Opinion
CIVIL ACTION NO. 03-3719
March 10, 2004
REPORT AND RECOMMENDATION
This is the second Report and Recommendation ("RR") in this case. On September 29, 2003, this Court submitted a RR recommending that the pro se Petition should be dismissed without prejudice because it was a mixed petition. Petitioner then filed timely objections to the RR, waiving his unexhausted claims. On November 24, 2003, the Honorable Timothy J. Savage remanded the Petition to this Court to consider the merits of Petitioner's one exhausted claim that his sentence was illegal. Following receipt of Judge Savage's Order, this Court issued an Order directing Respondents to file a supplemental Response to the Petition in which they were directed to address the merits of Petitioner's exhausted claim. Respondents contend that Petitioner's remaining claim is essentially a state law sentencing claim which is not cognizable on federal habeas review. They note that Petitioner's claim was reviewed by the Pennsylvania courts who found that the sentence was a valid sentence under Pennsylvania law, therefore there is no conceivable federal remedy. For the reasons that follow, it is recommended that the Petition should be denied and dismissed with prejudice without an evidentiary hearing. Petitioner contends that the trial court illegally changed his sentence from concurrent to consecutive upon his violation of probation. The Third Circuit has held that state law sentencing claims provide no basis for federal habeas relief.Pringle v. Court of Common Pleas, 744 F.2d 297, 299-300 (3d Cir. 1984) (stating alleged defects in state court's sentencing procedure constitute state law claims and do not provide a ground for federal habeas relief).
Petitioner pled guilty to charges of theft by receiving stolen property on February 5, 1997, and was sentenced to eight to twenty-three months' incarceration to be followed by probation. He was released from incarceration on February 1, 1998, into the supervision of the probation department. He then failed to report or pay his fines, provided numerous false addresses, and was arrested on numerous occasions under an alias Thus, he received a new sentence of two and one-half to five years' imprisonment. See Resp., Ex. C.
Respondents deny that Petitioner is entitled to federal habeas relief on this claim, and contend that it is essentially a state law claim which is not cognizable on federal habeas review. In addition, they state that because this claim was reviewed by the Pennsylvania courts, and those courts found that the sentence was a valid sentence under Pennsylvania law, Petitioner has no available federal remedy.
Petitioner's state law sentencing issue was examined by the Pennsylvania Superior Court. Commonwealth v. Williams, 801 A.2d 584 (Pa.Super. 2002). The court found that Petitioner's plea agreement did not specify whether Petitioner's sentence would be concurrent or consecutive. Id. at 585-586. However, the court found that the sentence was not illegal because, absent the specific restraints of a plea agreement, "the trial court's power to sentence after revocation of probation [is] not limited." Id. at 586. This decision by the Superior Court was based entirely on state law.
Respondents contend that, to the extent that Petitioner alleges that he was denied due process and equal protection in sentencing, his claim is defaulted. They note that Petitioner was represented by counsel on direct appeal and that Petitioner complained about this sentence, but he did not present this claim as one implicating the federal constitution. See Resp., Ex. A. Instead, Petitioner relied entirely on Pennsylvania law to support his argument. Id. Petitioner did not reference the due process clause or federal case law in making this argument, and the Superior Court decided the issue based entirely on Pennsylvania law. See Commonwealth v. Williams, 801 A.2d 584 ( Pa. Super. 2002).
This Court received correspondence from Petitioner dated February 23, 2004, in which he asks this Court to appoint his prior state court counsel to represent him in this matter in order to amend any mistakes and explain his previous brief that he filed in the lower court. Any such appointment would not change the outcome of this Court's decision because Petitioner's claims would, in any event, remain procedurally defaulted and unreviewable. Thus, this request is denied.
Because Petitioner cannot return to the state courts to file a timely PCRA petition, the claim is procedurally defaulted. See 42 Pa. C.S.A. § 9543(a)(3), 9544(a)(2). Because of the way Petitioner presented his state law claim, i.e., with no reference or indication to the state court that he was advancing a federal claim, the state courts, including the Pennsylvania Superior Court, addressed the claim solely as a state law claim. Thus, Petitioner has not satisfied the exhaustion requirement. See Duncan v. Henry, 513 U.S. 364, 366 (1995) (holding petitioner did not fairly present his due process claim where claim advanced in state court relied only on state law).
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 v. Thompson, 501 U.S. 722, 750 (1991). First, Petitioner does not allege cause and prejudice, therefore the procedural defaults cannot be excused on this basis. Teague 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 is inappropriate for the Court to review this claim. Sistrunk v. Vaughn, 96 F.3d 666, 674-675 (3d Cir. 1996) (stating state court finding that unexhausted claim is previously litigated under PCRA constitutes a state procedural default barring federal habeas review).
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of March, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED and DISMISSED with prejudice. There is no probable cause to issue a certificate of appealability.