REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, Magistrate Judge.
Presently before the Court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the "Petition") (ECF No. 1) filed by Clinton J. Smith ("Petitioner"), wherein he challenges his judgment of sentence of life incarceration without parole entered on April 23, 2010 after pleading guilty to first-degree murder and endangering the welfare of a child. For the reasons that follow, it is respectfully recommended that the Petition be denied and that a Certificate of Appealability also be denied.
As stated by the Superior Court of Pennsylvania, "[Petitioner's] convictions arose from the November 15, 2007 savage beating death of the 9-month-old daughter of [Petitioner's] girlfriend while the mother was at work. The child's horrendous suffering included bite marks, vomiting when [Petitioner] squeezed her stomach, and a spontaneous bowel movement when [Petitioner] put the full weight of his body on her abdomen. There were also indications of sexual molestation." (ECF No. 21-4, p.28),
On November 22, 2010, Petitioner filed a pro se "Motion to Vacate Conviction and Sentence" which the trial court treated as a petition filed pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"). (ECF No. 21-1, pp.26-32.) Petitioner was then appointed counsel for the purposes of filing an amended PCRA petition. (ECF No. 21-1, p.7.)
On April 29, 2011, Petitioner's appointed counsel, Attorney Scott Coffey, filed a "No Merit" letter and a petition to withdraw pursuant to Turner-Finley.
On May 2, 2011, the trial judge issued a Notice of Intent to Dismiss Petitioner's PCRA petition without conducting an evidentiary hearing, pursuant to Pa.R.Crim.P. 907, which stated the reasons for denying Petitioner post conviction relief. (ECF No. 21-2, pp.1-2.) On May 16, 2011, Petitioner filed a pro se objection to the Rule 907 notice, (ECF No. 21-1, pp.3-17), and, on July 7, 2011, the trial judge issued a final order dismissing Petitioner's PCRA petition without a hearing, (ECF No. 21-2, p.18).
Petitioner filed a notice of appeal of the denial of post conviction relief on August 1, 2011, (ECF No. 21-2, pp.23-25), and filed an amended notice of appeal on August 29, 2011, (ECF No. 21-2, pp.26-27). Attorney Christy P. Foreman was appointed to represent Petitioner on October 26, 2011. (ECF No. 21-1, p.8.)
On February 3, 2012, the trial judge issued an order responding to Petitioner's notice of appeal to the Superior Court. (ECF No. 21-6, p.29.) In place of an opinion addressing Petitioner's notice of appeal, the trial judge deferred to his Notice of Intention to Dismiss dated May 2, 2011, which listed the court's reasons for dismissing Petitioner's PCRA petition.
On October 9, 2012, Petitioner, through Attorney Foreman, filed a brief pursuant to
On May 22, 2013, Petitioner filed a pro se Petition for Allowance of Appeal with the Pennsylvania Supreme Court, (ECF No. 21-5, pp.1-40), which was denied on September 17, 2013, (ECF No. 21-5, pp.41-43). Petitioner did not file a Writ of Certiorari with the United States Supreme Court.
Petitioner filed for habeas relief in the Eastern District of Pennsylvania on April 4, 2013, (ECF No. 1), and his Petition was transferred to this Court on June 4, 2014, (ECF No. 7). He raises four claims in his Petition, summarized as follows.
Respondents filed their Answer to the Petition on October 29, 2014. (ECF No. 21.) Petitioner filed a Reply to the Answer on November 24, 2014. (ECF No. 24.)
Standards Governing Federal Habeas Corpus Review
Under 28 U.S.C. § 2254, "[t]he Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Errors of state law are not cognizable in a federal habeas action. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot `reexamine state court determinations on state-law questions.'") (quoting
Amended Section 2254 of the federal habeas corpus statute provides the standard of review for federal court review of state court criminal determinations and provides, in relevant part, as follows:
28 U.S.C. § 2254(d).
Thus, the federal habeas corpus statute circumscribes a federal habeas court's review of a state prisoner's constitutional claim when the state court adjudicated that claim on the merits and denied it. For the purposes of § 2254(d), a claim has been "adjudicated on the merits in State court proceedings" when a state court has made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g.,
A provision of the federal habeas corpus statute, 28 U.S.C. § 2254(b), requires a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. Specifically, a federal habeas court may not grant a state prisoner's petition for writ of habeas corpus unless he has first presented his federal constitutional claims to the state courts. 28 U.S.C. § 2254(b)(1)(A). This is called the "exhaustion" requirement and it is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731
A federal court may be precluded from reviewing claims under the "procedural default doctrine."
