Opinion
Civil Action No. 02-CV-0841.
January 27, 2004
REPORT AND RECOMMENDATION
Before this court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The petitioner, Larry Gregory, is currently incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania. In a prior report and recommendation, this Court recommended that the instant petition be denied with prejudice as untimely. Gregory filed objections and set forth the reasons for the delay in the filing of the petition and included various documents in support of his assertions. The Commonwealth did not file a response. On August 26, 2002, the District Judge remanded the petition to this Court for further consideration.
On December 13, 2002, retained counsel filed an entry of appearance on behalf of Gregory and requested additional time to review the file and prepare any appropriate submissions. On May 7, 2003, counsel asked for additional time in which to file supplemental pleadings. On July 7, 2003, counsel filed a submission that addressed the limited issue of the timeliness of Gregory's petition and, once again, asked for time to file an amended petition. The Commonwealth filed a response. On October 7, 2003, this court granted Gregory permission to file an amended petition within thirty (30) days, and provided the Commonwealth an additional twenty (20) days to file a response. Gregory filed his amended petition on November 5, 2003, and the Commonwealth filed a timely response.
After consideration of the additional pleadings, and for the reasons that follow, it remains this Court's recommendation that Gregory's petition be DENIED with prejudice.
The factual and procedural history of this case has been set forth in this Court's prior Report and Recomm endation and will not be restated herein. After consideration of Gregory's explanation for the delay in filing this petition, and after reviewing the various documents filed in support of his claim that he diligently pursued his case in the state courts, this court finds that Gregory is entitled to the equitable tolling of the limitations period, and therefore, shall consider this petition as if it had been timely filed.
DISCUSSION
It is well-settled that absent exceptional circumstances a federal court will not entertain a petition for a writ of habeas corpus until the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). The policy of this total exhaustion doctrine is rooted in the tradition of comity: the state must be given the "initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights." O'Sullivan, 526 U.S. at 844-45; Picard, 404 U.S. at 275. Exhaustion does not require that the highest state court rule on the merits of the petitioner's claims, but merely that the court be given the opportunity to review them. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989).In order for petitioner to satisfy the exhaustion requirement, he must fairly present every claim included in a federal habeas petition to the highest level of the state courts. O'Sullivan, 526 U.S. at 846-47; Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). The burden of showing that all claims were fairly presented to the state's highest court is upon the habeas petitioner. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993)). When a "state claim is not exhausted because it has not been `fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement may be satisfied because there is `an absence of available state corrective process.'" Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). Where the petitioner has not presented claims to the state courts, and no state remedy remains available, the unexhausted claims are deemed exhausted but procedurally barred. O'Sullivan, 526 U.S. at 848 (citations omitted).
A federal habeas court is precluded from reviewing an issue of federal law raised by a state prisoner if the decision of the state court denying relief rests on a state law ground that is "independent of the federal question and adequate to support the judgment," whether it is substantive or procedural. Lambrix v. Singletary, 520 U.S. 518, 522 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991); Harris v. Reed, 489 U.S. 255 (1989). A state procedural rule is considered independent if it does not rely on the merits of a federal claim or rest its decision primarily on federal law. Harris, 489 U.S. at 260-61. The procedural disposition must comport with similar decisions in other cases so there is a firmly established rule that is applied in a consistent and regular manner in the vast majority of the cases, Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997), and existed at the time of the state procedural default. Ford v. Georgia, 498 U.S. 411, 423-24 (1991); Doctor, 96 F.3d at 684.
In this petition, Gregory raises the following claims: 1) trial court error in its instructions to the jury that it was permitted to find an accomplice guilty of first degree murder without finding that he has the specific intent to kill; 2) trial court error in admitting the unsworn testimony of an eyewitness, Tanesha Williams, who was killed before trial; 3) prosecutorial misconduct for comments made in his opening statement; 4) ineffective assistance of trial counsel for: (a) failing to object to the prosecutor's opening statement; (b) deferring his opening statement; (c) failing to request limiting instructions after prosecutor's opening statement; (d) failing to request a limiting instruction as to the admissibility of Brian Gilmore's testimony; (e) failing to request a limiting instruction after the testimony of a homicide detective concerning his observations of the body of Tanesha Williams and two other women; (f) failing to offer a pretrial statement that would impeach the statement of Tanesha Williams; (g) repeatedly failing to object to Commonwealth evidence that was irrelevant, immaterial, and highly prejudicial; (h) conceding in his opening statement that the Commonwealth had proved its case; and (i) failing to request a copy of the court order precluding the defense from receiving a pretrial copy of Brian Gilmore's statement and precluding the defense from being informed of the intended testimony of Terrence Richardson concerning Gregory's participation in the planning of the murder of Tanesha Robinson; 5) ineffective assistance of appellate counsel for: (a) failing to seek reargument in the Superior Court; (b) failing to effectively argue the ineffective assistance of trial counsel; and (c) failing to raise various issues on direct appeal; 6) the Superior Court abused its discretion and denied Gregory due process by not granting relief based upon an affidavit showing that a Commonwealth witness, Fred Doughtry, had given false testimony at trial; and 7) the Superior Court denied Gregory due process by not serving him with notice that his PCRA appeal had been denied. In its response, the Commonwealth asserts that this petition was untimely; however, it further asserts that each claim is procedurally defaulted or otherwise without merit.
