Opinion
4:09-cv-1686.
July 13, 2010
MEMORANDUM
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R R") of Magistrate Judge Thomas M. Blewitt (Doc. 14), filed on June 21, 2010, which recommends that the petition of Akeem R. Simmons ("Petitioner" or "Simmons"), for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. No objections to the R R have been filed by any party. For the reasons set forth below, the Court will adopt the R R.
Objections were due by July 8, 2010.
I. STANDARD OF REVIEW
When, as here, no objections are made to a magistrate judge's report and recommendation, the district court is not statutorily required to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the Third Circuit, however, "the better practice is to afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). "[T]he court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating "the failure of a party to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court"); Tice v. Wilson, 425 F. Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court's examination of this case confirms the Magistrate Judge's determinations.
II. PROCEDURAL/FACTUAL BACKGROUND
Petitioner an inmate at the State Correctional Institution Forest ("SCI-Forest") filed the instant pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 31, 2009. (Doc. 1). Petitioner challenges his December 14, 2005 conviction for Aggravated Assault, Resisting Arrest, Possession with Intent to Deliver a Controlled Substance, and Possession of Drug Paraphernalia in the Dauphin County Court of Common Pleas. Petitioner received a prison sentence of 5 to 10 years.
Petitioner raises four claims in the instant petition, all of which relate to the trial court's denial of his motion to suppress evidence. The petition is timely filed and all of the claims have been exhausted by Petitioner.
The claims are described fully by Magistrate Judge Blewitt at page 2 of the R R, which is attached hereto.
III. DISCUSSION
Magistrate Judge Blewitt correctly recommends that the petition be denied because, under Stone v. Powell, 428 U.S. 465 (1976), federal courts are barred from reviewing claims for habeas relief under the Fourth Amendment. Stone holds that "[w]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494. The claims presented by Petitioner in the instant petition all relate to the suppression issues in the underlying criminal case. Pursuant to Stone, we are unable to hear Petitioner's claims.
As we have already mentioned, neither Respondents nor the Petitioner have filed objections to this R R. Because we agree with the sound reasoning that led the Magistrate Judge to the conclusions in the R R, we will adopt the R R in its entirety. With a mind towards conserving judicial resources, we will not rehash the reasoning of the Magistrate Judge; rather, we will attach a copy of the R R to this document, as it accurately reflects our consideration and resolution of the case sub judice. An appropriate Order shall issue.
REPORT AND RECOMMENDATION
I. Background.
On August 31, 2009, Petitioner Akeem R. Simmons, an inmate of State Correctional Institute Forest, in Marienville, Pennsylvania, filed, pro se, a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner also submitted two exhibits, namely, copies of a May 28, 2009 Order from the Pennsylvania Supreme Court denying Petitioner's Petition for Allowance of Appeal from the August 1, 2008 Order of the Pennsylvania Superior Court denying Petitioner's direct appeal of his December 14, 2005 judgment of sentence in the Dauphin County Court of Common Pleas. (Doc. 2, Exs. A and B). Petitioner paid the required filing fee. (Doc. 6).
Petitioner challenges his December 14, 2005 conviction for Aggravated Assault, Resisting Arrest, Possession with the Intent to Deliver a Controlled Substance, and Possession of Drug Paraphernalia in the Dauphin County Court of Common Pleas. Petitioner states that he received a prison sentence of 5 to 10 years.
Petitioner's Habeas Petition raises four claims regarding his state conviction:
Whether the trial [court] erred in denying [Petitioner's] motion to suppress evidence for the following reasons:
a. Officer Maurer's interaction with [Petitioner] was more than a mere encounter and rose to the level of an investigatory detention.
b. There was no reasonable suspicion for Officer Maurer to conduct an investigative detention of [Petitioner].
c. There were no specific, articulable facts for Officer Maurer to conduct a Terry pat down when Officer Maurer had no evidence of any weapons on the [Petitioner] and thus [Officer Maurer] had no fear for his safety.
d. Once he [Officer Maurer] determined that there were no weapons [on the Petitioner], there was no probable cause for Officer Maurer to continue to search [Petitioner's] person for drugs or other drug paraphernalia.
