Opinion
CIVIL ACTION NO. 02-5758
October 1, 2003
REPORT AND RECOMMENDATION
Presently before the Court are a pro se Petition and Amended Petition for Writ of Habeas Corpus filed by the Petitioner, Thomas Robinson ("Petitioner"), pursuant to 28 U.S.C. § 2254. The Petitioner is currently incarcerated in the State Correctional Institution at Graterford. For the reasons that follow, it is recommended that the Petition and the Amended Petition be denied and dismissed without an evidentiary hearing.
This information is taken from the Petition and the Amended Petition for Writ of Habeas Corpus, the Responses thereto, and all attachments to those pleadings.
On November 8, 1996, following a jury trial before the Honorable Joseph A. Smyth in the Court of Common Pleas of Montgomery County, Pennsylvania, the Petitioner was convicted of first degree murder, recklessly endangering another person, and possession of instruments of crime ("PIC"). Petitioner was sentenced on November 8, 1996 to life imprisonment for the first degree murder conviction, two years probation to run concurrently to the life sentence for the reckless endangerment conviction, and five years probation to run concurrently to the life sentence for the PIC conviction. Petitioner, through his counsel, filed a Notice of Appeal to the Pennsylvania Superior Court on December 3, 1996. On December 10, 1996, Judge Smyth issued an order for a concise statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On May 30, 1997, Judge Smyth issued a Memorandum Opinion addressing the issues raised by Petitioner. (Resp., Ex. G.)
On July 20, 1997, Petitioner's attorney filed a brief with the Superior Court claiming the following errors: (1) the trial court erred in denying appellant's motion to suppress his statements to police which were unlawfully obtained because appellant did not voluntarily waive his right to remain silent and to be represented by counsel; (2) the trial court's admission of four color photographs of the victim's body was reversible error; and (3) the trial court erred in admitting into evidence out-of-court statements attributed to the murder victim regarding alleged prior bad acts by the appellant. On May 5, 1998, the Pennsylvania Superior Court affirmed Petitioner's sentence. On August 24, 1998, Petitioner filed a pro se allocatur petition nunc pro tune with the Pennsylvania Supreme Court, which was denied on January 6, 1999.
On March 27, 1999, Petitioner filed a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA").See 42 Pa. C.S.A. § 9541. Counsel was appointed, and on October 26, 1999, filed a "no merit" letter pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). On November 17, 1999, the PCRA court issued a notice of intent to dismiss the PCRA petition without a hearing. On December 7, 1999, the PCRA court dismissed the petition.
On December 17, 1999, petitioner filed a notice of appeal with the Pennsylvania Superior Court. On December 14, 2000, the Superior Court remanded the case to the PCRA court for failure to submit an adequate opinion. On January 25, 2001, petitioner filed a petition for an evidentiary hearing. On May 15, 2001, Judge Smyth dismissed the PCRA petition, and on May 16, 2001, Judge Smyth dismissed the request for an evidentiary hearing. Petitioner filed his notice of appeal with the Pennsylvania Superior Court on May 30, 2001, and on November 19, 2001, the Superior Court affirmed the PCRA court's dismissal of the PCRA petition. Commonwealth v. Robinson, 792 A.2d 618 (Pa.Super. 2001) (Table). Petitioner's Petition for Allowance of Appeal with the Supreme Court of Pennsylvania was denied on July 10, 2002.Commonwealth v. Robinson, 805 A.2d 522 (Pa. 2002) (Table).
On July 22, 2002, Petitioner filed the instant pro se Petition for Writ of Habeas Corpus. Petitioner claims that his constitutional rights to due process and equal protection were violated when: (1) the lower court denied him an evidentiary hearing or any form of relief; (2) the lower courts arbitrarily accepted PCRA counsel's improperly filed Finley letter; (3) trial counsel failed to object to the improper introduction of prior bad acts; (4) direct appeal counsel failed to file an allowance of appeal to the Pennsylvania Supreme Court; (5) trial counsel failed to provide effective representation envisioned under the Sixth and Fourteenth Amendment of the United States Constitution; (6) trial counsel failed to object to the prosecutor's expert witness testifying to legal conclusions of law; (7) trial counsel failed to object to numerous improper remarks made by the prosecutor during closing summation; (8) trial court improperly allowed hearsay testimony of prior bad acts; (9) trial court improperly admitted and published to the jury inflammatory photographs of the victim's body; (10) trial court failed to suppress the Petitioner's incriminating statement that was illegally obtained. (Pet. at 9-11.) Respondents contend that these claims should be dismissed because they are meritless or procedurally barred.
