Opinion
Civil Action No. 00-CV-6402.
March 23, 2004
REPORT AND RECOMMENDATION
Before this court is a pro se petition for a writ of habeas corpus filed by a state prisoner, Frank Jones, pursuant to 28 U.S.C. § 2254. Jones is currently incarcerated at the State Correctional Facility in Frackville, Pennsylvania. For the reasons set forth below, this court recommends that the petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On November 1, 1989, Jones was convicted of aggravated assault, possession of an instrument of crime ("PIC"), and five counts of robbery, following a jury trial in the Court of Common Pleas of Philadelphia County. These charges arose from a series of gunpoint robberies and a shooting committed by Jones in the early morning hours of May 28, 1988. Jones was sentenced to an aggregate term of twenty (20) to sixty (60) years' imprisonment. The Superior Court affirmed judgment of sentence in a memorandum opinion dated June 4, 1991. Commonwealth v. Jones, 596 A.2d 252 (Pa.Super. 1991). Jones did not seek allocatur.
On July 27, 1994, Jones filed a petition for collateral relief pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541, et seq. Counsel was appointed and filed a no merit letter and motion to withdraw. PCRA counsel asserted that all of Jones's claims had been previously litigated. The PCRA court dismissed the petition, and granted counsel's motion to withdraw. Jones filed a pro se appeal to the Superior Court. In a memorandum opinion filed October 28, 1996, the Superior Court found that it could not determine that Jones's claims had been previously litigated, and that PCRA counsel had not conducted a sufficient review of the merits of the PCRA petition. As a result, the case was remanded for further proceedings. Commonwealth v. Jones, 2704 Philadelphia 1995.
On remand, PCRA counsel filed a second no-merit letter setting forth his position that each claim was previously litigated, waived, or meritless. Once again, counsel was permitted to withdraw, and the PCRA petition was dismissed. On appeal, the Superior Court affirmed the order of the PCRA court dismissing Jones's petition in a memorandum opinion. Commonwealth v. Jones, 742 A.2d 1145 (Pa.Super. 1999). On December 14, 1999, the Supreme Court of Pennsylvania denied allocatur. Commonwealth v. Jones, 749 A.2s 467 (Pa. 1999).
On December 18, 2000, Jones filed a petition for a writ of habeas corpus. Thereafter, Jones informed the court that he wished to voluntarily withdraw his petition, and on March 1, 2001, the District Court dismissed the petition without prejudice. On September 22, 2002, Jones filed a Supplemental Amendment to his petition. The District Court denied Jones's motion to amend his previously dismissed petition. Although it does not appear on the docket, Jones provided the court with a copy of a petition dated April 21, 2001, that he asserts was filed at that time. On May 20, 2003, the District Court vacated its prior order, and reinstated Jones's petition raising the following claims of ineffective assistance of counsel for failing to: 1) request the appointment of new counsel to file an allocatur petition on direct appeal; 2) call exculpatory witnesses; 3) bring out the ownership of the gun; 4) bring to the jurors' attention that the shoe was too big; 5) object to the admission of his prior convictions if he took the stand; 6) call as a defense witness Earl Ross; 7) introduce into evidence Jones's personal invitation to the Web Club; 8) call as defense witnesses other individuals who were present with Jones at the Web Club; 9) insert his fingers into the back of the shoe to show the jury it did not fit Jones; 10) call as a witness the male whose automobile had been broken into outside the After Midnight Club; 11) produce the officer who appeared at the After Midnight Club the morning prior to Officer Morley; 12) investigate other evidence that would establish prior episodes of vandalism and theft; 13) call as a witness the police mechanic who recognized a picture of Jones; and 14) tell Jones to have a jury trial (resulting in a larger fee to counsel). Jones also raises two due process claims: 15) insufficiency of the evidence; and 16) lack of evidence to support the charge of the robbery of Darryl Dale. In its response, the Commonwealth asserts that Jones has failed to present a claim that provides a basis for federal habeas corpus relief.