Doc. 1, pp. 5-9 and Doc. 2-2 at 5.
Thus, all four of Petitioner's present habeas claims relate to the trial court's denial of his motion to suppress evidence. Petitioner does not claim that he was deprived of his right to a suppression hearing. Also, Petitioner does not contend that he was deprived of a full and fair hearing with respect to his four claims challenging the evidence used at trial to convict him.
In fact, Respondents have submitted a copy of the transcript of Petitioner's December 14, 2005 suppression hearing in the Dauphin County Court of Common Pleas, Doc. 12, Ex. B.
II. Procedural History.
In its August 1, 2008 Memorandum, the Pennsylvania Superior Court stated the relevant procedural background of Petitioner's direct appeal of his Dauphin County Court of Common Pleas' judgment of sentence as follows:
On December 7, 2005, Simmons filed omnibus pretrial motion to suppress evidence, which alleged, inter alia, that Officer Maurer did not have reasonable suspicion to conduct an investigatory stop, also known as a "pat-down" search. Following a suppression hearing, the trial court denied Simmons' motion by order dated December 14, 2005. Following a waiver trial, on December 14, 2005, Simmons was convicted of one count of Aggravated Assault (against Officer Kimmick), resisting arrest, PWID, and possession of drug paraphernalia. Immediately thereafter, the trial court sentenced Simmons to an aggregate term of not less than 60 months and nor more than 120 months imprisonment, plus fines and costs of prosecution.
On January 13, 2006, Simmons filed a notice of appeal and on January 17, 2006, the trial court ordered Simmons to file a Rule 1925(b) statement of matters complained of on appeal within fourteen days. However, on January 31, 2006, Simmons requested an extension in which to file his Rule 1925(b) statement. By order dated February 6, 2006, the trial court directed that Simmons' Rule 1925(b) statement be filed twenty days from the filing of transcripts. On April 13, 2006, the transcripts were filed, and on June 14, 2006, Simmons filed his 1925(b) statement. Thereafter, on June 30, 2006, the trial court entered its order affirming Simmons' judgment of sentence on the merits. By memorandum opinion dated February 21, 2007, this Court affirmed Simmons' judgment of sentence for his failure to timely file a Rule 1925(b) statement.
Subsequent thereto, on March 9, 2007, Simmons filed a pro se petition for post-conviction relief requesting the reinstatement of his direct appeal rights nunc pro tunc, after which, on March 14, 2006, PCRA counsel was appointed. On April 11, 2007, the PCRA court granted nunc pro tunc relief. This timely appeal followed.
See also Doc. 12, Ex. F at 3-5.
On August 1, 2008, the Pennsylvania Superior Court affirmed Petitioner's judgment of the sentence. On May 28, 2009, the Pennsylvania Supreme Court denied Petitioner's Allowance for Appeal. (Docs. 2 and 2-2).
On August 26, 2009, Petitioner's judgment of sentence became final. Five days after the AEDPA statute of limitations clock began running, on August 31, 2009, Petitioner filed, pro se, the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On November 10, 2009, Respondents filed a Response conceding that the Habeas Petition was timely filed. On January 27, 2010, Respondents filed their Response to the Petition for Habeas Corpus with exhibits. Petitioner's Habeas Petition is ripe for disposition. On May 6, 2010, the District Court referred this case to the undersigned for issuance of a Report and Recommendation ("R R"). (Doc. 13).
III. Discussion.
A. Timeliness
On December 1, 2009, the Court issued an Order and found that the present Habeas Petition was timely filed with this Court. (Doc. 9).
The one-year period in which Petitioner could seek federal habeas relief began to run on August 27, 2009, one day after Petitioner's judgment became final. Pursuant to 28 U.S.C. § 2244(d)(1)(A), the statute of limitations runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Thus, Petitioner's judgment of conviction became final on August 27, 2009, ninety (90) days after his Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court. The statute of limitations ran from August 27, 2009 to August 31, 2009 ( i.e. 4 days). As a result, Petitioner's August 31, 2009 Habeas Petition was clearly timely filed.
B. Exhaustion
Under 28 U.S.C. § 2254(b)(1), "[a]n 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." "An applicant shall not be deemed to have exhausted the remedies available in the court of the State, within the meaning of this section, 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).