Petitioner also filed a Motion to Amend his Petition, which this Court granted. In his Amended Petition, Petitioner alleges that his Sixth and Fourteenth Amendment rights were violated because his jury pool did not represent a fair cross-section of the community. (Mot. Am. Pet. at 1-3.) Petitioner also alleges that his trial counsel was ineffective for failing to object to a jury pool which did not represent a fair cross-section of the community, thus depriving Petition of "a fundamental fair and impartial jury." (Supp. Br. for Habeas Corpus at 6-9.) Respondents reply that these claims are procedurally defaulted and that they lack merit.
II. DISCUSSION.
A. Petitioner's Claim that the PCRA Court Unconstitutionally Denied Him an Evidentiary Hearing.
Petitioner first claims that the Pennsylvania Superior Court and the PCRA court erred when they denied him an evidentiary hearing. He points to the Superior Court's remand of his case to the PCRA court to support his contention that PCRA counsel agreed that his claims have merit. Petitioner contends that, since PCRA counsel, the PCRA court, and the Superior Court all agreed that some of Petitioner's claims had merit, an evidentiary hearing should have been held to further establish the record as to how constitutional violations he alleges occurred during his jury trial prejudiced him. Respondents reply that the Petitioner fails to cite any federal law or elaborate on which, if any, clearly established federal law has been unreasonably applied or what unreasonable determination of the facts has been made on this issue. Respondents also note that the PCRA is a state law and is not a cognizable federal claim, therefore this Court may not address it. Finley, supra.
Because Petitioner failed to develop the factual basis for this claim in state court, he is not now entitled to an evidentiary hearing in this Court unless he can overcome the barriers posed by 28 U.S.C. § 2254 (e)(2)(A) and (B). Because he does not suggest that he is able to make the requisite showing, his request for an evidentiary hearing should be denied.See Abu-Jamal v. Horn, No. 99-5089, 2001 WL 1609690, at *114 (E.D. Pa. Dec. 18, 2001).
Section 2254 provides:
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254.
Further, the Pennsylvania Superior Court addressed this issue in its November 19, 2001 decision, attached to the Response as Exhibit b. The court stated that "[i]nitially, we note that a petitioner is not entitled to a hearing if the PCRA court concludes that the issues raised in the petition are without merit," and the court quoted the following fromCommonwealth v. Jordan, 2001 PA Super. 111, 112:
The right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Granberry , 644 A.2d 204, 208 (Pa.Super. 1994). A PCRA court may decline to hold a hearing if the petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Id. A reviewing court on appeal must examine each of the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and denying relief without an evidentiary hearing. Commonwealth v. Hardcastle, 701 A.2d 541, 542 (Pa. 1997).
Resp., Ex. Vol. III b at 4-5. The court went on to examine the issues raised by Petitioner and found that the PCRA court properly dismissed Appellant's petition without a hearing. Id. at 12. Accordingly, this Court should not disturb this factual finding by the Superior Court.
B. Petitioner's Ineffectiveness of PCRA Counsel Claim.
Petitioner next claims that the lower courts arbitrarily accepted PCRA counsel's improperly filed Finley letter. Respondents contend that Petitioner essentially asks this Court to find that PCRA counsel should have assisted him in presenting his PCRA petition. Petitioner contends that PCRA counsel was ineffective in failing to properly conduct an investigation before submitting the Finley letter. He states that PCRA counsel's actions and omissions deprived him of his federal and state constitutional rights. (Br. in Supp. Pet. at 13.)
