Opinion
Civil Action No. 03-6624.
August 19, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution at Mahanoy, in Frackville, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On November 20, 1998, following a jury trial presided over by the Honorable George Koudelis of the Delaware County Court of Common Pleas, petitioner was convicted of first degree murder, reckless endangerment, possession of a firearm without a license, and two counts of aggravated assault. Specifically, petitioner was convicted of shooting and killing Alonzo Garvin at the culmination of a brawl between Garvin, petitioner, and several of their friends. The trial court sentenced petitioner to life imprisonment for the murder, which was to run concurrently with a sentence of one to two years for the firearm offense.
Petitioner filed a direct appeal to the Superior Court of Pennsylvania, which was denied in a memorandum opinion issued on June 5, 2000. His petition for Allowance of Appeal to the Pennsylvania Supreme Court was subsequently denied on November 5, 2000.
On October 30, 2001, petitioner filed a counseled petition for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541, et seq., in which he raised the claims now presented in the instant petition for Writ of Habeas Corpus. After review of the memoranda submitted, the PCRA court dismissed the petition on January 29, 2002.
Petitioner filed a pro se Notice of Appeal to the Superior Court, which affirmed the PCRA court's decision on June 5, 2003. Petitioner then filed a request for Allowance of Appeal to the Pennsylvania Supreme Court, which was denied on March 1, 2004. While this request was pending, petitioner filed the instant petition for Writ of Habeas Corpus. The Honorable Berle M. Schiller stayed the habeas action pending the decision of the Pennsylvania Supreme Court. On June 2, 2004, petitioner filed a supplemental petition for Writ of Habeas Corpus, adding a new claim to those raised in his original petition. Petitioner's claims are as follows:
Petitioner contends that the Superior Court affirmed the dismissal of his PCRA petition on June 3, 2003, but the difference in date is of no matter here.
(1) Trial counsel's failure to object to the court's jury instruction which stated that the defense of self-defense was available only if the shooter was "free from fault" amounted to the denial of a fair trial, due process of law, and effective assistance of counsel;
(2) Trial counsel's failure to impeach an adverse witness with his criminal convictions and pending criminal cases amounted to the denial of a fair trial, due process of law, and effective assistance of counsel;
(3) Trial counsel's failure to request a cautionary instruction regarding "other crimes evidence" — and the trial court's failure to give such an instruction — amounted to the denial of a fair trial, due process of law, and effective assistance of counsel;
(4) Trial counsel's failure to establish petitioner's knowledge of the victim's violent history amounted to the denial of a fair trial, due process of law, and effective assistance of counsel;
(5) Trial counsel's failure to object to inadmissible hearsay evidence which severely prejudiced petitioner amounted to the denial of a fair trial, due process of law, and effective assistance of counsel; and
(6) Trial counsel's failure to request or object to the absence of a jury instruction as to how the jury should consider the abundant evidence of voluntary intoxication pursuant to Rule 308 of the Pennsylvania Rules of Criminal Procedure, and direct appeal counsel's failure to raise this claim, amounted to ineffective assistance of counsel.
Respondents retort that petitioner's claims are without merit, and thus, petitioner is not entitled to federal relief. Respondents further contend that petitioner's sixth claim does not warrant review on the merits, as it has never been and cannot now be exhausted, and thus is procedurally defaulted.
II. PROCEDURAL DEFAULT
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c) (1994); Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056, 1059, reh'g denied, 490 U.S. 1076, 109 S. Ct. 2091 (1989). In other words, a petitioner must invoke "one complete round of the state's established appellate review process," in order to exhaust his remedies. O'Sullivan, 526 U.S. at 845. A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demand, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3rd Cir. 1982), cert. denied, 459 U.S. 1115, 103 S. Ct. 750 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise they risk depriving the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3rd Cir. 1993).
However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S. Ct. 2546, reh'g denied, 501 U.S. 1277, 112 S. Ct. 27 (1991); McCandless v. Vaughn, 172 F.3d 255, 260 (3rd Cir. 1999). The procedural default barrier precludes federal courts from reviewing a state petitioner's federal claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 729. "In the context of direct review of a state court judgment, [this] doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. "In the absence of [the procedural default doctrine] in federal habeas, habeas petitioners would be able to avoid the exhaustion doctrine by defaulting their federal claims in state court." Id., at 732.
