Opinion
CIVIL ACTION NO. 02-7211
November 25, 2003
REPORT AND RECOMMENDATION
Presently before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. Julius Woolfolk ("Petitioner") currently is incarcerated at the State Correctional Institution at Mahoney, in Frackville, Pennsylvania. Petitioner seeks to vitiate his guilty plea, challenge DNA evidence, and confront his accuser with an alibi witness and with the assistance of competent counsel. The Honorable Bruce W. Kauffman referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons that follow, Petitioner's procedurally defaulted claim should be dismissed without an evidentiary hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts and procedural history were gleaned from Petitioner's Habeas Corpus Petition, the Commonwealth's Response, inclusive of all exhibits thereto, and the state court record.
The facts of record are that, on October 8, 1997, Petitioner's daughter was taken to the Thomas Jefferson University Hospital for an alleged rape. See Commonwealth v. Woolfolk, No. 0751 mem. op. at 1 (Ct. Com. Pl. Phila. County Nov. 14, 2000). Doctors noted a laceration to the child's hymen and a contusion on her vulva. Id. at 2. A rape examination kit proved positive in the vaginal, vulvar, and cervical areas and DNA testing identified the sperm as Petitioner's. Id; see also N.T., Oct. 21, 1998, Guilty Plea and Sentencing at 8. On October 10, 1997, Petitioner was arrested and charged with raping his fourteen-year-old biological daughter. See Commonwealth v. Woolfolk, No. 0751, Mem. Op. at 1. On October 21, 1998, before the Honorable Anne E. Lazarus in the Court of Common Pleas, Philadelphia County, Petitioner entered a negotiated guilty plea to rape and corrupting the morals of a minor, both orally and in writing. Id. at 6-9. Additionally, Petitioner confessed that he had fondled his daughter since she was seven years of age and had raped her on at least four prior occasions. Id. at 7. The court accepted Petitioner's plea and sentenced him to the agreed term of five to ten years of imprisonment on the rape charge to be followed by a five-year term of probation for corrupting the morals of a minor. Id. at 9-10.
On October 27, 1998, Petitioner's timely attempt to withdraw his guilty plea, was denied, without a hearing, by the trial court. See Respondent's Brief ("Resp.") at 1. Petitioner did not file a direct appeal, thus, his conviction became final on November 20, 1998.
Next, on March 19, 1999, Petitioner filed a pro se petition for collateral relief pursuant to the Post Conviction Relief Act, ("PCRA") 42 Pa.C. S. A. § 9541, et seq. See Commonwealth v. Woolfolk, No. 0751 mem. op. (Ct. Com. P1. Phila. County Nov. 14, 2000). Court-appointed counsel, on September 29, 1999, filed a "no-merit" letter, pursuant to Commonwealth v. Finley, 550 A.2d 213 ( Pa. Super. 1988) ( en banc.). On November 10, 1999, the Honorable Barbara Joseph, pursuant to Pa. R. Crim.P. 1507, issued a notice of intent to dismiss. However, on October 10, 2000, based on counsel's Amended Petition, filed January 31, 2000, the trial court reinstated Petitioner's appellate rights. See Commonwealth v. Woolfolk, No. 3189 mem. op. at 1-2 (Pa.Super.Ct. Aug. 14, 2001).
On November 14, 2000, the PCRA court affirmed Petitioner's judgment of sentence without a hearing. See Commonwealth v. Woolfolk, No. 0751 mem. op. (Ct. Com. P1. Phila. County Nov. 14, 2000). The Superior Court affirmed Petitioner's conviction, on August 14, 2001. See Commonwealth v. Woolfolk, No. 3189 mem. op. (Pa.Super.Ct. Aug. 14, 2001); 785 A.2d 1038 (Pa.Super. 2001). The Superior Court denied allocatur on March 28, 2002. See Common-wealth v. Woolfolk, 796 A.2d 983 (Pa. 2002).