The Sixth Amendment right to counsel does not extend to counsel in state collateral proceedings. Finley, supra. Thus, it is not within the province of this Court to decide issues of purely state law.Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). When an issue of procedural default arises, the federal court must determine whether the decision of the state court rested on "independent and adequate" state grounds. This requires us to determine if the Superior Court's decision rests on a basis "independent of the federal question and adequate to support the judgment" and whether the state procedural rule is "consistently or regularly applied." Jermyn v. Horn, 266 F.3d 257, 278 (3d Cir. 2001) (citations omitted).
As Respondents correctly note, ineffective assistance of PCRA counsel is not a cognizable federal claim because the PCRA is a state law and is not guaranteed by the Constitution, therefore counsel is not guaranteed. 28 U.S.C. § 2254(1); Finley. Petitioner's claim, therefore, fails.
C. Petitioner's Ineffectiveness of Trial Counsel Claims.
Petitioner makes various allegations of ineffectiveness of counsel. Petitioner's third claim is that his trial counsel failed to object to the improper introduction of prior bad acts. Petitioner's fourth claim is that his direct appeal counsel was ineffective for failing to file an allowance of appeal to the Pennsylvania Supreme Court. These claims are unexhausted because they were not raised before any state court, and these claims are also procedurally defaulted because any further PCRA petition would be time-barred. Thus, these claims cannot be examined by this Court. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (if highest state court has not ruled on the merits of the claims and would not now do so for procedural reasons, the claims are procedurally defaulted unless cause for the default and actual prejudice or a fundamental miscarriage of justice can be demonstrated).
Petitioner also alleges other instances of trial counsel ineffectiveness that he previously raised in his direct appeal: claim five, that trial counsel failed to provide effective representation envisioned under the Sixth and Fourteenth Amendments of the United States Constitution; claim six, that trial counsel failed to object to the prosecutor's expert witness testifying to legal conclusions of law; and claim seven, that trial counsel failed to object to numerous improper remarks made by the prosecutor during closing summation. Respondents contend that all of these claims are meritless, as held by the Pennsylvania Superior Court. Each claim is hereafter examined.
1. Petitioner's Claim for Ineffectiveness of Trial Counsel For Failure to Object to the Prosecutor's Expert Witness Testifying to Legal Conclusions of Law.
Petitioner first alleges that his trial counsel was ineffective for failing to object to the prosecution's expert witness' testimony to a legal conclusion of law. This claim was raised in Petitioner's direct appeal from his sentence, and the Pennsylvania Superior Court held that it was meritless. See Resp., Ex. Vol. III b. The Superior Court specifically stated that:
Next, Appellant claims that trial counsel was ineffective for failing to object to the testimony of the Commonwealth's expert pathologist who concluded that the wounds were not the result of an accidental stabbing.
. . .
Appellant argues that he was prejudiced by the improper conclusion. We disagree. First, the answer was not elicited and non-responsive to the following question posed by the prosecution: "Based on your analysis of the wounds, can you tell us anything about the order of the stab wounds." Id. Second, the trial court informed the jury that the expert was not capable of testifying to a legal conclusion. N.T. 11/4/96, at 154. Third, the trial court gave a proper jury instruction regarding the weight to be accorded to expert testimony. Furthermore, the expert witness's statement was nothing more than a recitation of a valid inference derived from the physical evidence. See Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086 (1998) (specific intent to kill may be inferred from defendant's use of deadly weapon on vital part of victim's body).Id. at 7-8.
Under Strickland v. Washington, 466 U.S. 668 (1984), counsel is presumed effective, and to prevail on an ineffectiveness claim, a petitioner "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'"Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Given this presumption, a petitioner must first prove that counsel's conduct was so unreasonable that no competent lawyer would have followed it, and that counsel has "made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687. In addition, a petitioner must prove prejudice. Id. In order to do so, the petitioner must demonstrate that "counsel's errors were so serious as to deprive [petitioner] of a fair trial, a trial whose result is reliable."Id. Thus, a petitioner must show 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." Id. at 694. Further, "[i]n making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law." Id. Moreover, such determination must be made in light of the "totality of the evidence before the judge or jury."Id. at 695.
