Opinion
Civil Action No. 04-3157.
October 27, 2004
MEMORANDUM AND ORDER
Petitioner, Mikey Miles ("Miles"), seeks habeas corpus relief under 28 U.S.C. § 2254. Miles was convicted of burglary and theft and is serving five to ten years imprisonment at the Curran-Fromhold Correctional Facility in Philadelphia, Pennsylvania. After a careful and independent review, this Court concludes Miles failed to raise any issues entitling him to relief. The Report and Recommendation of Magistrate Judge Jacob P. Hart is approved and adopted and Miles's objections are overruled.
FACTS AND PROCEDURAL HISTORY
Miles was convicted of burglary and theft after a jury trial before the Honorable Pamela Dembe on September 4, 2002. He was sentenced to five to ten years imprisonment, followed by a five year probationary period. Miles filed a timely appeal in which he raised thirteen separate issues. The Superior Court found all of Miles's claims waived for failure to present the claims in a 1925(b) statement, except for his challenge to the legality of his sentence. With regard to that claim, the Superior Court found the trial court erred in imposing a separate probationary sentence for Miles's theft conviction and the Superior Court vacated the judgment of sentence for theft. The Supreme Court of Pennsylvania denied allocatur on June 29, 2004. Commonwealth v. Miles, 853 A.2d 361 (Pa. 2003).
Pa.R.A.P. 1925(b) states:
(B) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of. Pa. R.A.P. 1925 (2004).
Miles's resentencing was delayed by his petition for allocatur in the Pennsylvania Supreme Court.
On July 6, 2004, Miles filed this petition pro se for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Miles raised the following fifteen issues, thirteen of which were found to be waived on direct appeal:
1. The verdict was against the weight of the evidence;
2. The prosecutor improperly referred to the defendant's failure to testify on his own behalf;
3. The Petitioner was denied the right to counsel and counsel was ineffective in failing to conduct investigation and discovery and failing to turn discovery materials over to pro-se defendant;
4. The trial court erred in conducting another trial at the same time the jury in Petitioner's case was deliberating;
5. The trial court erred in failing to give a cross-racial identification jury instruction;
6. The witness's identification testimony was inconsistent and unreliable;
7. The trial court erred in failing to acquit when there was insufficient evidence for conviction;
8. The trial judge erred by entering the jury room while deliberations were in progress;
9. The public defender badgered and harassed the Petitioner in order to convince him to enter into a plea bargaining agreement with the Commonwealth;
10. The trial court erred in denying Petitioner the right to appear at the arraignment;
11. The Clerk of Court erred in failing to docket pro se filings;
12. The Petitioners right to a speedy trial was violated;
13. The court erred in failing to advise Petitioner that he must file his appeal through the Public Defenders office;
14. The Criminal Appeals Unit erred in failing to file Petitioner's Notice of Appeal, instructing him the issues are unappealable; and
15. The trial court erred in imposing a sentence on a lesser included offense.
Magistrate Judge Hart's Report and Recommendation ("RR") concluded Miles's habeas petition presented only one viable claim, but that this claim was not presented to the Superior Court on direct appeal. The Magistrate Judge determined Miles's claim was unexhausted for habeas corpus purposes and Miles must comply with the exhaustion requirements of 28 U.S.C. § 2254(b)(1)(A)(2004) by presenting his claims under Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., which Miles has until June 29, 2005, to do.
28 U.S.C. § 2254(b)(1)(A) states:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State.
Miles filed timely objections to Magistrate Judge Hart's RR. Many of Miles's objections however, are vague and difficult to decipher. Miles appears to object on four grounds, the headings of which are reproduced verbatim below:
1. Non-cognizable claim — Objection
2. Unexhausted Claim — Dismiss unexhausted claim from original petition
3. Procedural Default — Objection
4. Dismiss Claim(s)
This Court reviews de novo those portions of the Magistrate Judge's Report and Recommendation to which Miles objects to. 28 U.S.C. § 636(b)(1) (2004)
DISCUSSION
In his first objection, entitled "Non-cognizable claim," Miles claims Magistrate Judge Hart improperly concluded that his first habeas claim (the verdict was against the weight of the evidence) is not cognizable in habeas corpus. As Magistrate Judge Hart's RR indicates, the federal court is bound by the credibility determinations of the state trial court. Demosthenes v. Baal, 495 U.S. 731, 735 (1983) ( citing Marshall v. Lonberger, 459 U.S. 422 (1983)). Federal courts lack the power to grant habeas corpus relief based on allegations the petitioner's state court conviction was against the weight of the evidence. Tibbs v. Florida, 457 U.S. 31, 42-45 (1982); Dickerson v. Vaughn 90 F.3d 87, 90 (3d Cir. 1996) (holding federal courts in habeas corpus cases must defer to the factual findings of state trial and appellate courts). The court finds, therefore, that Miles's first objection lacks merit.