As the Court stated in Bentley v. Tennis, 2007 U.S. Dist. LEXIS 88174, 5-6 (M.D. Pa. Nov. 30, 2007):
"The threshold inquiry in the exhaustion analysis is whether the claims asserted in the habeas corpus petition have been "fairly presented" to the state courts. Picard v. Conner, 404 U.S. 270, 274 (1971). Fair presentation requires that the "substantial equivalent" of both the legal theory and the facts supporting the federal claim are submitted to the state courts, and the same method of legal analysis applied in the federal courts must be available to the state courts. Lambert v. Blackwell, 134 F.3d 506, 513 (3d. Cir. 1997). The exhaustion requirement "rests upon the principles of comity and judicial economy [and] provides state courts with an initial opportunity to consider and correct alleged violations of prisoners' rights without disruption from the federal courts." Hankins v. Fulcomer, 941 F.2d 246, 249 (3d. Cir. 1991)."
In the instant case, the record shows that Petitioner "fairly presented" all the issues raised in his habeas petition with the trial court and on direct appeal in state court. (See Doc. 2-2 and Doc. 12, Ex. F). As a result, we agree with Respondents (Doc. 12, p. 6, ¶ 22.) that Petitioner's present habeas claims are exhausted.
C. Habeas Claims
As stated, all four of Petitioner's habeas claims relate to the trial court's denial of Petitioner's motion to suppress evidence. On December 14, 2005, Petitioner was given a full hearing by the trial court with respect to his suppression motion, and the court denied his motion. (Doc. 12, Ex. B). Because all of Petitioner's claims in his habeas petition seek relief under the Fourth Amendment, this federal court are barred from reviewing these claims based on Stone v. Powell, 428 U.S. 465 (1976). The United States Supreme Court held in Stone, "[w]here the State has provided an opportunity for a full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494. See also McCullough v. Coleman, 2009 WL 530354 (M.D. Pa.); Carl v. Good, 2007 WL 4198417, *5 (M.D. Pa.). As the Carl Court pointed out, "[e]ven otherwise potentially meritorious Fourth Amendment claims are barred on habeas [review] when Petitioner had a full and fair opportunity to litigate them." Carl, 2007 WL 419841 7, *5 (citing Deputy v. Taylor, 19 F. 3d 1485, 1491 (3d Cir. 1994).
The Carl Court also stated:
Generally, to avoid the Stone bar, a petitioner must demonstrate that he did not have a full and fair opportunity to litigate a Fourth Amendment claim because a structural defect in the state system prevented his claim from being heard. Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002). A petitioner has had a full and fair opportunity to litigate his Fourth Amendment claim if the state has an available mechanism for suppressing evidence seized in or tainted by an illegal search or seizure. See U.S. ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978); Petillo v. New Jersey, 562 F.2d 903, 906-07 (3d Cir. 1977). Stone v. Powell precludes reexamination of the state court's determination that no Fourth Amendment violation occurred as long as there was a full and fair opportunity to litigate the claim. The Third Circuit Court of Appeals has concluded that a habeas petition had an opportunity for full and fair litigation where the state court provided an opportunity for a pretrial suppression motion and the Superior Court considered the claim on appeal. Reinert v. Larkin, 211 F.Supp.2d 589, 597 (E.D.Pa. 2002), affd, 379 F.3d 76 (3d Cir. 2004), cert. denied, 546 U.S. 890, 126 S.Ct. 173, 163 L.Ed.2d 201 (2005). Whether or not a state court incorrectly decided a Fourth Amendment claim is immaterial to the full and fair opportunity analysis. Marshall, 307 F.3d at 82; Gilmore v. Marks, 799 F.2d 51, 56 (3d Cir. 1986), cert. denied, 479 U.S. 1041, 107 S.Ct. 903, 93 L.Ed.2d 853 (1987).
The instant record reveals that Petitioner Simmons had a pretrial hearing regarding his suppression motion and that the Pennsylvania Superior Court considered all of his Fourth Amendment claims on appeal. (Doc. 12, Exs. B and F). Thus, Petitioner Simmons had an opportunity for a full and fair litigation of his Fourth Amendment claims and this is barred by Stone from now considering them. Id.