In his amended petition, Gregory provides further clarification of the claims raised in his original petition and attempts to establish cause sufficient to excuse his procedural default. In its response, the Commonwealth contends that Gregory has failed to present cause and prejudice sufficient to excuse his procedural default, and he has failed to demonstrate actual innocence, and as a result, Gregory's claims are not subject to federal habeas review, or are otherwise without merit. This court agrees with the Commonwealth for the reasons that follow.
First, this court finds that Gregory's fifth, sixth, and seventh claims concerning the alleged ineffective assistance of appellate counsel, the Superior Court's abuse of discretion and the Superior Court's denial of due process have never been presented in the state court. As a result, this court must conclude that the claims are procedurally defaulted because no avenue of state review remains available. However, Gregory may obtain federal habeas review of these procedurally defaulted claims if he "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 claim would result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
Further review of these claims is precluded by Pennsylvania law because the state courts would either dismiss a subsequent PCRA petition as untimely or find that the claims had been waived. See 42 Pa. C.S.A. §§ 9543(a)(3); 9544(b); 9545(b)(1). Petitions for collateral review must be filed within one (1) year of the date judgment becomes final unless the petitioner meets one of three limited exceptions that do not apply in the instant case. 42 Pa. C.S.A. § 9545(b). See also Commonwealth v. Peterkin, 722 A.2d 638, 642-43 (Pa. 1998) (finding no jurisdiction to hear an untimely PCRA petition); Commonwealth v. Cross, 726 A.2d 333, 335-36 (Pa. 1999) (same); Commonwealth v. Banks, 726 A.2d 374, 376 (Pa. 1999) (same). Because the Pennsylvania Supreme Court has consistently applied the one-year statute of limitations as a procedural bar to all untimely PCRA petitions, this court must conclude that further review of any additional claims in the state court is clearly foreclosed.
To show cause, Gregory must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1987); Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). To establish the fundamental miscarriage of justice exception to the procedural default rule, Gregory must demonstrate "actual innocence."Schlup v. Delo, 513 U.S. 298, 324 (1995); Calderon v. Thompson, 523 U.S. 538, 559 (1998) (actual innocence sufficient to excuse procedural default requires petitioner to present reliable evidence not offered at trial to show that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence").
Gregory did not address this procedural hurdle in his original petition, nor does his amended petition provide sufficient grounds to excuse the default. In his amended petition, Gregory appears to concede that the claims were not raised in state court, but he contends that the failure to assert the claims was due to the ineffective assistance of PCRA counsel.
It is well-settled that claims based on the ineffectiveness of PCRA counsel are not cognizable on habeas review. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Moreover, a claim of ineffective assistance must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Edwards v. Carpenter, 529 U.S. 446, 452 (quoting Murray, 477 U.S. at 489). It is clear that Gregory has not presented a claim of ineffective assistance of PCRA counsel in the state courts. Furthermore, Gregory does not demonstrate cause for the default and actual prejudice or demonstrate that failure to consider this claim would result in a fundamental miscarriage of justice. Thus, Gregory's fifth, sixth, and seventh claims are not subject to federal habeas review.
Although Gregory states that he is innocent of the crimes that are the subject of this petition, he provides no evidence of his innocence. A mere declaration of innocence is not sufficient to establish actual inno cence. See Schulp, 513 U.S. at 324 ("To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial."); Calderon, 523 U.S. at 559.
Next, Gregory asserts several claims that were raised in the state court but only as violations of state law. To "fairly present" a claim, a petitioner "must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted."McCandless, 172 F.3d at 261. This court must conclude that Gregory has failed to "fairly present" his first, second, and third claims.
In his first and third claims, Gregory contends that the trial court erred in its instruction on first-degree murder and that the prosecutor engaged in misconduct based on statements made in his opening statement. These claims were first raised on direct appeal. A review of his appellate brief reveals that he raised no claim that his rights under federal law or the United States Constitution were violated. Gregory did not raise a due process claim, or cite the U.S. Constitution or any federal law in support of his assertion that he was entitled to a new trial. The Superior Court considered only state law in its determination that there was no error in the trial court's instructions and relied on the trial court's opinion to dispose of the prosecutorial misconduct claim. Commonwealth v. Gregory, No. 1732 Philadelphia 1995, slip op. at 4-7. Having determined that these claims were not raised as federal claims, this court must also conclude that Gregory cannot obtain further state court review because the time for filing a petition for collateral review of his conviction has expired. Thus, these claims are procedurally defaulted.
