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POWELL v. MEYERS

United States District Court, E.D. Pennsylvania


December 31, 2003.

KEVIN POWELL
v.
ROBERT W. MEYERS, et al

The opinion of the court was delivered by: PETER SCUDERI, Magistrate Judge

REPORT AND RECOMMENDATION

Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Kevin Powell ("Petitioner"), an individual currently incarcerated in the State Correctional Institution in Rockview, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.

I. FACTS AND PROCEDURAL HISTORY

  The following facts were determined at trial:

On the evening of October 1, 1998 at 10:00 p.m., [Petitioner], along with a codefendant [sic], Marcus Johnson, robbed Mr. Kyuing Jang, the proprietor of the Serve Right Food Market at 239 So. 10th Street, Philadelphia. While [Petitioner] acted as a lookout, and the driver of the "getaway" car, which was double-parked outside the store, co-defendant Marcus Johnson exited the vehicle, entered the market with a .380 caliber handgun and announced a hold up. Mr. Jang gave Johnson $500.00, and Johnson then left the store, re-entered [Petitioner's] car and [Petitioner] drove the car away. Philadelphia Police Officer Burrell had observed [Petitioner] in the illegally double-parked car, and had observed Johnson enter and exit the store. Officer Burrell then pursued the vehicle, and was assisted in the chase by other officers, who finally apprehended [Petitioner] several blocks away, near the Vine Street Expressway entrance. A handgun, in plain view, was confiscated from the front passenger seat, and found to be operable. Subsequently, it was discovered that the vehicle being operated by [Petitioner] belonged to one Rose Fisher, who had parked it on Heather Road, Upper Darby, at 8:30 a.m. that morning, and had discovered it missing at 4:30 p.m. Ms. Fisher had not given [Petitioner] or anyone else permission to operate the vehicle.
Commonwealth v. Powell, No. 0422 May 1999, at 1-2 (Phila. C.C.P. July 23, 2002). Petitioner was arrested and charged with robbery, criminal conspiracy, possession of an instrument of crime, and unauthorized use of a motor vehicle.

  On August 8, 2000, Petitioner entered a plea of nolo contendere to all charges before the Honorable James J. Fitzgerald, Court of Common Pleas of Philadelphia County,. In accordance with the plea agreement, Petitioner was sentenced to five (5) to twelve (12) years of imprisonment for robbery and criminal conspiracy, concurrent with any other sentences imposed that day.*fn1 Sentence was suspended for possession of an instrument of crime and unauthorized use of a motor vehicle.

  Petitioner did not file a petition for reconsideration of his sentence, make any attempt to withdraw his plea, or file a direct appeal. Instead, on May 10, 2001, Petitioner filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq., raising one (1) claim: that he did not receive the benefit of his negotiated plea agreement because the state parole board refused to allow his back time to be served concurrently with the robbery sentence. Counsel appointed to represent Petitioner in his PCRA matter subsequently filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 ( Pa. Super. 1988), certifying that he had reviewed Petitioner's claim and concluded that there were no meritorious issues to advance before the PCRA court. On March 22, 2002, the PCRA court dismissed Petitioner's PCRA petition as meritless. Commonwealth v. Powell, No. 0422 May Term 1999 (Phila. C.C.P. March 22, 2002).

  Petitioner appealed the denial of PCRA relief to the Pennsylvania Superior Court, arguing that appointed counsel's "no merit" letter failed to meet the requirements of Pennsylvania law, under Finley, and that the trial court's sentence was illegal. On April 29, 2003, the Superior Court affirmed the denial of PCRA relief. Commonwealth v. Powell, No. 1131 EDA 2002 (Pa. Super. April 29, 2003). In discussing Petitioner's Finley claim, the Superior Court concluded that Petitioner's initial PCRA petition contained three (3) possible claims: (1) ineffective assistance of trial counsel for failing to inform Petitioner that his back-time sentence could not run concurrently with his current sentence; (2) unlawful inducement of a plea; and (3) improper calculation of sentence. Id. at 4-5. The court found that the first two (2) of these possible claims were meritless, and that the illegal sentence claim was not cognizable on PCRA review. Id. at 5-7.

  Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

  On June 9, 2003, Petitioner filed the instant pro se petition for writ of habeas corpus,*fn2 arguing: (1) his plea of nolo contendere was unlawfully induced; (2) ineffectiveness of counsel in the plea bargaining process; and (3) the trial court imposed an unlawful sentence. On November 24, 2003, Respondents filed an answer asserting that Petitioner's claims are unexhausted and procedurally defaulted and, in the alternative, that the claims are meritless.