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. Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). 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 to be eligible for federal habeas relief, Jones 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 Early v. Packer, 537 U.S. 3, 10-11 (2002) (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, 466 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 reasonable 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. See Woodford v. Viscotti, 537 U.S. 19, 24-25 (2002) (". . . it is not enough to convince a federal habeas court that, in its independent judgment, the state court decision applied Strickland incorrectly."); see also Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000) (same). In addition, "counsel cannot be deemed ineffective for failing to raise a meritless claim." Id. at 203 (citing Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154 (1999)). Consequently, it is only the "rare claim" of ineffectiveness that should succeed.See Buehl v. Vaugn, 166 F.3d 163, 169 (3d Cir. 1999).
First, Jones claims that counsel on direct appeal was ineffective for failing to request the appointment of new counsel to file an allocatur petition. On direct appeal, Jones was represented by court-appointed counsel. According to a petition for extension of time to file a petition for allowance of appeal filed by counsel, counsel was unable to file a timely petition because of an operation on his left eye for a detached retina. He asked the Supreme Court of Pennsylvania to permit him an additional thirty days in which to file. This request was denied without further explanation. Jones raised this claim in his PCRA petition and on appeal from the denial of collateral relief. Although, the Superior Court did not specifically address this claim in its opinion, it did not grant relief on this basis.
At the time of his direct appeal, the Superior Court of Pennsylvania had held that counsel could not be found ineffective for failing to petition for allocatur where an appellant failed to establish that the Supreme Court would have exercised its discretion to review the issues raised. Commonwealth v. Tanner, 6000 A.2d 201, 205 (Pa.Super. 1991) (ineffectiveness claim based on appellate counsel's failure to notify appellant of his right to file a petition for allowance of appeal was not a cognizable claim under the PCRA because it did not bear on appellant's guilt or innocence); Commonwealth v. Byrd, 657 A.2d 961, 962 (Pa.Super. 1995) (appellant not entitled to PCRA relief for appellate counsel's failure to raise certain issues in a petition for allowance of appeal because appellate counsel reviewed the record and determined that those issues were meritless). Here, having concluded that Jones was not entitled to collateral relief because his claims were without merit, it can be inferred that the Superior Court did not find appellate counsel ineffective for failing to file a petition for permission to appeal. Jones's petition for allowance of appeal to the Pennsylvania Supreme Court was denied.
However, in June 2003, well after state court review of the instant case had been completed, the Supreme Court of Pennsylvania considered whether the Superior Court erred in failing to reinstate an inmate's right to file a petition for allowance of appeal where counsel failed to file a requested direct appeal. In Commonwealth v. Liebel, 825 A.2d 630 ( Pa. 2003), the Pennsylvania Supreme Court held that, under Pennsylvania Rule of Criminal Procedure 122, the appellant was entitled to the assistance of counsel through his discretionary appeal to that court on direct appeal. Id. at 633. Having concluded that the appellant was entitled to counsel, the Court held that it was permitted to review an ineffectiveness claim based on counsel's failure to file the requested direct appeal, and that the petitioner was not required to establish his innocence or demonstrate the merits of the issues that would have been raised on appeal. Id. at 635. As a result, Liebel's petition for permission to appeal to the Supreme Court nunc pro tunc was granted.
The Pennsylvania Supreme Court's holding is based solely on state law and specifically notes that there is no federal constitutional right to counsel on a state petition for discretionary review. Id. at 633 (citing Ross v. Moffitt, 417 U.S. 600, 610 (1974); Evitts v. Lucey, 469 U.S. 387, 401 (1985)). Where there is no federal constitutional right to counsel, a claim of the ineffective assistance of counsel is not cognizable in a federal habeas proceeding. Finley v. Pennsylvania, 481 U.S. 551 (1987). Thus, this court must conclude that this claim does not provide a basis for federal habeas relief because the right to counsel on discretionary review is created by state, not federal law.
Next, Jones claims that trial counsel was ineffective for failing to call exculpatory witnesses. In the instant petition, Jones does not identify these potential witnesses, nor does he set forth the substance of their testimony or how it would have been exculpatory.