Similarly, Gregory challenged the admission of two unsworn statements taken from an eyewitness, Tanesha Robinson. Again, this claim was raised as a violation of state law as counsel argued that the Pennsylvania Constitution provided greater protection in this regard than federal law. Moreover, Gregory did not contend that the state court erred in its interpretation and application of federal law in its consideration of this claim. As previously discussed, there is no opportunity for further state review of this claim, therefore, this claim is also procedurally defaulted. Again, Gregory's supplemental petition fails to provide reason sufficient to excuse this default. Because Gregory has not demonstrated cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrated that failure to consider these claims would result in a fundamental miscarriage of justice, Gregory's first, second, and third claims are not subject to federal habeas review.Coleman, 501 U.S. at 750.
Gregory's remaining claims concern the ineffective assistance of trial counsel. In order to be eligible for federal habeas relief, Gregory must establish that the state court's adjudication of the merits of his claims: "1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d)(1), (d)(2); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1504 (2000). In addition, any factual determinations made by the state court shall be presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e).
The United States Supreme Court, in Williams, set forth a two-part test for analyzing claims under § 2254(d), making it clear that the "contrary to" and "unreasonable application" clauses of § 2254(d) have independent meaning. First, under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently from the Supreme Court on a set of materially indistinguishable facts.Id. at 1519. Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 1520. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was unreasonable." Id. "A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522. See also Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (discussing Williams; Early v. Packer, 537 U.S. 3, 10-11 (federal courts may not substitute their own judgment for that of the state court).
When reviewing claims of ineffective assistance of counsel, this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different, absent the alleged ineffectiveness of counsel. Strickland v. Washington, 446 U.S. 668, 695 (1984). To prevail, petitioner must satisfy a two-pronged test by establishing that: (1) counsel's performance was deficient; and (2) counsel's deficient performance prejudiced the defense. Id. at 687.
A strong presumption exists that counsel's conduct falls within the wide range of reasonably professional assistance. Id. at 689. To demonstrate that counsel's performance was deficient, the petitioner must show that counsel's representation fell below an objective standard of reasonableness based on the facts of the particular case, viewed as of the time of counsel's conduct.Id. at 688, 690. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different."Id. at 694. A reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. If it is easier to dispose of an ineffectiveness claim for lack of the requisite prejudice, that course should be followed. Id. at 697. The determination of whether a state court erred in denying a claim of ineffective assistance of counsel requires this court to review whether the state court's application of Strickland was objectively unreasonable. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). In addition, "counsel cannot be deemed ineffective for failing to raise a meritless claim." Id. at 203 (citing Commonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999)).
First, Gregory claims that his trial counsel was ineffective for failing to object to the prosecutor's opening statement. As noted by the trial court, this claim is belied by the record as trial counsel did raise an objection to the prosecutor's reference to other murders and moved for a mistrial. Thus, this court must concur with the conclusion of the state court that this claim lacks arguable merit.
Next, Gregory claims that trial counsel was ineffective for deferring his opening statement. The Superior Court concluded that deferring his opening statement was a tactical decision designed to permit defense counsel the opportunity to refute all of the Commonwealth's evidence; and therefore, this decision was made to reasonably effectuate Gregory's interests. Commonwealth v. Gregory, No. 1732 Philadelphia 1995 at 11-12 n. 5. Gregory has failed to establish how this strategical decision by trial counsel was unreasonable or how it prejudiced him. In the absence of such an offer of proof, this court cannot find that the state court's determination was objectively unreasonable. Werts, 228 F.3d at 204.
Gregory also asserts that trial counsel was ineffective for "conceding in his own opening statement delivered at the close of the Commonwealth's case, that the Commonwealth had proved [in] their case-in-chief all that they had intended to prove." The Superior Court found as follows:
. . . Gregory bases his argument upon the following remark by trial counsel: "The Commonwealth has rested its case and that means that they have proved to you what they intend to prove in their case-in-chief." Contrary to Gregory's assertion, however, a review of trial counsel's opening statement reveals that trial counsel argued that the Commonwealth's case was just a story, that Gregory was presumed innocent, and that the jurors should not form an opinion until they had heard defendant's case. The plain meaning of trial counsel's statement upon which Gregory relies is not an admission of proof, but rather an attestation that the Commonwealth fell short of its burden of proof. When placed in its proper context, this remark tends to favor defendant, not hinder him. Consequently, we find that trial counsel was attempting to effectuate his client's interests and that Gregory was not prejudiced.Commonwealth v. Gregory, No. 1732 Philadelphia 1995 at 11-12. Accepting these facts as found by the state court in absence of clear and convincing evidence to the contrary, this court cannot conclude that the state court's determination is objectively unreasonable. Werts, 228 F.3d at 204. Early, 537 U.S. at 11 (§ 2254(d) requires "that decisions which are not `contrary to' clearly established Supreme Court law can be subjected to habeas relief only if they are not merely erroneous, but `an unreasonable application' of clearly established federal law, or based on `an unreasonable determination of the facts.'") (emphasis in original).
