCRA Court's application of Pennsylvania law in finding that, to the extent that petitioner had raised the claim on direct appeal, petitioner's claim was "previously litigated" under the PCRA. See Hab. Pet. ¶ 12(C); see also Phila. Ct. Com. Pl. Op. filed 1/26/01, at 5-6 ("[Petitioner's] second claim, that trial counsel was ineffective for not introducing evidence of the victim's propensity for violence, has been previously litigated and denied (on direct appeal), and is not a proper subject for review under the [PCRA]."). As explained supra, claims challenging state post-conviction proceedings "fail to state a federal constitutional claim cognizable in a federal habeas proceeding."Steele, 11 F.3d at 1524; see Terry, 93 F. Supp.2d at 614; Duff-Smith, 973 F.2d at 1182; Gattis, 46 F. Supp.2d at 384: see also Estelle v. McGuire, 50-2 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state court determinations of state law questions").
As the Supreme Court stated in Estelle, 502 U.S. at 67-68, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Accordingly, in the present case, this Court must defer to the state court regarding its conclusions on state law issues, such as the admissibility of evidence under Pennsylvania law. See Estelle, 502 U.S. at 67-68. In addition, under § 2254(e)(1), this Court must presume that the Superior Court's factual determinations are correct since petitioner fails to "rebut the presumption of correctness by clear and convincing evidence." See 28 U.S.C. § 2254(e)(1); Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Therefore, since evidence of the victim's propensity for violence would not have been admissible in this case under Pennsylvania law, trial counsel's "fail[ure] to introduce the [victim's] propensity for violence,"see Hab. Pet. ¶ 12(c), did not constitute ineffective assistance, and petitioner's claim warrants no relief.
It cannot be said that the state court decision denying this claim "resulted in an outcome that cannot reasonably be justified" or that "Supreme Court precedent requires an outcome contrary to that reached by" the state court. See Matteo, 171 F.3d at 891. Thus, the state court's adjudication of petitioner's claim did not "result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d)(1); see also Williams, 529 U.S. at 404-05; Matteo, 171 F.3d at 891.
(G) Character Witnesses
Petitioner's final claim is that appellate counsel rendered ineffective assistance in "failing to raise or adequately preserve the issue of trial counsel's ineffectiveness for producing a character witness who had been convicted of a violent crime" and in "failing to object to the Commonwealth calling police officers as negative character witnesses."See Hab. Pet. ¶ 12(D). In denying petitioner's claim, the Superior Court found the following:
At trial the defense offered five character witnesses. A friend, Ms. Nurkuhert, and the defendant's mother, Dorothy Ford, took the witness stand. George Coverdale and Gerri Brooks, and David Ford testified via stipulations. Judge Stiles immediately informed the parties that Coverdale had previously appeared before him, but that he would not consider that fact in weighing Coverdale's testimony.See Pa. Super. Ct. Op. filed 1/26/01, at 6 (citing N.T. 12/15/88, at 258-59). The Superior Court noted that a trial judge, acting as fact-finder, is presumed capable of disregarding improper or prejudicial evidence. See Pa. Super. Ct. Op. filed 1/26/01, at 6. The Court further found that, under Pennsylvania law, "the testimony of the Commonwealth's rebuttal witnesses regarding evidence of the defendant's negative character" was both "relevant and admissible."See Pa. Super. Ct. Op. filed 1/26/01, at 6 (citingCommonwealth v. Presbury, 478 A.2d 21 (Pa.Super. 1984)).
As explained above, this Court must defer to the state court regarding its conclusions on the state law issue of admissibility of evidence under Pennsylvania law. See Estelle, 502 U.S. at 67-68. Furthermore, under § 2254(e)(1), this Court must presume that the Superior Court's factual determinations are correct since petitioner fails to "rebut the presumption of correctness by clear and convincing evidence."See 28 U.S.C. § 2254(e)(1); Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Since the presently-challenged testimony of the Commonwealth's rebuttal witnesses was admissible under Pennsylvania law,see Pa. Super. Ct. Op. filed 1/26/01, at 6 (citingPresbury, 478 A.2d 21 (Pa.Super. 1984)), trial counsel's assistance was not ineffective in failing to object to the admission of the testimony of "police officers as negative character witnesses,"see Hab. Pet. ¶ 12(D). See Strickland, 466 U.S. at 687; see also Williams, 529 U.S. at 39.
