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
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.
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.
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, ...