Where a petitioner contends that trial counsel was ineffective for failing to call a witness, he must establish that the witness was available to testify at the pertinent proceeding and identify the nature of his testimony. See, e.g., Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (petitioner cannot establish ineffective assistance of counsel for failure to call a witness in the absence of specific allegation or offer of evidence that testimony was forthcoming or available upon reasonable investigation); Lewis v. Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990) (prejudice prong of Strickland not established where petitioner did not establish that the testimony of a potential witness, whom counsel failed to interview, would have supported his claim of self-defense); United States v. Dawson, 857 F.2d 923 (3d Cir. 1988) (no relief where defendant did not allege that witnesses were ready to volunteer their testimony or that if called, they would have testified). Thus, this court would be constrained to find that Jones's claim is without merit.
However, this court has looked to the Superior Court's opinion on collateral appeal which reveals that Jones identified several allegedly exculpatory witnesses and his claim was rejected. In considering this claim, the Superior Court found as follows:
Appellant first contends that trial counsel was ineffective for failing to call a number of witnesses. Those witnesses include: 1) Earl Ross and the sister of Ross's wife, who would have testified about what clothing Appellant was wearing on the night in question; 2) Appellant's mother, whose testimony would have been "important to the facts that were testified to at trial;" and 3) unnamed witnesses from the Web Club, who allegedly saw Appellant that night.
To establish counsel was ineffective for failing to call a witness, the defendant must prove:
(1) the existence and availability of the witnesses; (2) counsel's awareness of, or duty to know of the witnesses; (3) the witnesses' willingness and ability to cooperate and appear on behalf of appellant; and (4) the necessity of the proposed testimony in order to avoid prejudice. A defendant must establish prejudice by demonstrating that he was denied a fair trial because of the absence of the testimony.
In the present case, Appellant has not alleged that trial counsel was made aware of these witnesses nor does he allege that the witnesses were available and willing to testify at trial. Finally, their testimony would have been cumulative to that presented at trial. Appellant had alibi witnesses regarding his presence at a club and a witness who testified that Appellant was wearing a black and red sweater on the day in question. Thus, the absence of their testimony could not have affected the outcome at trial. Finally, Appellant has failed to indicate what — "important" information his mother would have added at trial. Thus, we cannot determine if the absence of her testimony prejudiced Appellant, and Appellant has failed to meet his burden of proof.Commonwealth v. Jones, No. 4898 Philadelphia 1997 (slip op. at 7-8) [citations omitted].
In the absence of clear and convincing evidence to the contrary, this court accepts the factual findings of the state court. 28 U.S.C. § 2254(e). As set forth above, the state court concluded that Jones failed to establish that the witnesses were known to trial counsel and would have been available, or that the testimony would have been exculpatory or affected the outcome of the trial. In the instant petition, Jones does not present evidence or argument to show that Supreme Court precedent requires an outcome contrary to that reached by the state court, or that the state court's decision, when evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. Applying Strickland to the facts of this case, this court cannot conclude that the holding of the Superior Court was objectively unreasonable. Woodford, 537 U.S. at 24-25;Early, 537 U.S. at 11.
Jones also contends that trial counsel was ineffective for "failing to bring out the ownership of the gun." Again, Jones provides no facts or legal argument in support of this claim. The Superior Court opinion reveals that this claim was equally vague when raised in that Court.
The claim regarding ownership of the gun is too vague to support the award of a new trial. Appellant notes that the police never could trace who owned the gun. The fact that ownership of the gun could not be traced indicates that the gun was illegal. This fact would not have exonerated Appellant, and counsel was not ineffective for failing to present evidence on that issue.Commonwealth v. Jones, No. 4898 Philadelphia 1997 (slip op. at 9).
Under these circumstances, this court must find that Jones has failed to state a claim upon which relief can be granted. Not only is this claim too vague to meaningfully review, Jones has failed to establish that the holding of the state court is contrary to, or an unreasonable application of, clearly established Supreme Court law. Woodford, 537 U.S. at 24-25;Early, 537 U.S. at 11.