In McCullough, the Court dismissed a § 2254 habeas petition in which the inmate raised Fourth Amendment claims similar to Petitioner Simmons' present claims and challenged the denial of his suppression motion by the Dauphin County Court of Common Pleas. The McCullough Court held as follows:
It appearing that petitioner received a full and fair opportunity to litigate his Fourth Amendment claim in the state courts, and that petitioner does not contend that his right to such a hearing was denied, but rather that the state court erred in resolving his claim therein, (see Doc. 2 at 15), and the court concluding that petitioner has received a full and fair hearing within which to present his Fourth Amendment claim, and that his instant attempt to relitigate this issue is meritless, see Stone v. Powell, 428 U.S. 465, 481, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) ("[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial."); see also Gilmore v. Marks, 799 F.2d 51, 56 (3d Cir. 1986) ("[A] federal court may not reexamine the state court's determination that no Fourth Amendment violation occurred."), it is hereby ORDERED that:
The instant petition (Doc. 1) demonstrates on its face that petitioner was previously afforded a full and fair hearing on his Fourth Amendment claim. Petitioner first raised this issue in the Dauphin County Court of Common Pleas (see Doc. 2 at 20), when he filed a motion to suppress the discovery of narcotics that he alleges were obtained during an unlawful search. The trial court held a suppression hearing, after which petitioner's motion to suppress was denied. ( Id.) Petitioner was then found guilty at trial. (See Doc. 1 at 1-2.) Petitioner appealed his conviction to the Superior Court of Pennsylvania, and specifically challenged the trial court's denial of his motion to suppress evidence. (Doc. 2 at 20.) On November 29, 2006, the Superior Court affirmed the judgment. ( Id. at 9.) Petitioner's request to appeal to the Pennsylvania Supreme Court was then denied on August 29, 2007. ( Id.) Under clear Third Circuit precedent, a defendant receives a full and fair opportunity to litigate his claim when he is permitted to present his arguments at a pretrial suppression hearing, and is given the opportunity to appeal an unfavorable ruling to the Pennsylvania Superior Court. See United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978).2009 WL 530354, *1 (footnote omitted).
The Carl and McCullough cases are directly on point with Petitioner Simmons' case. Moreover, this Court applied the essence of the Stone holding in another similar case. In Ray v. Superintendent of SCI Huntingdon, 2008 WL 2579144 (M.D. Pa.), a state prisoner filed a § 2254 Petition for a Writ of Habeas Corpus in federal court for review of his state conviction. In that Habeas Petition, Petitioner Ray raised a claim, among other claims, that his Fourth Amendment right against an improper search and seizure was violated when the police conducted a vehicle stop. The Ray Court held that because the Petitioner raised his Fourth Amendment claim on direct appeal to both the Pennsylvania Superior Court and the Pennsylvania Supreme Court this claim was not cognizable on habeas review. Id. at *8. The Ray Court quoted Stone and stated:
"Where the state has provided an opportunity for a full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Therefore, we find that this claim is not cognizable on habeas review and will deny it as such."
Similarly in the instant case, Petitioner Simmons was afforded "full and fair litigation" of his Fourth Amendment claims in state court. Both the trial court and the Pennsylvania Superior Court thoroughly discussed the merits of Petitioner's Fourth Amendment claims. (See Doc. 12, Exs. B and F). As a result, this Court is precluded from considering the merits of Petitioner Simmons' claims in his habeas petition based on Stone. Id.
See also, Charlton v. Wakefield, 2010 WL 724521 (W.D. Pa.) (Petitioner contended that his Fourth Amendment rights were violated because the police seized bloodstained jeans pursuant to an illegal search. The Court held that this claim is not cognizable in federal habeas based on Stone).
IV. Recommendation.
Based on the foregoing, we respectfully recommend that Petitioner Simmons' Habeas Corpus Petition be DENIED. (Doc. 1).
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 21, 2010.Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within ten (10) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
V. Recommendation.
Based on the foregoing, we find no merit to the Petitioner's four claims contained in his Habeas Corpus Petition. (Doc. 1). Therefore, we respectfully recommend that the Petitioner's Habeas Corpus Petition be DENIED.