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WHEELER v. VAUGHN

January 5, 2004.

AARON CHRISTOPHER WHEELER
v.
DONALD T. VAUGHN, et al



The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

Before the Court is Aaron Christopher Wheeler's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Court denies the Petition in its entirety.

I. FACTUAL AND PROCEDURAL BACKGROUND

  On October 16, 1991, at approximately 7:50 PM, Petitioner and co-defendant Jesse Bond entered a take out restaurant at 6825 Ogontz Avenue, in Philadelphia, Pennsylvania. Bond ordered a soda from the restaurant owner, Jennifer Lee, who was standing behind the counter. As Ms. Lee turned around to prepare the soda, Bond stepped behind the counter, pointed a gun at her, and announced his intention to rob the store. Bond then shot Ms. Lee four times before he and Petitioner exited the restaurant.

  On June 10, 1993, after a bench trial, the Honorable Arthur S. Kafrissen of the Philadelphia Court of Common Pleas convicted Petitioner on four counts of aggravated assault, robbery, criminal conspiracy and possession of an instrument of crime. Post-verdict motions were denied and, on June 6, 1994, Judge Kafrissen sentenced Petitioner to an aggregate term of 330 to 660 months of Page 2 imprisonment.*fn1 Trial counsel filed a notice of appeal on Petitioner's behalf with the Pennsylvania Superior Court, raising two issues: (1) whether the suppression court committed reversible error in failing to suppress Petitioner's statement to the police, and (2) whether the trial court committed reversible error in returning guilty verdicts on all four charges when the evidence showed only that Petitioner was merely present at the scene of the crime. The judgment was affirmed by the Pennsylvania Superior Court on February 22, 1996. Commonwealth v. Wheeler, 677 A.2d 1268 (Pa. Super. 1996). On April 22, 1997, the Pennsylvania Supreme Court denied allocatur. Commonwealth v. Wheeler, No. 194 E.D. Alloc. Docket 1996.

  On October 17, 1997, Petitioner filed a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), setting forth numerous claims for relief.*fn2 The PCRA court Page 3 appointed counsel for Petitioner, but his counsel sought to withdraw by the filing of a "no merit" letter with the PCRA court. The PCRA court granted counsel's request to withdraw and dismissed the PCRA petition on February 9, 1999. Petitioner appealed the order dismissing his PCRA petition to the Superior Court, which affirmed the dismissal on January 31, 2000. Commonwealth v. Wheeler, 754 A.2d 24 ( Pa. Super. 2000). The Pennsylvania Supreme Court denied review on June 6, 2000. Commonwealth v. Wheeler, 759 A.2d 385 (Pa. 2000).

  On January 26, 2001, Petitioner filed a pro se Petition for Writ of Habeas pursuant to 28 U.S.C. § 2254. The Petition asserts the following issues:
(A) The suppression court violated Petitioner's equal protection and due process rights under the Fourteenth Amendment by ruling on pretrial motions after the judge admitted that he was biased against Petitioner;
(B) The pretrial motions ruled on by the suppression court judge must be re-litigated before an impartial judge;
  (C) A new trial should be granted because state and federal law prohibits the substitution of judges after evidence probative of guilt or innocence has been heard Page 4 by the court;
 