In both his fourth and ninth claims, Jones argues that trial counsel was ineffective for failing to bring to the jurors' attention the fact that the shoe found at the scene of the crime was too large for his foot. Jones contends that counsel should have done more, even placed his finger in the shoe to further demonstrate for the jury that the shoe did not fit. The Superior Court concluded that these claims were without merit because "the jurors were present when Appellant tried on the shoe; they were able to ascertain whether the shoe was too large. Counsel had no further function to fulfill in this regard." Commonwealth v. Jones, No. 4898 Philadelphia 1997 (slip op. at 9).
Accepting the factual finding of the state court, this court finds that these claims are baseless. Having the jurors witness Jones put the shoe on his foot in the courtroom to establish that the shoe did not fit was sufficient to bring this fact to their attention. Thus, this court must conclude that Jones has failed to establish that the holding of the state court is contrary to, or an unreasonable application of, clearly established Supreme Court law. Woodford, 537 U.S. at 24-25; Early, 537 U.S. at 11.
Jones further asserts that trial counsel was ineffective for "not objecting to bringing out petitioner's prior convictions if he took the stand" In state court, Jones asserted that he did not testify at trial because he would have been impeached by his prior criminal record. The Superior Court rejected this claim finding:
In the present case, defendant's prior conviction was for robbery, an offense involving dishonesty. The last day of confinement for that conviction was approximately twenty-two months before the trial date. It should also be noted that the defense had two alibi witnesses to testify to defendant's version of the events surrounding the incident and that two Commonwealth witnesses could not identify defendant at a line-up. Therefore, evidence of defendant's prior conviction was properly held admissible at trial.Commonwealth v. Jones, No. 4898 Philadelphia 1997 (slip op. at 11-12). Having concluded that the trial court properly ruled on the admissibility of this evidence, the Superior Court found that trial counsel had no basis to challenge it on appeal and was not ineffective for failing to do so. Id.
As with Jones's prior claims, this court accepts the factual findings of the state court, and again must conclude that Jones's claim is without merit. The Superior Court's determination that trial counsel could not be found ineffective for failing to raise a meritless claim is not contrary to, nor an unreasonable application of, clearly established federal law. Werts, 228 F.3d at 203.
Jones's sixth, seventh, and eighth claims concern his attempt to establish an alibi defense based on his attendance at an anniversary party the night of the crime. Jones asserts that trial counsel was ineffective for failing to: call Earl Ross as a witness to testify that he attended the anniversary party; introduce the personal invitation to the party; and call others who attended the party as defense witnesses. The trial court considered these claims and held as follows:
During post-trial motions, [Jones] testified as to the information Ross could have provided. This included the fact that [Jones] was at the party for Ross at the "Web Club" until approximately 2:00 a.m. The party was to continue at the After Midnight Club. [Jones] did not identify by name any of the other witnesses he claimed would testify regarding the party. Since the complainants testified that the criminal incidents occurred at approximately 4:30 a.m., the testimony of these witnesses and introduction of the party invitation would not have provided [Jones] with an alibi.Commonwealth v. Jones, Nos. 610-631, July Term, 1988 (slip op. at 25-26). Again, after considering the facts as found by the trial court, this court must agree that this additional testimony would not have been helpful to Jones's defense because it does not provide an alibi for the time the crimes occurred. On the contrary, it places him in the area of the crimes — near the After Midnight Club. Thus, he cannot show that counsel's inaction prejudiced his defense.
In his tenth and twelfth claims, Jones contends that trial counsel was ineffective for failing to call as a witness an unidentified male whose automobile had been broken into while it was parked outside the After Midnight Club on the night of this crime, and for failing to investigate evidence of other crimes of vandalism and theft that had occurred in the area.
The trial court rejected these claims, finding:
The next two alleged instances of ineffectiveness involve counsel's failure to call as a witness a person whose automobile was broken into on the morning in question, and failure to investigate if anything from defendant's automobile was found in those automobiles broken into and vice versa. "The failure of defense counsel to call a possible witness is not to be equated with a conclusion of ineffectiveness absent some demonstration that the testimony would have been helpful to the defense." Commonwealth v. Rhodes, 416 A.2d 1031, 1035 (1979) (citation omitted).