A petitioner whose constitutional claims have not been addressed on the merits due to a procedural default can overcome the default, thereby allowing federal court review, if he or she can demonstrate either: 1) "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law; or 2) failure to consider the claims will result in a "fundamental miscarriage of justice."
Cause and Prejudice
To satisfy the cause standard, a petitioner must demonstrate that some objective factor external to the defense impeded his or her efforts to raise the claim in state court.
Recently, the United States Supreme Court held for the first time that in states like Pennsylvania, where state law requires that claims of ineffective assistance of trial counsel be raised in an initial-review collateral proceeding (such as the PCRA),
Fundamental Miscarriage of Justice
Where a petitioner cannot make a showing of "cause and prejudice," a federal court may nevertheless consider the merits of his or her unexhausted claims under circumstances in which the failure to adjudicate such claims would result in a "fundamental miscarriage of justice."
The fundamental miscarriage of justice exception is narrow; the Supreme Court having applied it "to a severely confined category: cases in which new evidence shows `it is more likely than not that no reasonable juror would have convicted [the petitioner].'"
Petitioner's claims are unexhausted and procedurally defaulted.
As an initial matter, the Court notes that claims 1 through 3 and claim 4(b) of the Petition are unexhausted because Petitioner failed to raise them in state court. These claims are also procedurally defaulted because any PCRA petition that Petitioner were to file now would be time-barred by the statute of limitations contained in the current version of the statute. See 42 Pa. C.S. § 9545(b) (setting a one-year jurisdictional statute of limitations for PCRA actions). Petitioner even acknowledges as much in his Reply brief to the Respondent's Answer. (ECF No. 24, at pp.2-4.) As such, the question now becomes whether Petitioner can overcome the procedural default by showing cause and prejudice or a fundamental miscarriage of justice.
Petitioner has not demonstrated cause and prejudice to overcome the procedural default of his claims.
Petitioner attempts to overcome the procedural default of his claims by alleging that his appointed PCRA counsel was ineffective for filing a Turner-Finley "no merit" letter instead of filing a counseled amended PCRA petition. As previously noted, the Supreme Court has held that a petitioner can establish cause for a procedural defaulted claim by showing that appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standard of
In his brief in support of his Petition, Petitioner does not discuss or analyze PCRA counsel's performance under
Moreover, district courts within Pennsylvania have found that appointed PCRA counsel was not deficient under similar, if not identical facts. See
Finally, it was Petitioner himself who failed to pursue the procedurally defaulted claims following the state court's order that allowed appointed PCRA counsel to withdraw. In other words, while Petitioner was acting pro se, he himself abandoned the procedurally defaulted claims on collateral review by failing to pursue them in his objections to the court's notice of intent to dismiss.
For these reasons, Petitioner has not demonstrated cause and prejudice to excuse the procedural default of claims 1 through 3 and 4(b) of his Petition.
Petitioner has not demonstrated a fundamental miscarriage of justice to overcome the procedural default of his claims; i.e., that he is actually innocent.
Petitioner also contends that he is actually innocent and therefore it would be a fundamental miscarriage of justice for this Court to not review his procedurally defaulted claims. As stated above, the fundamental miscarriage of justice exception is narrow. The Supreme Court has applied it "to a severely confined category: cases in which new evidence shows `it is more likely than not that no reasonable juror would have convicted [the petitioner].'"
The focus under the "actual innocence" exception is on establishing actual innocence as opposed to legal innocence. See
In support of his "actual innocence" claim Petitioner states that his trial counsel withheld exculpatory evidence that would have exonerated him and was therefore ineffective for advising Petitioner to plead guilty. He relies on the following documents to support his claim: (1) Supplemental Report on DNA Retrieval; (2) Serology Report; (3) DNA Results; (4) Emergency Medical Services Report; (5) Autopsy Report — Dr. Williams; and (6) Child Advocacy Center — Dr. Squires. (ECF No. 9, Pet'r App. B-G.)
First, Petitioner does not explain how any of the documents he relies on would have resulted in no reasonable juror convicting him of Criminal Homicide. Moreover, none of the documents are "new" evidence as they were all available to Petitioner prior to, and during, his guilty plea proceeding, and they are all documents that the Commonwealth would have relied on to establish Petitioner's guilt had Petitioner's case proceeded to trial. In other words, they would have been more harmful, than helpful, to the defense.
Petitioner also alleges in his actual innocence claim that his trial counsel told him to deny that he was taking medication on the day of his guilty plea and also told him to deny that he had any mental illnesses. In support of this claim he relies on (1) his Guilty Plea form dated April 16, 2010, (2) his Guilty Plea form dated April 23, 2010, and (3) a medical evaluation report by Dr. Burnstein. (ECF No. 9, Pet'r App. J, R, S.) None of these documents, however, are "new" evidence and none establish his innocence. The Guilty Plea forms are discussed in detail in the next section, and for the reasons stated in that section they do not establish Petitioner's actual innocence.