  II. DISCUSSION

  A. Exhaustion and Procedural Default

  A federal court should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254(b)(1), which provides in relevant part that "[a]n 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." 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement demands that a petitioner "fairly present" each claim in his petition to each level of the state courts, including the highest state court empowered to consider it. See 28 U.S.C. § 2254(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*fn3 to raise, by any available procedure, the question presented"); O'Sullivan v. Boerckel 526 U.S. 838, 848 (1999). In order for a claim "to have been `fairly presented' to the state courts,. . . it must be the substantial equivalent of that presented to the state courts. In addition, the state courts must have available to it the same method of legal analysis as that to be employed in federal court." Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000): see also Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) ("The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights"). The habeas petitioner bears the burden of showing that his or her claims have been "fairly presented" to the state courts, and that the habeas claims are the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 74 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983).

  The exhaustion requirement may be excused if it would be futile for the petitioner to seek relief in the state court system, or if the particular circumstances of the case render the state process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1)(B); see also Szuchon v. Lehman, 273 F.3d 299, 323 n.14 (3d Cir. 2001) ("Exhaustion will be excused as `futile' if `the state court would refuse on procedural grounds to hear the merits of the claims'") (quoting Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996)); Werts, 228 F.3d at 192 (same).

  Where a petitioner fails to comply with state procedural rules and is barred from litigating a particular constitutional claim in state court, the claim may nevertheless be considered on federal habeas if the petitioner "demonstrate[s] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) ("We . . . require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim") (emphasis in original). Also, a petitioner may raise a claim in federal habeas proceedings if the state has waived or declined to rely on the procedural default. See Hull v. Kyler, 190 F.3d 88, 97 (3d Cir. 1999) (citations omitted).

  The issue of cause "ordinarily turn[s] on whether the prisoner can show that some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice means that the errors at trial "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494; Werts, 228 F.3d at 193. The petitioner bears the burden of establishing cause and prejudice. Coleman, 501 U.S. at 749-50.

  In order to satisfy the "fundamental miscarriage of justice" exception, the Supreme Court requires the petitioner to show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298 326-327 (1995) (citing Murray, 477 U.S. at 496); Werts, 228 F.3d at 193. To satisfy the "actual innocence" standard, a petitioner must show that, in light of new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Id.

  1. Failure to present claims to Pennsylvania Supreme Court

  Respondents first argue that Petitioner's claims are unexhausted and procedurally defaulted because Petitioner never presented any claims to the Pennsylvania Supreme Court — either on direct or collateral appeal — and that the court should therefore not reach the merits of his claims. See Respondent's Br. at 7-8. In doing so, Respondents criticize Order 218 of the Pennsylvania Supreme Court, dated May 9, 2000, which no longer requires federal habeas prisoners to present their claims to the state supreme court in order for those claims to be considered exhausted. See In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000). However, the court notes that it must effectuate Order 218, which was issued before Petitioner's collateral appeal, pursuant to binding Third Circuit case law. See Wenger v. Frank, 266 F.3d 218, 226 (3d Cir. 2001) (stating "Order 218 does not apply in cases in which the time to petition for review by the state supreme court expired prior to the date of the order"). As a result, I find that all claims fairly raised on collateral appeal before the PCRA court and the Superior Court are exhausted, even if Petition did not file a request for allowance of appeal with the state supreme court. 2. Failure to "fairly present" claims to Pennsylvania Superior Court

  In the alternative, Respondents argue that Petitioner's claims of ineffective assistance of trial counsel and unlawful inducement are unexhausted and procedurally defaulted because the claims were not "fairly presented" to the Pennsylvania Superior Court. See Respondent's Br. at 9-11. In his brief to the Superior Court, Petitioner presented only two (2) claims, namely: (1) PCRA counsel's "no merit" letter failed to meet the requirements of Pennsylvania law pursuant to Finley: and (2) the trial court's sentence was illegal. However, in discussing Petitioner's Finley claim, the Superior Court looked to the merits of any possible underlying claims regarding his plea. In doing so, the Superior Court identified three (3) possible claims, including the first two (2) claims presented by Petitioner in the instant federal habeas petition: whether the plea was unlawfully induced and whether trial counsel was ineffective with regard to the plea. Because the Superior Court identified these "possible" claims and addressed them on the merits, I conclude that, in an abundance of caution, this court should deem these claims to have been exhausted. Therefore, I will address Petitioner's first two (2) claims on the merits.

  B. Claims One (1) and Two (2) Addressed on the Merits

  The AEDPA, which became effective on April 24, 1996, increased the deference federal courts must give to the factual findings and legal determinations of the state courts. Werts, 228 F.3d at 196 (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of United States;" or if (2) the adjudication 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)(1)-(2). Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).

  The Supreme Court expounded upon this language in Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the Court explained that "[u]nder the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (citing Williams, 529 U.S. at 389-390). The Court in Williams further stated that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. (citing Williams, 529 U.S. at 388-389). "In further delineating the `unreasonable application of component, the Supreme Court stressed that an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts. 228 F.3d at 196 (citing Williams, 529 U.S. at 389).