This court cannot understand defendant's preoccupation with these alleged other crimes. Defendant was not charged with breaking into automobiles. Further, defendant testified he never spoke to anyone whose automobile had been vandalized that morning. Defendant has failed to demonstrate how the testimony of this unidentified witness would have been helpful to his defense.Commonwealth v. Jones, Nos. 610-631, July Term, 1988 (slip op. at 26-27).
As with his prior claim that trial counsel was ineffective for failing to call unnamed exculpatory witnesses at trial, Jones fails to establish that any witness was available to testify, and known to trial counsel. He does not set forth the testimony that would have been introduced at trial. Zettlemoyer, 923 F.2d at 298; Lewis, 915 F.2d at 115. In the absence of such evidence, this court cannot conclude that the holding of the state court was objectively unreasonable. Woodford, 537 U.S. at 24-25;Early, 537 U.S. at 11.
In his eleventh claim, Jones asserts that trial counsel was ineffective for failing to call a police officer who arrived at the scene prior to Officer Morley, the police officer who testified at trial. In his thirteenth claim, Jones contends that trial counsel was ineffective for failing to call a police mechanic as a witness. Jones's fourteenth claim is that trial counsel was ineffective for telling Jones to have a jury trial in order to generate a larger fee. A review of Jones's brief on direct appeal reveals that these claims were raised in the trial court but were not raised on direct appeal in the Superior Court. Thus, the Commonwealth asserts that the claims are procedurally defaulted and not subject to federal habeas review.
If a petitioner has not "fairly presented his claims to the state court and no state avenue of relief remains available, the unexhausted claims may be deemed exhausted." Gray v. Netherland, 518 U.S. 152 (1996). In such cases, exhaustion is not possible because the state court would refuse on procedural grounds to hear the merits of the claims, and thus, any attempts to assert the claims would be futile. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see also Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996).
However, this does not automatically lead to a review of the merits by a federal court because the claims are then considered procedurally defaulted. Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 749 (1991) (federal review of such claims is precluded if the "prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule"). The petitioner must establish "cause and prejudice" or a fundamental miscarriage of justice for federal review of a procedurally defaulted claim. Id.; Doctor, 96 F.3d at 683.
Here, this court must conclude that there remains no avenue for state court review of these claims. Under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541 et seq., 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 this claim in the state court is clearly foreclosed.
These exceptions are as follows: I) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the C onstitution or laws of this Commonwealth or the Constitution or laws of the United States; ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Co urt of Pennsylvania after the time period provided in this section and has been held by that co urt to apply retroactively. 42 Pa. C.S.A. § 9545(b).
Where the highest state court has not, or will not, consider the merits of a petitioner's habeas claims because of a state procedural default, federal review is prohibited absent a showing of cause and prejudice or a miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Bousley v. United States, 523 U.S. 614, 622 (1999); Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-63 (1989). To show cause, Jones must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1986); Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). Once cause is established, Jones must also show that prejudice resulted from trial errors that "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Murray, 477 U.S. at 494. To establish the fundamental miscarriage of justice exception to the procedural default rule, Jones must demonstrate his "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").
Jones provides no explanation why these claims were not properly presented to the state courts as required to establish cause, nor has he offered evidence sufficient to establish a claim of actual innocence. He states no objective factor external to the defense as impeding counsel's efforts to comply with the State's procedural rule. Furthermore, Jones offers no reliable evidence to establish actual innocence. Under these circumstances, this court is constrained to find that these procedurally defaulted claims are not subject to federal habeas review.
In his motion to amend, Jones also asserts that trial counsel was ineffective for failing to permit him to testify on his own behalf. This claim was not included in his petition and has never been raised in state court. It is also procedurally defaulted and not subject to habeas review.
Finally, Jones asserts two due process violations: that the verdict was against the evidence, and that the evidence was insufficient to support the charge of robbery of Darryl Dale.