The report referred to by Petitioner was issued by Dr. Burnstein on February 10, 2009. Dr. Burnstein is an expert in the field of forensic psychiatry, and, pursuant to the request of Petitioner's trial counsel, he conducted a psychiatric examination on Petitioner for one hour and thirty minutes on October 17, 2008. The report details Petitioner's social, criminal and psychiatric history and it concludes with Dr. Burstein's opinion that Petitioner "is mentally capable of understanding the charges against him and cooperating in his defense." (ECF No. 10, pp.80-86.) The report was actually admitted by trial counsel at Petitioner's guilty plea proceedings. (N.T. 4/23/10, p.39.)
Petitioner fails to explain why he thinks this report establishes his innocence and the undersigned can think of no other reason other than it states that Petitioner "was under the influence of his depressive illness and affected by alcohol and drug abuse" on the night the victim was killed. To the extent Petitioner contends that this evidence somehow demonstrates that he had diminished capacity at the time of the murder, he is reminded that "the miscarriage of justice exception is concerned with actual as compared to legal innocence."
Simply put, Petitioner has not presented any "new" evidence to satisfy the actual innocence requirement of the fundamental miscarriage of justice exception. As such, his claims remain procedurally defaulted.
Petitioner is not entitled to habeas relief on the merits of his exhausted claim.
The only claim in the Petition that is somewhat exhausted, and therefore not procedurally defaulted, is Petitioner's claim that his plea was involuntary, unknowing, and unintelligent because he was under the influence of psychotropic medications at the time of his guilty plea.
As with any waiver of a constitutional right, the Due Process Clause of the United States Constitution requires that a guilty plea be made knowing, voluntary and intelligent.
Whether a plea of guilty is voluntary for purposes of the federal constitution is a question of federal law.
A habeas petition challenging the voluntary nature of his or her guilty plea faces a heavy burden.
Because the Superior Court denied Petitioner's claim on the merits, this Court's review of it is very limited. It is not for this Court to decide whether the Superior Court's decision was right or wrong. Rather, under AEDPA's standard of review, as codified in relevant part at 28 U.S.C. § 2254(d)(1), it is Petitioner's burden to show that the Superior Court's adjudication was "contrary to, or involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States," or as codified in relevant part at 28 U.S.C. § 2254(d)(2), was an "unreasonable determination of the facts in light of the evidence presented."
Here, Petitioner has not met his burden. The Superior Court's rejection of this claim was not "contrary to" or an "unreasonable application" of Supreme Court precedent requiring that a guilty plea be a knowing, voluntary and intelligent act, undertaken with sufficient awareness of the relevant circumstances and likely consequences. Despite the fact that the Superior Court did not specifically cite to federal law when it found that Petitioner's plea was indeed voluntary, it is clear that they understood that a guilty plea must be knowing, intelligent and voluntary.
Similarly, its decision was not an unreasonable application of established Supreme Court precedent. The Superior Court found Petitioner's claim "belied" by the statements he made in his written and at his oral plea colloquies. The United States Supreme Court has stated that statements made in court have a "presumption of verity" and that the "subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."
Additionally, the Superior Court's decision was not an unreasonable determination of the facts in light of the evidence presented. Despite his statements made in his oral and written plea colloquies, Petitioner failed to explain to the state court, and to this Court, how ingestion of these psychotropic drugs prior to his guilty plea affected the voluntariness of his plea. As Respondent points out, Petitioner was able to communicate with the court during the guilty plea colloquy, and responded without hesitation to the questions being asked of him in the Guilty Plea form and no indication that Petitioner indicated to the court that he had a problem completing the form. Petitioner admitted in the form, and at the plea proceedings, that he was pleading guilty because he was guilty of the crimes charged, that his decision to plead guilty was not affected by any medication he was taking, if any, and that no one, including his attorney, had coerced or forced him into entering a guilty plea. Petitioner also acknowledged that he was clear-headed and had not taken any narcotics or alcohol in the last forty-eight hours of entering into the plea. (N.D. 4/23/10, p.5; ECF No. 21-6, p.19.
To the extent Petitioner is entitled to a merits review of this claim, he has not met his burden under 28 U.S.C. § 2254(d). Therefore, it should be denied.
Certificate of Appealability
A court should issue a Certificate of Appealability where a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner meets this burden by showing that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."
For the reasons set forth above, it is respectfully recommended that the Petition be denied and that a Certificate of Appealability also be denied.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Petitioner shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Petitioner's failure to file timely objections will constitute a waiver of his appellate rights.