United States District Court, E.D. Pennsylvania
December 31, 2003.
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
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, 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
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
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
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
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
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
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
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:
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.
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
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.