To the extent that this claim is raised as a challenge to the weight of the evidence, this court finds that such a claim is not cognizab le as it requires an assessment of the credibility of the evidence presented at trial and a state court's credibility determinations are binding on a federal court in a habeas proceeding. See Tibbs v. Florida, 457 U.S. 31 (1982) (weight of evidence claims raise questions of credibility);Miller v. Fenton, 474 U.S. 104, 114 (1985).
Again, this court looks to the trial court opinion for its findings with regard to the sufficiency of the evidence.
. . . Officer Morley testified the victims of the crime gave her a description of the perpetrator and automobile he was driving, including a partial license plate number. This information was broadcast over police radio. Sergeant Scherbin observed a male driving an automobile that fit the descriptions. The driver fled on foot following a chase through the center city area of Philadelphia. Based on the descriptions provided and evidence seized from the automobile used in the crime, Detective Duffy prepared a photographic array of approximately eight photographs, including one of the defendant. All biographical information appearing on the bottom of the photographs was covered by a piece of cardboard. Sergeant Scherbin positively identified defendant's photograph as being the male he chased on the morning in question.
Four of the five victims also testified at trial. Preyer admitted he did not identify defendant at a line-up but he explained he did not get a good look at the male who shot him. Rather, Preyer concentrated on the gun used by the shooter. Preyer identified the gun discarded by defendant as being the one the shooter used. Hughes also did not identify defendant at the line-up but positively identified the gun at trial. Williams did identify defendant at the line-up and estimated the criminal incident lasted about three minutes. Atkins also identified defendant at the line-up and reiterated at trial that he was "certain" defendant robbed him and his friends. Viewing the identification evidence in the light most favorable to the Commonwealth as verdict winner and drawing all reasonable inferences therefrom, this court concludes the evidence was sufficient to convict defendant beyond a reasonable doubt.Commonwealth v. Jones, Nos. 610-631, July Term, 1988 (slip op. at 23-24).
The standard of review for a sufficiency of the evidence claim is well-established. "[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court to `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 309, 318-19 (1979) (quoting Woodby v. INS, 385 U.S. 276, 282 (1966)). Rather, "[t]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have been found the essential elements of the crime beyond a reasonable doubt."Id. at 319 (emphasis in original).
Pursuant to this deferential standard of review, we cannot find that the state court's determination is either contrary to or an unreasonable application of federal law. In the absence of clear and convincing evidence to the contrary, this court accepts the factual findings of the state court and must conclude that the evidence was sufficient to support Jones's conviction.Woodford, 537 U.S. at 24-25; Early, 537 U.S. at 11.
Jones also contends that his conviction for the robbery of Darryl Dale was a violation of his due process rights because Dale did not attend the pre-trial line-up, preliminary hearing, or trial. The trial court concluded that there was nothing unfair about presenting this charge to the jury.
Both Commonwealth witnesses Gerald Williams and Richard Atkins testified that Dale was a victim of the robbery on May 28, 1988. Williams also testified that at the time of the trial, Dale was unable to testify because he was in the armed services and stationed in Japan. At no time during trial did the Commonwealth attempt to use any statements or testimony of Dale. Therefore, under [Commonwealth v.] Allen, [ 219 A.2d 1113 (Pa.Super. 1981) (Sixth Amendment right to confrontation extends only to witnesses whose testimony is presented and Commonwealth not obligated to call victim of crime as a witness)], defendant's Sixth Amendment right to confront his accuser was not violated.Commonwealth v. Jones, Nos. 610-631, July Term, 1988 (slip op. at 19).
Again, Jones does not present clear and convincing evidence that would cause this court to question the factual findings set forth above. In consideration of those facts, this court cannot find that the decision of the state court is contrary to or an unreasonable application of federal law.
Woodford, 537 U.S. at 24-25; Early, 537 U.S. at 11.
Having determined that the claims raised herein are without merit, this court makes the following:
RECOMMENDATION
AND NOW, this day of March, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. IT IS FURTHER RECOMMENDED that there is no probable cause to issue a certificate of appealability.