The Third Circuit has cautioned that it is "only the rare claim of ineffectiveness of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." Beuhl v. Vaughn, 166 F.3d 163, 169 (3d Cir.),cert. dismissed, 527 U.S. 1050 (1999) (quoting U.S. v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)). Under the revised habeas statute, such claims can succeed only if the state court's treatment of the ineffectiveness claim is not simply erroneous, but objectively unreasonable as well. Berryman v. Morton, 100 F.3d 1089, 1103 (3d Cir. 1996) (citations omitted). Because counsel's decision to not object to the Commonwealth's expert witness' testimony as to legal conclusions of law was reasonable and not contrary to any United States Supreme Court precedent, Petitioner's first claim for ineffective assistance of counsel fails.
2. Petitioner's Ineffectiveness Claim Based Upon Trial Counsel's Failure to Object to Improper Remarks of the Prosecutor During Summation.
Petitioner also alleges that trial counsel was ineffective for failing to object to ten allegedly improper statements made by the prosecution during its summation. These claims were also raised on direct appeal and addressed by the Pennsylvania Superior Court. The Superior Court held that the comments "are inferences based upon evidence in the record and are permissible since when read as a whole, it is evident that these remarks constitute a fair characterization of the evidence and are based upon evidence of record." See Resp., Ex. Vol. III b at 10.
Because Petitioner's counsel did not object to these comments, Petitioner must show not only that counsel's conduct was improper, but also that it amounted to a constitutional deprivation. Petitioner must also show that the prosecutor's acts so infected the trial as to make his conviction a denial of due process. Greer v. Miller, 483 U.S. 756, 765 (1987) (citation omitted); Ramseur v. Beyer, 983 F.2d 1215, 1239 (3d Cir. 1992), cert. denied, 508 U.S. 947 (1993) (citations omitted) (stating court must distinguish between ordinary trial error, and egregious conduct that amounts to a denial of due process). Petitioner must show that he was deprived of a fair trial.Smith v. Phillips, 455 U.S. 209, 221 (1982).
Respondents argue that this standard is not met here because even if any of the statements would be deemed erroneous, the trial court instructed the jury that the speeches of counsel were not to be considered evidence. (Resp., Ex. Vol. III b at 9-10.) Because any prejudicial effect by a prosecutor's statements can be neutralized "by carefully instructing the jury `to treat arguments of counsel as devoid of evidentiary content,'" U.S. v. Retos, 25 F.3d 1220, 1224 (3d Cir. 1994) (quoting U.S. v. Somers, 496 F.2d 723, 738 (3d Cir. 1974)), the Superior Court's ruling that Petitioner's failure to object to the statement in the prosecutor's closing argument was not ineffective assistance of counsel was reasonable, and this claim should be denied. The Superior Court specifically stated:
Preliminarily, we note that it is difficult for us to perceive how Appellant was prejudiced in light of the overwhelming evidence presented at trial. See Commonwealth v. Carter, supra (where evidence of guilt is overwhelming, prosecutor's prejudicial remark will not constitute grounds for new trial). Moreover, the trial court instructed the jury that the speeches of counsel were not to be considered as evidence. Rather, the court explained that the jurors were to rely upon their recollection of the facts in evidence in reaching a conclusion as to the guilt or innocence of Appellant. See N.T. 11/8/96, at 222-223.
Specifically, Appellant refers to a portion of the prosecutor's summation dealing with the fact that the Commonwealth had presented evidence that the victim had suffered beatings at the hands of Appellant on prior occasions. The record supports this statement. Shandea Upchurch testified that the victim had called her after one episode where Appellant had hit her in the face and pushed her down to the ground. N.T. 11/7/96, at 13. Monika Cody testified that she witnessed Appellant choke and hit the victim and that she had called the police regarding this abuse on several occasions. Id. at 115. Officer John Grozinski testified that on one occasion, the victim told him that Appellant had hit her in the face and punched her in the back of the head while she was holding her child. N.T., 11/4/96, at 70-71. Numerous witnesses testified that the victim feared Appellant. N.T., 11/7/96, at 9, N.T., 11/8/96, at 42. Clearly, testimony presented at trial supports the prosecutor's summation with regard to this point.