With regard to Mr. Coverdale's testimony, the record reflects that prior to admission of the testimony of the character witnesses, Judge Stiles informed counsel at a sidebar conference that it was his recollection that Mr. Coverdale had appeared before Judge Stiles as a defendant. See N.T. 12/15/88, at 258. However, Judge Stiles assured counsel that Mr. Coverdale's case did not involve a crimen falsi conviction and, in any event, "the facts of his case were somewhat unique and would not impact on his testimony."Id. at 258-59 (emphasis added); see also Id. (Judge Stiles stated "[i]t has no effect or impact on [Mr. Coverdale's] testimony.").
Petitioner is unable to demonstrate that "there is a reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different," see Strickland, 466 U.S. at 694: see also Williams, 529 U.S. at 391. Indeed, Judge Stiles explicitly assured counsel that Mr. Coverdale's previous non-crimen falsi conviction would have "no effect or impact on [Mr. Coverdale's] testimony." See N.T. 12/15/88, at 258. Since petitioner is unable to satisfy the prejudice prong of the ineffective assistance test with regard to the underlying claim that trial counsel rendered ineffective assistance by producing Mr. Coverdale as a character witness, see Hab. Pet. ¶ 12(D), petitioner's underlying claim warrants no relief. Furthermore, petitioner's claim of appellate counsel's ineffective assistance, see Hab. Pet. ¶ 12(D), is without merit, since counsel's assistance cannot be found ineffective for failing to raise a meritless claim. See Holland, 150 F. Supp. at 787; McAndrews, 1998 WL 136508, at *5; Cruz, 1995 WL 355222, at *2: see also Strickland, 466 U.S. at 691 (failure of counsel to pursue fruitless claims "may not later be challenged as unreasonable").
Thus, it cannot be said that the state court decision denying petitioner's claim "result[ed] in an outcome that cannot reasonably be justified" or that "Supreme Court precedent requires an outcome contrary to that reached by" the state court. See Matteo, 171 F.3d at 891. The state court's adjudication of petitioner's claim did not "result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d)(1); see also Williams, 529 U.S. at 404-05;Matteo, 171 F.3d at 891. Accordingly, the present petition should be denied and dismissed.
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue. "A [COA] should issue `only if the applicant has made a substantial showing of the denial of a constitutional right.'"United States v. Drake, 2002 WL 1020972, at *1 (3d Cir. May 21, 2002) (quoting 28 U.S.C. § 2253(c)(2)): see Miller-EL v. Cockrell, 123 S.Ct. 1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000). To establish this, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."Slack, 529 U.S. at 484; see Miller-EL, 123 S.Ct. at 1040; Drake, 2002 WL 1020972, at* 1.
Furthermore, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484;see Miller-El, 123 S.Ct. at 1046 (Scalia, J., concurring) (observing that Slack held "that a habeas petitioner seeking to appeal a district court's denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"); Walker, 2003 WL 115951, at *2;Woods v. Kearney, 215 F. Supp.2d 458, 464 (D. Del. 2002). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further."Slack, 529 U.S. at 484; see Woods, 215 F. Supp.2d at 464.
Here, since a reasonable jurist could not conclude that the Court would be incorrect in dismissing petitioner's aforementioned procedurally defaulted claim, see Slack, 529 U.S. at 484; see, e.g., Swisher v. True, 325 F.3d 225, 231 (4th Cir.) (finding that COA should not issue where habeas claim was barred by the procedural default doctrine), cert. denied, 123 S.Ct. 2668 (2003); Ogan v. Cockrell, 297 F.3d 349, 357-58 (5th Cir.) (same), cert. denied, 123 S.Ct. 582 (2002), and since petitioner has not made the requisite showing of the denial of a constitutional right with regard to petitioner's remaining claims, a certificate of appealability should not issue. See Slack, 529 U.S. at 484; Drake, 2002 WL 1020972, at *1.
My Recommendation follows.