Gregory also asserts several claims of ineffective assistance of counsel that were summarily rejected by the Superior Court. Specifically, the Superior Court rejected Gregory's claims that trial counsel was ineffective for failing to: a) request limiting instructions when offered by the trial court following the prosecutor's opening statement; b) request limiting instructions when offered as to the testimony of homicide detective Jeff Piree regarding his observation of the body of Tanesha Robinson and two other young women discovered shot to death; c) introduce a pre-trial signed statement given by Tanesha Robinson; d) object to Commonwealth evidence that was irrelevant, immaterial, and highly prejudicial; and e) make any request for inspection of a copy of an order precluding the use of James Buigi's statement and precluding the defense from being informed of the intended testimony of Terrence Richardson.
Each of these claims were rejected by the Superior Court because Gregory failed to "present any legal argument or relevant case law and facts to support the claims." Relying on state law, the Superior Court held that the claims were not properly raised.Commonwealth v. Gregory, No. 1732 Philadelphia 1995 at 16 n. 8. (citing Commonwealth v. Baker, 614 A.2d 663, 673 (Pa. 1992) (`generalized claims of ineffectiveness raised in a vacuum must be rejected"); Commonwealth v. Sanford, 445 A.2d 149 ( Pa. Super. 1982)).
It is well-settled that a federal court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."Coleman, 501 U.S. at 729. In his original petition, Gregory fails to address this default or establish cause and prejudice resulting from the state court's disposition of these claims or demonstrate that the failure to consider these claims would result in a fundamental miscarriage of justice. In his amended petition, Gregory contends that PCRA counsel was ineffective for failing to pursue these claims. As previously discussed, this claim was never presented in the state court and the ineffectiveness of PCRA counsel is not cognizable on habeas review. Murray, 477 U.S. at 489; Finley, 481 U.S. at 557. Accordingly, this court is constrained to find that each of these claims of ineffective assistance of counsel is procedurally defaulted and not subject to federal habeas review.
Gregory's next claim concerns the ineffective assistance of trial counsel for failing to request a limiting instruction advising the jury that witness James Buigi's testimony was admissible only against Gregory's co-defendant. At trial, co-defendant Sheldon Hannibal was cross-examined with a statement made by Buigi in which Buigi alleged that Hannibal had made statements to him implicating Gregory in the crime. Gregory alleges that the use of these statements violated his rights under the Confrontation Clause of the Sixth Amendment.
The Superior Court rejected this claim finding as follows:
Gregory also argues that the Commonwealth's use of statements elicited by James Buigi concerning conversations that Buigi had with Gregory's co-defendant, Hannibal, should have been inadmissible because admitting the statements violated the Confrontation Clause of the Sixth Amendment. See Bruton v. U.S., 391 U.S. 123 (1968) (co-defendant's unredacted out-of-court statements implicating defendant are inadmissible when co-defendant fails to testify). Where a co-defendant testifies and is subject to cross-examination, however, the Confrontation Clause of the Sixth Amendment does not bar out-of-court statements made by that co-defendant. See Commonwealth v. Wheeler, 645 A.2d 853 (Pa.Super. 1994) (prosecutor permitted to refer to co-defendant's out-ofcourt statements where co-defendant testified and was subject to crossexamination). Here, co-defendant Hannibal testified, and was subject to crossexamination. Because Hannibal specifically testified that he never made any statements to James Buigi, the Commonwealth was, therefore, permitted to question Hannibal concerning statements that he made during cross-examination. This argument, therefore, must also fail.Commonwealth v. Gregory, No. 1732 Philadelphia 1995 at 14 n. 7. Once again this court must accept the facts as found by the state court in the absence of clear and convincing evidence to the contrary. Having done so, this court cannot conclude that the state court's rejection of this claim of ineffective assistance of counsel is objectively unreasonable. Counsel cannot be deemed ineffective for failing to raise a meritless claim. Werts, 228 F.3d at 203.
Having carefully considered each of Gregory's claims, this court finds that Gregory has failed to establish a claim that would require federal habeas corpus relief. Therefore, this court makes the following:
RECOMMENDATION
AND NOW, this __ day of January, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. It is also RECOMMENDED that a certificate of appealability not be granted.