Petitioner filed, pro se, the instant petition for writ of habeas corpus, on September 3, 2002. He seeks, inter alia, relief based on the following four grounds:
(1) Trial counsel deliberately sent Petitioner's primary defense witness home to coerce a plea. [Specifically,]. . . Petitioner's primary defense witness was told by trial counsel to "go home" because the defendant plead guilty . . .
(2) Trial counsel deliberately assisted the State in denial of [his] right to confrontation. [Specifically,] trial counsel worked directly with the State to deny [Petitioner] any opportunity to confront his accuser and present testimony and evidence capable of attacking [his] accuser. Trial counsel did so to pressure his client by elevating and vouching for the state's witness.
(3) The state has illegally relied upon DNA evidence never tested by the defense by design . . .
(4) [Petitioner] is . . . able to produce notarized affidavit by [his] primary defense witness. Petitioner avers that the record will in legal fact prove that this Petitioner has had continuous state appointed counsel whom both vigorously suppressed. As a result, this honorable court must observe a "constructive denial of defense counsel" on two occasions.See Petition for Habeas Corpus, Sept. 3, 2002 ("Pet.") at 9-10. Petitioner, in a supplemental memorandum of law filed on July 21, 2003, expounded on the first two grounds, complaining that his trial attorney "tricked him and [his alibi witness, Ms. Denise Elum,]" by telling the alibi, prior to Petitioner's guilty plea, to "go home" on the date of his guilty plea. See Pet., Supp'l Memo of Law, July 31, 2003 at 2-3 and Pet, Verifications as it Relates to Denise Elum at 1-2. On October 1, 2003, Petitioner filed a Request for a Stay of the Pleading to allow him "a chance to exhaust some of the issues that have not been unexhausted as of yet." See Pet., Petitioner Request for a Stay of the Pleading, Oct. 1, 2003.
In its responsive filing, the Commonwealth argues that Petitioner's timely claim, nevertheless, is procedurally defaulted. This court agrees.
II. DISCUSSION
A. Exhaustion/Procedural DefaultsA petition for habeas corpus is a final effort to obtain relief when other legal remedies are foreclosed. Therefore, a district court may consider and grant habeas corpus relief only if Petitioner meets his burden of proving that he has exhausted all state remedies available to him with respect to each discrete allegation or is excused from doing so. 28 U.S.C. § 2254(b), Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993), aff'd 30 F.3d 1488 (3d Cir. 1994) (citations omitted). A claim is exhausted if it has been "fairly presented" once to the state's trial court, intermediate appellate court, and highest court. 29 U.S.C. § 2254(b); Evans v. Court of Common Pleas, Delaware County, Pennsylvania, 959 F.2d 1227, 1230-31 (3rd Cir. 1992) ( citing Picard v. Conner, 404 U.S. 270, 275 (1971)).
The exhaustion requirements of 28 U.S.C. § 2254 provide:
(b)(1) An 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; or
(B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts 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.
The fair presentation requirement is met when the claim presented in the state court is the "substantial equivalent" of the claim asserted in the petitioner's federal habeas petition. Picard, 404 U.S. at 278. See Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989) ( citing Picard), cert. denied 110 S.Ct. 759 (1990); Bisaccia v. Atty. Gen. of New Jersey, 623 F.2d 307, 310 (3rd Cir. 1980) ( quoting Picard), cert. denied 101 S.Ct. 622 (1980). Moreover, "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts . . . or that a somewhat similar . . . claim was made." Anderson v. Harless, 459 U.S. 4, 6, (1982). For purposes of exhaustion, it is not necessary that the state court rule on the merits of the claim(s) presented to it. See Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3rd Cir. 1983); Gonce v. Redman, 780 F.2d 333, 336 (3rd Cir. 1985).