  1. Unlawful inducement of plea

  Petitioner first argues that his plea of nolo contendere was unlawfully induced insofar as he was allegedly promised that his new sentence would be concurrent to back time. In discussing this claim as part of its Finley analysis, the Superior Court first noted that a claim of an unlawfully induced plea is cognizable under Pennsylvania law where "the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent." Commonwealth v. Powell, No. 1131 EDA 2002, at 5 (Pa. Super. April 29, 2003) (citing Pa. Cons. Stat. Ann. § 9543(a)(2)(iii)). Because Petitioner did not make an assertion of innocence, and because the Superior Court found no circumstances existed which would support such an assertion, the state court concluded that the unlawful inducement claim was meritless. Id.

  Under Supreme Court precedent, a prosecutor has the right to enter into a plea agreement with a defendant, but the prosecutor must fulfill the promises made to the defense. Santobello v. New York, 404 U.S. 257. 260-263 (1971). Here, Petitioner's claim of unlawful inducement is not supported by the record. At no time during the sentencing hearing was Petitioner told that his sentence would run concurrent to back time. Judge Fitzgerald advised Petitioner of the charges against him; advised Petitioner of his right to a jury trial and of the consequences of his nolo contendere plea; and told Petitioner that although his new sentence would be imposed concurrent to his pre-existing sentences, he did not have the power to make the new sentence concurrent to any back time. (N.T. 8/8/00, at 2-22). In addition, defense counsel explained to the court that the agreement reached with the Commonwealth was for Petitioner to serve concurrent sentences on all counts, with the clarification that the sentence was "not concurrent to back time." (N.T. 8/8/00, 6). Because the court record — including representations by Petitioner's own counsel — indicates that the plea agreement never contained a promise that Petitioner's new sentence would run concurrent to back time, his unlawful inducement claim must fail.

  2. Ineffective assistance of counsel

  Petitioner also argues that defense counsel was ineffective for failing to inform Petitioner that his back-time sentence could not run concurrently with his current sentence. Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court set forth the standard for a petitioner seeking habeas relief on the grounds of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687. Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," a court must be "highly deferential" to counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In determining prejudice, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.

  In discussing Petitioner's ineffectiveness claim as part of its Finley analysis, the Superior Court stated:

Any ineffectiveness claim is belied by the record. [Petitioner's] trial counsel clearly informed [Petitioner] on the record, before he entered his plea, that the judge could not guarantee his back-time sentence would run concurrent to the current sentence. N.T. 8/8/00, at 7. As such, pursuit of [Petitioner's] claim in this manner is meritless.
Commonwealth v. Powell, No. 1131 EDA 2002, at 5 ( Pa. Super. April 29, 2003).

  I find that the conclusion of the state court is neither contrary to, nor an unreasonable application of, the standard set forth in Strickland, There is no evidence that counsel deficiently represented Petitioner in the plea bargain process. To the contrary, as previously mentioned, defense counsel explained to the court that the agreement reached with the Commonwealth was for Petitioner to serve concurrent sentences on all counts, with the clarification that the sentence was "not concurrent to back time." (N.T. 8/8/00, 7). This representation, together with statements by the court concerning the charges against Petitioner, his right to a jury trial and the consequences of his plea, and the fact that the court lacked the power to make his new sentence concurrent to his back time, demonstrate that defense counsel did not perform deficiently in the plea process.*fn4 Therefore, I find that Petitioner is not entitled to relief on this claim.

  C. Claim Three (3): Unlawful Sentence — Non-Cognizable.

  In his third and final claim, Petitioner argues that the trial court imposed an unlawful sentence. Specifically, he alleges that the trial court improperly sentenced him concurrent to his back time in violation of 61 Pa. Con. Stat. Ann. § 331.21a (Commission of a Crime during parole; other terms of parole).*fn5 See Pet. atlO. Because Pennsylvania law mandates that periods of delinquency while on parole be added to the original sentence of imprisonment upon a finding of a parole violation, see 61 Pa. Con. Stat. Ann. § 331.21a(b), Petitioner's claim necessarily implicates matters of state law. Because the claim does not implicate the Constitution or the laws or treaties of the United States, see 28 U.S.C. § 2241(c)(3), 2254(a), Petitioner's final claim is non-cognizable under federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (stating it is not the province of the federal court to reexamine a state court's determination of state law).

  Accordingly, I make the following:

RECOMMENDATION
  AND NOW, this day of December, 2003, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DENIED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.

  ORDER

  AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and Respondents' answer thereto, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DENIED.
3. There is no basis for the issuance of a certificate of appealability.


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