As noted above, respondent contends that petitioner's sixth claim is procedurally defaulted because he has never raised it in the state courts and currently has no avenue through which he could do so. See 42 Pa. C.S. § 9545(b).
Thus, petitioner is not entitled to federal habeas review unless he can show that his default should be excused. Such excuse is allowed only where the petitioner can show "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.
Here, petitioner has neither alleged cause and prejudice, nor shown that the court's failure to consider his claim would result in a fundamental miscarriage of justice. Instead, he has merely continued to profess his innocence, claiming that he acted in self-defense. Consequently, petitioner's sixth claim is dismissed without consideration on the merits.
III. STANDARD OF REVIEW
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for Writ of Habeas Corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues — a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court as follows:
An application for a writ of habeas corpus on behalf of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless adjudication of the claim —
(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).
The United States Supreme Court, in Williams v. Taylor, 529 U.S. 362, 404-05, 120 S. Ct. 1495 (2000), interpreted the standards established by the AEDPA regarding the deference to be accorded state court legal decisions, and more clearly defined the two-part analysis set forth in the statute. Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to" the "clearly established federal law, as determined by the Supreme Court of the United States." As defined by Justice O'Connor, writing for the majority of the Court on this issue, a state court decision can be contrary to Supreme Court precedent in two ways: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] court on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. She explained, however, that this "contrary to" clause does not encompass the run-of-the-mill state court decisions "applying the correct legal rule from Supreme Court cases to the facts of the prisoner's case." Id. at 406.
To reach such "run-of-the-mill" cases, the Court turned to an interpretation of the "unreasonable application" clause of § 2254(d)(1). It found that a state court decision can involve an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407-08. The Court specified, however, that under this clause, "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 410.
IV. DISCUSSION OF MERITS
As noted above, petitioner's sixth claim is procedurally defaulted. Petitioner's five remaining claims assert that his counsel failed to provide effective assistance.
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, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562 (1984). The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. Const., amend. VI. The Supreme Court has set forth a two-prong test — both parts of which must be satisfied — by which claims alleging counsel's ineffectiveness are adjudged. Id. at 668. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. The Supreme Court has explained that:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant 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, 76 S. Ct. 158, 163-64 (1955)).
A convicted defendant asserting ineffective assistance must therefore identify the acts or omissions that are alleged not to have been the result of reasoned professional judgment. Id. at 690. Then the reviewing court must determine whether, in light of all the circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance."Id. Under Pennsylvania law, counsel is not ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Wilson, 393 A.2d 1141, 1143 (Pa. 1978).
Second, the petitioner must demonstrate that his counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. 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.
In the case at bar, petitioner's first claim is that counsel was ineffective for failing to object to the jury instruction that the defendant must be "free from fault" in order to receive the benefits of the justification defense. However, petitioner is mistaken in his allegation — the instruction given was an accurate statement of the law in Pennsylvania. In Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d 1172 (1995), the court clearly puts forth the law as follows:
In order to establish self-defense, it must be shown that: (a) the actor was free from fault in provoking or continuing the difficulty which resulted in the use of deadly force; (b) the actor reasonably believed that he was in imminent danger of death or serious bodily injury and that there was a necessity to use such force in order to save himself and others; and (c) the actor did not violate any duty to retreat or to avoid the danger.
Any objection trial counsel would have raised with regard to the jury instruction on self-defense would have been meritless, and thus trial counsel was not ineffective for failing to make any such objection.
In addition, petitioner was not prejudiced by the fact that the government, in its closing argument, provided several examples of the opportunities petitioner had to retreat and remove himself from the situation before it turned deadly. The government is entitled to make such an argument, and in addition, petitioner suffered no prejudice as the jury was advised that opening and closing statements are not to be considered as evidence. Thus, petitioner's argument that the government misstated the law of self-defense is without merit. As such, we must dismiss the habeas petition as to this claim.
Petitioner's second claim is that trial counsel failed to impeach an adverse witness with his criminal convictions and pending criminal cases during cross examination. However, trial counsel made a strategic decision to accept the witness' testimony, as it included an admission that he lied when providing statements to the police implicating petitioner because he was frightened of what might happen to him.