When an issue is unexhausted and further direct or collateral review in state court is foreclosed, the claim is deemed procedurally defaulted for purposes of federal review. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991); 28 U.S.C. § 2254(b)(1)(A); 42 Pa.C.S. § 9544(a)-(c). Generally, a Petitioner must return to the state courts to present the unexhausted claim for collateral review before he can obtain federal habeas review. Rose, 455 U.S. at 522. However, this federal habeas court may excuse Petitioner's failure to exhaust his claim if state court review is now "clearly foreclosed." See Doctor v. Walters, 96 F.3d 675, 681 (3rd Cir. 1996) and Peterson v. Brennan, 1998 WL 470139, *4 (E.D.Pa)) (both citing Toulson v Beyer, 987 F.2d 984, 987 (3rd Cir. 1993)). A petitioner's return to state court would be "futile" when a state procedural bar "clearly foreclose[s] state court review of the unexhausted claims." If there is any uncertainty as to "how a state court would resolve a procedural default issue, [a federal court] should dismiss the petition for failure to exhaust. . . ." Peterson, 1998 WL 470139, *4 ( citing Doctor v. Walters, 96 F.3d 675, 681 (3rd Cir. 1996) ( quoting Toulson, 987 F.2d 984, 987)).
Collateral attack pursuant to the PCRA, 42 Pa.C.S. § 9541, et seq requires that (1) a claim has not been previously litigated or waived and (2) the previous failure to raise the issue was not the result of any rational, strategic or tactical decision by counsel. 42 Pa.C.S. § 9543(a)(3)-(4). An issue is previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue" or "it has been raised and decided in a proceeding collaterally attacking conviction or sentence." 42 Pa.C.S. § 9544(a)(2)-(3). An issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post conviction proceeding. 42 Pa.C.S. § 9544(b).
B. Procedurally Defaulted Claims
Petitioner first argues that his trial counsel "deliberately" informed Petitioner's supposed "primary" and alibi witness, to "go home," thus "illegally coercing a plea" from the Petitioner. See Pet. at 9. Her further avers that trial counsel and the Commonwealth collaborated to deny him his Sixth Amendment right to Confrontation. Next, he argues that the Commonwealth "illegally relied upon DNA evidence that was never tested by [Petitioner.]" Finally, he raises a Sixth Amendment constructive denial of counsel claim. As urged by the Commonwealth, Petitioner's procedurally defaulted claims all must be dismissed.
Petitioner raised and exhausted only two issues in his first collateral action and appeal to the Superior Court:
(1) The trial court erred in refusing him to withdraw his guilty plea because, (a) he was innocent of the charges, (b) the trial court did not inform him, during the oral plea colloquy, that he had a right to file a petition to withdraw his plea, and (c) there was no showing that the Commonwealth would have been prejudiced by a withdrawal of the plea; and
(2) The trial court abused its discretion in denying him a hearing on his petition to withdraw the guilty plea, thus denying him an opportunity to establish manifest justice.Id. These two claims neither encompass nor exhaust Petitioner's four federal habeas corpus claims. Furthermore, presentation of these claims in state court is clearly foreclosed, by virtue of the PCRA.
In his PCRA appeal, Petitioner argued that his trial counsel informed his witness that he had confessed to the pending charges and intended to plead guilty, because his witness "left the courtroom before [his] trial had even started." See Petitioner's Motion for Post Conviction Collateral Relief, March 19, 1999, at 3. Nothing in his PCRA appeal asserts that his counsel intentionally or inappropriately coerced Petitioner's supposed alibi witness to not testify on his behalf. Rather, a written negotiated plea prompted counsel to believe the witness would be unnecessary and should be excused.
First and foremost, a second PCRA action would be time-barred. The PCRA requires that all petitions "including a second or subsequent petition" be filed "within one year of the date the judgment becomes final . . ." 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final, for purposes of the PCRA, "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." Peterson 1998 WL 470139 at *5 ( citing 42 Pa.C.S.A. § 9545(b)(3)). Direct review of Petitioner's conviction ended on November 20, 1998, since Petitioner did not appeal his guilty plea within thirty days of the sentencing. Hence, he was accorded until November 20, 1999 to timely file any PCRA.
42 Pa.C.S. § 9545(b) provides:
(b) Time for filing petition.