Next, Appellant takes exception to a portion of the prosecutor's closing wherein she referred to the testimony of the Commonwealth's expert pathologist. The statement reminded the jury that the victim's stab wounds were inflicted on vital parts of her body and that the witness had testified that the wounds were not random and illustrated intent. The prosecutor told the jury that it could use that evidence in determining whether Appellant intended to kill the victim. While it may have been inappropriate for the prosecutor to remind the jury that a witness had testified as to intent, it is clear that the prosecutor was referring to facts introduced at trial and the proper inferences to be drawn from them. The statement was supported by evidence of record and is a correct characterization of the law. In any event, the court's curative instruction regarding an expert's inability to make conclusions of law coupled with the cautionary instruction regarding summation speeches would have been sufficient to erase any improper inferences from the minds of the jurors.
Therefore, since it is clear that Appellant's claims of ineffectiveness lack merit, the PCRA court properly dismissed Appellant's petition without a hearing.
Resp., Ex. Vol. III b at 9-12. This strategy not to object or request a curative instruction was therefore sound trial strategy, not ineffectiveness. See Strickland, 466 U.S. at 689 (stating petitioner must overcome presumption that challenged action was "sound trial strategy.")
Petitioner also contends that the Superior Court and the PCRA court only addressed two of the ten improper remarks made by the prosecutor during its closing summation. (Mem. Law in Supp. Pet. at 9.) Despite Petitioner's contention, the Superior Court did examine these additional remarks made by the prosecution, and held as follows:
We have reviewed the record and have determined that the ten prosecutorial statements with which Appellant takes umbrage are inferences based upon evidence in the record and are permissible since when read as a whole, it is evident that these remarks constitute a fair characterization of the evidence and are based upon evidence of record. We have chosen to address only two of the purportedly objectionable remarks. See Commonwealth v. Akers, 572 a.2d [sic] 746 ( Pa. Super. 1990) (appellate brief containing numerous issues leads to presumption that no merit exists).
Resp., Ex. Vol. III b at 10. Thus, Petitioner's claim fails.
D. Petitioner's Claims of Trial Court Error in Allowing Hearsay Testimony of Prior Bad Acts and Inflammatory Photographs.
Petitioner's next two claims are that the trial court erred in allowing hearsay testimony to be presented regarding prior bad acts committed by Petitioner (claim 8), and also improperly admitted and published to the jury inflammatory photographs of the victim's body (claim 9). Petitioner attempted to raise these issues on direct appeal and the Pennsylvania Superior Court held that he had waived them because he "failed to object to such cross-examination before the trial court."See Resp., Ex. Vol. II J at 10-18 (citing Commonwealth v. Griffin, 684 A.2d 589, 595 (Pa.Super. 1996) (stating failure to object at trial waives the claim on appeal)).
With respect to the photographs, although Petitioner contends that the Superior Court held that this issue was waived, a review of the Superior Court's decision reveals that the court actually stated:
[w]e could consider this claim waived for failure to properly specify the precise exhibits challenged on appeal. Nevertheless, because of the seriousness of the charge on which appellant was convicted, first degree murder, we shall address this issue in the interests of justice and in order to prevent any post conviction claim predicated on allegations of ineffective assistance by appellate counsel. See Commonwealth v. Hackman, 623 A.2d 350, 351 (Pa.Super. 1993), citing Commonwealth v. Byrd, 598 A.2d 1011, 1012-14 (Pa.Super. 1991) (in the interest of judicial economy, an appellate court may consider a waived claim lest it return to the court in the framework of an ineffective assistance of counsel claim).
