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HOLMAN v. GILLIS

February 25, 2000

ROBERT HOLMAN, PETITIONER,
V.
FRANK D. GILLIS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.

MEMORANDUM

Petitioner Robert Holman, a state prisoner, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is the second Report and Recommendation of the Magistrate Judge recommending that the petition be denied and dismissed.*fn1 In arriving at that recommendation, the Magistrate Judge found that petitioner had not shown cause and prejudice or a fundamental miscarriage of justice with respect to his three procedurally defaulted claims and that his remaining claims are either not cognizable in a federal habeas petition or are without substantive merit.

Petitioner has filed objections to this second Report and Recommendation. After de novo consideration of petitioner's objections, respondents' response to those objections and petitioner's reply to that response, the court will overrule petitioner's objections, adopt the second Report and Recommendation, and deny and dismiss the petition.*fn2

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 14, 1992, after a jury trial in the Court of Common Pleas for Philadelphia County, petitioner was convicted of robbery and violating the Uniform Firearms Act. On April 7, 1993, after denying petitioner's post-trial motions, the Court of Common Pleas sentenced petitioner to a term of ten (10) to twenty (20) years imprisonment. Petitioner obtained new counsel and appealed to the Superior Court of Pennsylvania, which, on October 27, 1994, denied petitioner's claims and affirmed his sentence. Petitioner filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on January 19, 1995.

On March 7, 1995, petitioner filed a pro se petition for collateral review under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.Cons.Stat.Ann. § 9541 et seq. New counsel was appointed. After review of the record, new counsel filed a "no merit" letter with the PCRA court, indicating that there were no issues of merit and requested permission to withdraw as counsel. On October 7, 1996, the PCRA court dismissed petitioner's petition and permitted counsel to withdraw.

Petitioner appealed the dismissal of his PCRA petition to the Superior Court of Pennsylvania, which, on November 25, 1997, affirmed the dismissal by the PCRA court. Petitioner then filed a pro se petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on June 26, 1998.

On August 14, 1998, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging various substantive claims. The case was referred to Magistrate Judge Diane M. Welsh for a Report and Recommendation. On February 8, 1999, the Magistrate Judge issued a Report and Recommendation, concluding that the petition was a "mixed petition" because it contained both exhausted and unexhausted claims. Because the status of the applicable law at that time was not settled, the Magistrate Judge recommended that the mixed petition be dismissed without prejudice for failure to exhaust state court remedies. See 2/8/99 Report & Recommendation.

Upon consideration of respondents' objections and after reviewing the recent Pennsylvania Supreme Court's decision of Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998), and its progeny, this court sustained respondent's objections and disapproved the Report and Recommendation. See Holman v. Gillis, 58 F. Supp.2d 587, 589 (E.D.Pa. 1999). In so doing, this court concluded that it could be confidently stated that the Pennsylvania Supreme Court will consistently and regularly apply the 1995 amendments to the PCRA. Id. at 596. Specifically, the one-year statute of limitations for filing such petitions would be treated as a procedural bar to all untimely PCRA petitions that do not qualify for any of three articulated exceptions.*fn3 Id. Therefore, remanding the case to state court would necessarily be futile. Id. Instead, this court remanded the matter to the Magistrate Judge for consideration of the claims petitioner had shown to be exhausted and for a determination as to whether petitioner established cause and prejudice or a fundamental miscarriage of justice with respect to the procedurally defaulted claims. Id. at 597-98.

On December 22, 1999, the Magistrate Judge issued her second Report and Recommendation, to which petitioner has objected.*fn4 After reviewing the legal standards applicable to petitions filed under § 2254, the court will discuss petitioner's objections in turn.

II. LEGAL STANDARD

Section 2254 provides relief to prisoners incarcerated by the state only if such custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). With respect to the appropriate standard of review for federal courts, the pertinent provisions of § 2254 provide:

An application for a writ of habeas on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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). Moreover, "a determination of a factual issue made by the State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1). The Third Circuit has articulated a two-part analysis in reviewing federal habeas claims. First, the court must determine if the state court decision was "contrary to" Supreme Court precedent governing the ground for relief, such that a contrary outcome is required. See Matteo v. Superintendent S.C.I. Albion, 171 F.3d 877, 890 (3d Cir.), cert. denied, ___ U.S. ___, 120 S.Ct. 73, 145 L.Ed.2d 62 (1999). Second, barring that demonstration, a habeas writ should not be granted "unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id. Indeed, even if the federal habeas court disagrees with the state court decision, habeas relief is not appropriate. Id.

III. DISCUSSION

In his habeas corpus petition, petitioner asserted the following grounds for relief:

(1) his arrest "was unlawful and without warrant;"

(2) he was denied the right to confront his accuser, "the actual ...

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