Opinion
Civil Action No. 04-2577.
September 24, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254. The Petitioner, Robert Riley ("Petitioner"), is currently incarcerated at the State Correctional Institution in Dallas, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response, the Traverse, and all attachments to those pleadings.
Petitioner pled guilty to criminal trespass and simple assault on March 8, 1998, and was sentenced to nine to twenty-three months in prison, to be followed by three months of probation. Petitioner appeared for violation of probation hearings on May 4, 2000, and May 8, 2000, for continued prohibited contact with his wife. The trial court did not revoke Petitioner's probation, but rather warned Petitioner to stay away from his wife. On September 25, 2001, Petitioner appeared for a third probation violation hearing, and the trial court revoked his probation and sentenced him to five to ten years' imprisonment. Petitioner did not file a post-sentence motion or a direct appeal.
Petitioner filed an untimely pro se petition under the Pennsylvania Post Conviction Relief Act ("PCRA") on January 9, 2002. See 42 Pa. C.S.A. § 9541, et seq. Counsel was appointed, and filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), advising Petitioner and the PCRA court that there was no merit to the issues in Petitioner's PCRA petition. The PCRA court granted counsel's request to withdraw, and dismissed the petition on November 6, 2002. See Resp., Ex. A, p. 2. Petitioner appealed the dismissal to the Pennsylvania Superior Court, arguing that: (1) "he was denied due process because the lower court did not conduct a hearing under Gagnon prior to the revocation of his probation"; and (2) "the [trial] court's September 25, 2001 sentence was excessive because it was more severe than the sentence which was originally imposed." Id. at 1. On December 3, 2003, the Superior Court affirmed the dismissal of the PCRA petition, holding that Petitioner had waived both of his claims before the Superior Court by failing to raise them on direct appeal. Id. at 3-4; Commonwealth v. Riley, 844 A.2d 1287 (Pa.Super. 2003) (table). The Pennsylvania Supreme Court denied the petition for allowance of appeal on June 2, 2004. Commonwealth v. Riley, 852 A.2d 312 (Pa. 2004) (table).
Petitioner filed the instant Petition on June 14, 2004. On June 24, 2004, this case was referred by the Honorable Bruce W. Kauffman for preparation of a Report and Recommendation. The Response was filed on September 10, 2004, and on September 20, 2004, Petitioner filed a Praecipe/Request. The Petition before this Court seeks a determination of the following issues: (1) Petitioner was denied due process when he did not receive notice of probation violations until the date of his probation revocation hearing sixty days after a detainer was lodged for his failure to report to his probation officer (Pet., p. 9); and (2) Petitioner's sentence was illegal because his convictions were for criminal trespass, a class 2 felony, and simple assault, a class 2 misdemeanor. (Id. at 9-10.) Respondents contend that each of these claims is procedurally defaulted and not entitled to federal habeas review.
II. DISCUSSION.
The Pennsylvania Superior Court declined to review both of Petitioner's claims because he failed to raise them on direct appeal and did not properly develop them in his brief, and therefore the Superior Court held that the claims were waived. See 42 Pa. C.S.A. § 9544(b) (providing that "an issue is waived if the petitioner could have raised it but failed to do so."); Resp., Ex. A, pp. 1-2 n. 2 (citing Commonwealth v. Miller, 721 A.2d 1121 (Pa.Super. 1998) (declining to address undeveloped issues in brief and indicating that Superior Court will not act as appellant's counsel)); Id. at 3 (citing Commonwealth v. Marshall, 571 Pa. 289, 812 A.2d 539 (2002) (holding due process is waived if it could have been raised on direct appeal but was not) and Commonwealth v. McGriff, 638 A.2d 1032 (Pa.Super. 1994) (holding discretionary aspect of sentencing claim is waived if not raised on direct appeal)). This Superior Court decision was based entirely on state law, and Respondents argue that it constituted an adequate and independent state ground pursuant toSistrunk v. Vaughn, 96 F.3d 666, 674 (3d Cir. 1996), in which the Third Circuit held that a waiver provision under the PCRA constituted an independent and adequate state ground. The United States Supreme Court has held that federal courts should not take up a question of federal law presented in a case "if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Lee v. Kemna, 534 U.S. 362, 375 (2002) (quotingColeman v. Thompson, 501 U.S. 722, 729(1991)). The rule applies whether the state-law ground is substantive or procedural. Id. Thus, this Court should not review Petitioner's claims on the basis of comity between federal and state courts.
To the extent that Petitioner alleges that he was denied due process and equal protection in sentencing, his claim is defaulted and is not entitled to review in this Court unless Petitioner can show that the default should be excused. Federal courts may review a claim, notwithstanding its procedural default, only where a petitioner "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 claims would result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Petitioner argues in his Traverse that he did not waive his rights to appeal by not filing a direct appeal, and that allegations of an illegal sentence can be raised on appeal any time that a timely appeal is pending concerning other issues in the case. Petitioner wholly ignores the Superior Court's holding that Petitioner waived his issues by not filing a direct appeal. Petitioner also advances the argument that the Superior Court misapplied the waiver provision of the PCRA. See Mem. Law in Supp. Pet. at 3. However, as Respondents correctly note, this argument cannot excuse Petitioner's procedural default since, according to Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), "it is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions." Moreover, because Petitioner fails to allege cause for his default, this Court is precluded from reviewing his defaulted claims. Teague v. Lane, 489 U.S. 288, 298 (1989).
For all of the above reasons, I make the following:
RECOMMENDATION
AND NOW, this day of September, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED with prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.