Trial counsel challenged the admission of the Commonwealth's proposed photographic exhibits numbered Cl through C8, and President Judge Smyth conducted a sidebar inquiry. See N.T. 11/6/96 at 46-51. At the sidebar discussion, trial counsel withdrew his objection to Commonwealth Exhibit Cl. Id. at 46. In response to President Judge Smyth's query, trial counsel also withdrew his objection to Exhibits C4 through C8. Jd. at 51. Acquiescence in the trial court's decision to admit evidence results in waiver of any challenge to the admissibility of that evidence on appeal. Commonwealth v. Griffin, 684 A.2d 589, 595 (Pa.Super. 1996). Thus, we possess no basis on which we could grant relief as to Exhibits Cl, C4, C5, C6, C7, or C8.
Resp., Ex. Vol. II J at 11-12.
Federal courts may review a claim, notwithstanding its procedural default, only where the 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. First, Petitioner does not allege cause and prejudice, therefore the procedural defaults cannot be excused on this basis. Teaque v. Lane, 489 U.S. 288, 298 (1989) (holding that petitioner's failure to allege cause for his default precluded federal habeas review of defaulted claim). Secondly, Petitioner has not shown that he is actually innocent, a requirement of the fundamental miscarriage of justice argument from a failure to consider the defaulted claims. Schlup v. Delo, 513 U.S. 298, 327 (1995). Thus, it would be inappropriate for this Court to review this claim.
Similarly, the Superior Court also examined whether the trial court should have admitted the testimony of prior bad acts. The court stated:
We agree with the trial court that the hearsay statement repeated by Officer Grozinski falls within the category of "excited utterance" and therefore was admissible under an exception to the hearsay rule.
. . .
In this case, Ms. Cody's statement described a startling event in which she participated personally, i.e., being smacked in the face and punched in the head by her paramour. Furthermore the event occurred just prior to the time when she spoke with Officer Grozinski. We therefore have no difficulty endorsing the trial court's conclusion that Ms. Cody's statement falls within the excited utterance exception.
The next question is whether the hearsay statement should have been admitted at appellant's trial for murder. Appellant contends that it should have been excluded on the grounds that it was evidence of a prior bad act that had nothing to do with the murder case. Thus, the focus of our inquiry on this point is whether the statement was relevant and probative of the matter before the jury.
. . .
In the present case, the trial court held that the hearsay statement was admissible to explicate for the jury the nature of the relationship between appellant and Ms. Cody. Trial Court Opinion, supra, at 7-8.
. . .
Our careful scrutiny of the trial transcript has convinced us that the trial judge correctly interpreted Pennsylvania law concerning the admission of evidence, and further that he committed no abuse of discretion in admitting the challenged testimony to explicate the nature of the relationship between appellant and his victim.
. . .
In the present case, the evidence against appellant included his confession to the killing. See N.T. 11/7/96 at 204-211 (wherein Detective Metz read appellant's statement into the record). Furthermore, the victim's sister, Monicka Cody, testified as an eyewitness to the events that transpired between appellant and the victim immediately preceding the killing. Jd. at 70-157. In light of this overwhelming evidence of appellant's guilt, we could not grant any relief, even if we had concluded that the trial court erred in admitting Officer Grozinski's testimony concerning the altercation between appellant and the victim in 1994.
Resp., Ex. Vol. II J at 16-21. Because the Superior Court's findings in this regard were not an unreasonable determination of the facts in this case, this claim should be denied.
E. Petitioner's Claims of Trial Court Error in Failing to Suppress the Petitioner's Incriminating Statement Illegally Obtained.