(D) Trial counsel was ineffective based on (I) counsel's abandonment of Petitioner during the pretrial stage, leaving Petitioner alone to argue his motion to dismiss the case, (2) counsel's advising Petitioner to waive his preliminary hearing and arraignment without first explaining the consequences of such waiver, (3) counsel's failure to communicate with Petitioner regarding preparation of his defense and failure to file a motion to dismiss, (4) counsel's failure to challenge an improper "deal" allegedly entered into by both the prosecution, and Judge Pamela Cohen, with witness Anthony Sheppard, and (5) counsel's failure to provide Petitioner with copies of discovery submissions so that he could assist in the preparation of his defense;
(E) The suppression court's denial of his motion to dismiss violated his constitutional right to a speedy trial;
(F) The trial verdict was contrary to the law;
(G) The trial verdict was against the weight of the evidence;
(H) The trial court erred in sentencing Petitioner to consecutive terms of imprisonment when all the charges arose out of the same incident and should have merged for sentencing purposes;
(I) The trial court erred by failing to suppress the testimony of witness Anthony Sheppard under applicable state and federal professional responsibility rules;
(J) The prosecutor's conduct violated applicable state and federal professional responsibility rules;
(K) Because the prosecutor's conduct violated applicable state and federal professional responsibility rules, the testimony of witness Anthony Sheppard should be suppressed;
(L) The record contains sufficient evidence of prosecutorial misconduct to remand for a new trial;
  (M) The PCRA court committed reversible error by accepting PCRA counsel's submission of a "no merit" Page 5 letter because (1) counsel filed said letter without first investigating the facts of the case and researching the applicable law, as the letter did not detail the nature and extent of any investigation or research, (2) counsel's letter did not explain why Petitioner's case was meritless, (3) the court failed to independently review the record and Petitioner's claims, (4) the court did not inform Petitioner of any defects in his PCRA petition or give him an opportunity to cure any defects;
 
(N) The PCRA court committed reversible error by accepting counsel's "no merit" letter because (1) counsel never communicated with Petitioner during the entire year in which his petition was pending, (2) counsel did not forward a copy of the letter to Petitioner, (3) counsel falsely stated that she reviewed Petitioner's submissions, when he never submitted anything to her because he was not even aware that counsel had been appointed;
(O) The suppression court committed reversible error in failing to suppress a statement by Petitioner that was taken in violation of the "six-hour" rule under Pennsylvania law; and
(P) The trial court committed reversible error in returning verdicts of guilty on all four charges because the prosecution's evidence only showed that Petitioner was merely present at the scene of the crime.
  The Court referred this case to Magistrate Judge Carol Sandra Moore Wells for a Report and Recommendation pursuant to 28 U.S.C. § 636. On May 30, 2003, the Magistrate Judge filed a Report and Recommendation ("Report") recommending that the Petition for Writ of Habeas Corpus be denied in all respects, without an evidentiary hearing. Petitioner timely filed objections to the Magistrate Judge's Report. In addition to challenging the Report in its entirety, Petitioner objects to the Magistrate Judge's failure to rule on two of his motions prior to the issuance of the Report. Page 6

 II. LEGAL STANDARD

  Where a habeas petition has been referred to a magistrate judge for a Report and Recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made . . . [The Court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b).

 III. DISCUSSION

  A. Magistrate Judge's Failure to Rule on Petitioner's Motions

  1. Petitioner's outstanding discovery motion

  On December 24, 2001, Petitioner filed an application for leave to conduct discovery in connection with the instant Petition. (Doc. No. 7.) On January 4, 2002, the Magistrate Judge denied the motion without prejudice, in anticipation that any relevant documents would be attached to Respondents' forthcoming Answer to the Petition. (Doc. No. 10.) Respondents filed the Response to the Petition on January 31, 2002. (Doc. No. 13.) Attached as exhibits to the Response were copies of the Superior Court decision affirming Petitioner's convictions on direct appeal, the order of the Pennsylvania Supreme Court denying allowance of direct appeal, the "no merit" letter filed by his court-appointed PCRA counsel, the PCRA court opinion dismissing Petitioner's petition, the Superior Court decision affirming the PCRA court, the order of Page 7 Pennsylvania Supreme Court denying allowance of PCRA appeal, Petitioner's PCRA petition, and Petitioner's PCRA appellate brief.