The witness explained: "I was afraid of being — of going to jail for hitting [the victim] in the head with a brick, for being there, for leaving him, for —, for all those reasons." (N.T., 11/18/98, pp. 110-111). The witness also testified that neither did he know where petitioner was standing just before the victim was shot, nor did he see anyone with a gun at that time. (Id., pp. 46, 48). This testimony was favorable to petitioner, and thus evidences the fact that counsel's decision not to impeach the witness was sound. Had counsel opted to impeach, the witness would have been portrayed as a consistent liar, which counsel believed could have been harmful to petitioner. Because counsel made a reasonable strategic decision, his action does not amount to ineffective assistance. As such, we must dismiss the habeas petition as to this claim.
Petitioner's third claim is that trial counsel failed to request a cautionary jury instruction regarding "other crimes evidence": petitioner's drinking of alcohol, use of illegal drugs, and ownership of a gun without a permit. However, it was made known during the course of the trial that everyone involved in the altercation was under the influence of both alcohol and illegal drugs at the time. As well, the use of drugs and alcohol was not of prime importance in the context of the events which transpired.
In Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744, 748-49 (1990), the court held that where the record is replete with evidence of the defendant's involvement in distinct crimes, no prejudice can accrue from counsel's failure to request a cautionary instruction regarding the use of other crimes evidence admitted against the defendant. Thus, petitioner suffered no prejudice as a result of the lack of a cautionary jury instruction with regard to his use of drugs and alcohol on the night of the incident.
With regard to the gun, the fact that petitioner was being tried for carrying a weapon without a license obviated the need for a limiting instruction. Additionally, petitioner admitted that he carried the unlicensed gun for protection as he often had large sums of money on his person. As a result, petitioner was not prejudiced by the lack of a limiting instruction, and thus, we must dismiss the habeas petition as to this claim.
Petitioner's fourth claim is that trial counsel failed to establish his knowledge of the victim's violent history. Counsel believed that such testimony would be harmful to petitioner, as it would make the jury question why he spent the entire evening socializing with the victim. Testimony about the victim's violent history would also be diminished by the fact that petitioner testified that he carried his gun on the evening of the murder merely because it was in the jacket he chose to wear, and not because he was fearful of the victim.
In addition, the theory of self-defense offered by petitioner — that the victim pulled a gun and pointed it at a group of people including petitioner, causing petitioner to pull his gun and fire first — made an explanation of the victim's violent history unnecessary. Where the threat of deadly force prompts a counterattack of deadly force, the jury need not be instructed to consider the petitioner's knowledge of the victim's reputation for violence in determining whether or not petitioner acted reasonably. See Commonwealth v. Whatley, 548 Pa. 574, 699 A.2d 1240 (1997). Thus, counsel was not ineffective in failing to request a limiting instruction. As such, we must dismiss the habeas petition as to this claim.
Petitioner's fifth claim is that trial counsel failed to object to inadmissible hearsay evidence which severely prejudiced his case. A police officer testified that he received a disorderly conduct report, but by the time he responded to the scene, the men causing the disturbance had dispersed. Such testimony is not hearsay. In Commonwealth v. Sneed, 514 Pa. 597, 606-07, 526 A.2d 749, 754 (1987), the court stated:
It is, of course, well established that certain out-of-court statements offered to explain the course of police conduct are admissible. Such statements do not constitute hearsay since they are not offered for the truth of the matters asserted; rather, they are offered merely to show the information upon which police acted.See also Commonwealth v. Dent, 837 A.2d 571 (Pa.Super. 2003). In addition, trial counsel objected to the admission of this testimony. Counsel cannot be said to have been ineffective where the court overruled his objection.
Petitioner also claims that counsel failed to object to Paul Cheng's testimony of having overheard a conversation by three black males. During the course of his testimony, Cheng described all three men, none of which matched a description of petitioner. During his cross examination, petitioner's counsel highlighted the fact that Cheng could not be sure that he had seen petitioner. As such, petitioner suffered no prejudice. Thus, the habeas petition must be dismissed as to this claim and in its entirety.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ____ day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.