Petitioner's next claim is that the trial court erred in failing to suppress an incriminating statement which Petitioner also alleged was that the statement was illegally obtained. As Respondents correctly note, in evaluating the suppression of a confession, this Court must determine if the confession was voluntary, and the question of voluntariness is determined by employing a totality of the circumstances analysis. Arizona v. Fulminante, 499 U.S. 279, 285-286 (1991). In this regard, the state courts' factual findings are to be accorded a presumption of correctness "which the petition can overcome only by clear and convincing evidence." Matteo v. Superintendent, SCI Albion, 171 F.3d 887, 889 (3d Cir.), cert. denied, 528 U.S. 824 (1999); 28 U.S.C. § 2254(e)(1). The Superior Court stated that:
[w]e are cognizant of the fact that, in the present case, appellant testified before the suppression court that he requested an attorney prior to and during the police interview. [N.T. 9/24/96, Suppression Hearing,] at 36-40. This evidence is in direct contrast to Detective Metz's testimony that appellant did not ask for an attorney and voluntarily gave a statement after waiving his right to an attorney. Jd. at 14-22. We are also aware that appellant's version of the manner in which the interrogation was conducted differs substantially from the testimony of Detective Metz. However, our Supreme Court has unequivocally held that the fact-finding function, including the determination of the weight and credibility to be accorded to testimony, is solely for the suppression court. Commonwealth v. Hughes, 521 Pa. 423, 441, 555 A.2d 1264, 1273 (1989). If the suppression court's factual findings are supported in the record, the Superior Court is bound by those findings. Commonwealth v. Frank, 595 A.2d 1258, 1259 (Pa.Super. 1991). In the present case, our careful review of the transcript from the suppression hearing has convinced us that President Judge Smyth's factual findings are properly supported.
Resp., Ex. Vol. II J at 8-9. In this case, Petitioner has not presented any clear and convincing evidence to rebut the factual findings by the suppression court and the trial court. As such, this claim fails.
F. Whether Petitioner's Sixth and Fourteenth Amendment Rights Were Violated by the Jury Selection Process.
In his Amended Petition, Petitioner alleges that his Sixth and Fourteenth Amendment rights were violated because his jury pool did not represent a fair cross-section of the community. (Mot. Am. Pet. at 1-3.) Petitioner also alleges that his trial counsel was ineffective for failing to object to a jury pool which did not represent a fair cross-section of the community, thus depriving Petition of "a fundamental fair and impartial jury." (Supp. Br. for Habeas Corpus at 6-9.) Respondents reply that these claims are procedurally defaulted and that they lack merit.
Respondents contend that this case, contrary to
Petitioner's contentions, does not give rise to a Batson issue as there are no allegations of peremptory challenges made excluding members of the jury pool solely on the basis of race. See Batson v. Kentucky, 476 U.S. 79 (1986). Moreover, they note that in order for Petitioner to make out a prima facie case that Montgomery County's jury pool selection system violates the Sixth Amendment's fair cross-section requirement, he must show that:
(1) the group allegedly excluded is a distinctive group in the community; (2) representation of this group in the pool from which juries are selected is unfair and unreasonable in relation to the number of such persons in the community; and (3) the under-representation is due to systematic exclusion of the group in the jury selection process.Commonwealth v. Lopez, 559 Pa. 131, 149 (Pa. 1999),cert. denied, 530 U.S. 1206 (2000) (citing Duren v. Missouri, 439 U.S. 357, 364 (1979). Respondents claim that Petitioner does not establish either parts one or two of this required test because he has not demonstrated that the jury selection process in Montgomery County is unreasonable in relation to the racial breakdown of the community nor that Montgomery County systematically excludes minorities. Id. at 538.
The first time that this issue was raised by Petitioner was in the Amended Petition before this Court. Petitioner never asserted his claim of an unconstitutional jury selection process before any state court. Because Petitioner must fairly present all his claims to the highest state court, he has procedurally defaulted this claim. Whitney v. Horn, 280 F.3d 240 (3d Cir. 2002); 28 U.S.C. § 2254(b). Further, Petitioner has shown no cause or prejudice, nor that there has been a miscarriage of justice in order to excuse the procedural default.Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996). At the time of Petitioner's jury trial and appeal, he was represented by counsel who did not raise any issue concerning the jury panel selected.
Any attempt by Petitioner to allege ineffective assistance of counsel to establish cause for the failure to present the improper jury panel issue would fail because Petitioner never before claimed that counsel was ineffective for failing to present the federal claim in state court. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (stating a claim of ineffective assistance "generally must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.")
For all of the above reasons, I make the following:
RECOMMENDATION
AND NOW, this ___ day of September, 2003, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus and the Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED and DISMISSED. There is no probable cause to issue a certificate of appealability.