(1) Any petition under this subchapter . . . shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
Petitioner's initial PCRA, filed on March 19, 1999, was timely. However, since the balance of Petitioner's PCRA-year lapsed during the pendency of this first filing, any petition filed now would be dismissed as untimely. Petitioner does not qualify for any exception to permit him to successfully institute an untimely second PCRA action. This state statute of limitations has been consistently applied since its effective date. See Commonwealth v. Banks, 726 A.2d 374, 375-76 ( Pa. 1999). Furthermore, the PCRA's time requirements are jurisdictional such that the state court lacks discretion to address the merits of Petitioner's untimely claims. See Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201, 203 (2000); Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 641 (1998).
Petitioner has neither alleged nor shown that government officials interfered with his presentation of his claim or that a recently pronounced state or federal supreme court law applies retroactively to give him new rights. Moreover, the facts upon which this claim is predicated were known to him at or about the time he entered his guilty plea.
If, notwithstanding the time-bar, Petitioner were to file a second PCRA action in state court, the instant federal grounds for relief would not be reviewable. To obtain collateral review, Petitioner must demonstrate to the state PCRA court that (1) the claim has not been previously litigated or waived, and (2) previous failure to raise the issue was not the result of any rational, strategic, or tactical decision by counsel. 42 Pa.C.S. § 9543(a)(3), (4). An issue is deemed waived if "petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S. § 9544(b). Petitioner's first PCRA failed to include these claims. Inasmuch as the four claims now raised could have been, but were not presented in his first PCRA petition, they are waived.
Finally, to maintain a second PCRA action, Petitioner must make "a strong prima facie showing . . .[of] a miscarriage of justice . . . which no civilized society can tolerate." Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988). Petitioner neither has asserted nor factually demonstrated such an injustice in this case. In fact, in open court and in writing, he admitted to committing the crimes at hand. Hence, exhaustion is impossible and a procedural default exists.
This court must dismiss a procedurally defaulted claim unless Petitioner demonstrates both "cause" for the default and "actual prejudice as a result of the alleged violation of federal law," or that failure to consider the claim will result in a "fundamental miscarriage of justice" which has been defined to encompass instances in which newly discovered evidence makes it "more likely than not" that a reasonable juror would find a Petitioner not guilty. Coleman, 501 U.S. at 750, Schlup v. Delo, 513 U.S. 298 (1995); see also, Caswell v. Ryan, 953 F.2d 853, 8567 (3d Cir. 1992), cert. denied, 504 U.S. 944 (1992)
"Cause" sufficient to excuse procedural default requires a showing that some objective factor, outside of counsel or Petitioner's control, prevented compliance with state procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Caswell, 953 F.2d at 862. "Actual prejudice" occurred if an error caused Petitioner "actual and substantial disadvantage." See U.S. v. Frady, 456 U.S. 152, 170 (1972). The burden of proof falls on Petitioner to establish both cause for the default and prejudice resulting therefrom. See Teague v. Lane, 489 U.S. 288, 298 (1989); Coleman, 501 U.S. at 754; Caswell, 953 F.2d at 962. Fundamental injustice has been defined to encompass instances in which newly discovered evidence makes it "more likely than not" that a reasonable juror would find a petitioner not guilty. See Coleman, 501 U.S. at 750; Schlup v. Delo, 513 U.S. 298 (1995); see also Caswell, 953 F.2d at 857.
Petitioner offers no explanation for his failure to pursue the right to testify claim through all levels of the state court system. Nor does Petitioner offer newly discovered evidence which would effect a "fundamental miscarriage of justice" if his claims were not considered by this court. As nothing in the record justifies excusing the procedural default, this court must bar habeas review of Petitioner's claims.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 25th day of November 2003, for the reasons contained in the preceding report, it is hereby RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to U.S.C. § 2254 be DENIED without an evidentiary hearing. Petitioner has not demonstrated a substantial violation of any Constitutional right; therefore, there is no probable cause to issue a certificate of appealability.