  On February 6, 2002, Petitioner filed a renewed application for leave to conduct discovery. (Doc. No. 14.) In the application, Petitioner listed a number of document requests, which included copies of transcripts from prior proceedings, witness lists from his trial, documentation of the alleged "deal" between the prosecution and witness Anthony Sheppard and of the sentence imposed on Sheppard for cooperating, any drawings of the alleged perpetrators of the crimes for which he was convicted, any notes or interviews of Petitioner's counsel concerning representation of Petitioner, police reports of Petitioner, all orders and other decisions rendered by the state courts, the appellate brief filed by counsel on Petitioner's behalf, and any other exculpatory evidence. Petitioner alleges that the Magistrate Judge never ruled on this motion. Without access to the above documents, Petitioner contends that he could not fully pursue the instant Petition. The docket confirms that the Magistrate Judge never ruled on Petitioner's motion for leave to conduct discovery. Accordingly, the Court has considered the merits of Petitioner's discovery motion in the first instance.

  "A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 905 (1997). Instead, Page 8 Habeas Corpus Rule 6(a) ("Rule 6(a)") provides that "[a] party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Rule 6(a) 28 U.S.C. foll. § 2254. A petitioner establishes "good cause" for discovery under Rule 6(a) "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is. entitled to relief." Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)); see also Marshall v. Hendricks, 103 F. Supp.2d 749, 760 (D.N.J. 2000) (noting that good cause is established "[i]f a petitioner can point to specific evidence that might be discovered that would support a constitutional claim").

  In his application for discovery, Petitioner contends that the Respondents' opposition brief misstated portions of the trial court record. Specifically, Petitioner alleges that, contrary to the Respondents' assertions, the trial record does not establish that three independent witnesses testified that co-defendant Jesse Bond was accompanied and assisted by a second man and that Petitioner suggested robbing the convenience store. Petitioner requests copies of the trial transcripts for the purpose of showing the Court "that the Respondents have misstated the record to the Court in their response in numerous places." (Pet. Disc. Mot. ¶ 7.) Page 9

  Petitioner's discovery request is clearly prompted by his concern that this Court will rely solely on the Respondents' characterization of the trial court record in ruling on the claims in the instant Petition. Petitioner's fears are unfounded, however, as the entire trial court record has been submitted to, and carefully reviewed by, this Court. Any evidence in the trial record that supports his constitutional claims has, as a practical matter, already been discovered. As Petitioner's request for production of the trial record is without merit, his objection is overruled in this respect.

  Petitioner also requests production of numerous other documents and materials, baldly alleging that "without these documents he will be denied of his right to file one all-inclusive habeas petition." (Pet. Disc. Mot. ¶ 6.) Without specific allegations in support of these discovery requests, it is impossible for the Court to determine whether Petitioner may, if discovery were permitted, be able to demonstrate that he is entitled to habeas relief. As a "fishing expedition" for evidence to support claims does not constitute good cause for habeas discovery, Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994), his objection is overruled in this respect.*fn3 Page 10

  2. Petitioner's newly discovered evidence motion

  On May 22, 2002, Petitioner filed with the Magistrate Judge a motion to supplement his habeas petition with newly discovered evidence. (Doc. No. 18.) The newly discovered evidence pertains to a "no merit" letter that was filed by Patricia Dugan, who had Page 11 been appointed by the state court to represent Petitioner on his collateral appeal under the PCRA.*fn4 In the motion, Petitioner contends that Dugan has admitted that, contrary to statements made in her "no merit" letter, she did not communicate with Petitioner about the issues raised in his PCRA appeal or otherwise receive information from him about his case before filing the "no merit" letter with the PCRA court. Petitioner maintains that the PCRA court's decision to dismiss his petition, which he assumes was based exclusively on Dugan's "no merit" letter, has been called into question by this newly discovered evidence. The docket confirms that the Magistrate Judge did not rule on Petitioner's newly discovered evidence motion prior to the filing of the Report and Recommendation. Accordingly, the Court has considered the merits of Petitioner's newly discovered evidence motion in the first instance.

  As an initial matter, the Court observes that the "newly discovered evidence" cited by Petitioner far from establishes that Dugan made the admissions attributed to her by Petitioner. To support his contentions that Dugan filed a misleading "no merit" letter, Petitioner cites language from an appellate ...


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