Miles next objects to the Magistrate Judge's conclusion that Miles did not present his sixth claim (the witness's identification testimony was inconsistent and unreliable) to the Superior Court in his direct appeal as required by 28 U.S.C. § 2254(b)(1)(A). Miles argues further state litigation with regard to this claim would be futile and the court should dispense with the exhaustion requirement.
"Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the `opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Baldwin v. Reese, 124 S. Ct. 1347, 1349 (2004) ( citations omitted). The prisoner must present his claim in each appropriate state court, including a state supreme court with powers of discretionary review. Id. Miles did not present his witness identification claim to the Superior Court in his direct appeal. His failure to do so denied the state courts the opportunity to review and correct alleged violations of prisoner federal rights. Because Miles has not presented his witness identification claim to the state courts, he has not met the exhaustion requirements of 28 U.S.C. § 2254(b)(1)(A). Miles must exhaust his claim through Pennsylvania's Post Conviction Relief Act before this court can review his claim.
Miles's third objection relates to Magistrate Judge Hart's conclusion that the bulk of his claims are procedurally defaulted because he failed to include them in his "Statement of Matters Complained of on Appeal," as required by Pennsylvania Rules of Appellate Procedure. Miles argues he would be prejudiced by this court's refusal to review his procedurally defaulted claims and this court should hear the claim because he is actually innocent of the crime.
Pa. R.A.P. 1925(b) states:
"The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of."
Federal courts cannot conduct habeas review of procedurally defaulted claims, "unless the prisoner can demonstrate cause for the default and actual prejudice from the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). As noted in Magistrate Judge Hart's RR, Miles did not properly present his claims to the state appellate court, nor does he demonstrate how the court's failure to consider his claims will result in a miscarriage of justice.
To prove actual innocence, "a habeas petitioner must persuade the district court that, in light of . . . new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Sweger v. Chesney, 294 F.3d 506, 522-23 (3d Cir. 2002) ( citing Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002)). Miles offers no new evidence of his innocence, therefore this court has no basis upon which to find Miles actually innocent. Miles's objection regarding his procedural default is overruled. In the fourth objection, entitled "Dismiss Claims(s)," Miles requests the court to dismiss the following claims from his habeas petition:
a. Can a pro se defendant file notice of appeal after sentence had been pronounced without Judge instructing him that if he wants to file Notice of Appeal he must go through the Public Defender?
b. Can the criminal appeals unit not file defendant's notice of appeal and instruct him that his issues are unappealable and send a carbon copy to the trial judge?
It is irrelevant whether or not these claims are dismissed from Miles's habeas petition, as dismissal will have no effect on the outcome of his petition. The first claim Miles asks the court to dismiss was waived when Miles failed to present the claim to the Superior Court on direct appeal, as required by state law. Commonwealth v. Lord, 553 Pa. 415, 420 (1998). Federal courts may not consider the merits of a defaulted claim unless the petitioner shows the default should be excused due to prejudice or a fundamental miscarriage of justice. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). Miles offers no such evidence.
The second claim Miles asks the court to dismiss is an ineffective assistance of counsel claim. This claim has not been exhausted. Under Commonwealth v. Grant, Miles must first seek collateral review of this claim through the Pennsylvania Post Conviction Relief Act. Commonwealth v. Grant, 572 Pa. 48, 67 (2002). Accordingly, Miles's fourth objection is overruled and we enter the following:
ORDER
AND NOW, this 27th day of October, 2004, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and respondents' answer thereto, and after review of the Report and Recommendation of the United States Magistrate Judge Jacob P. Hart, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.