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HAULS v. MEYERS

January 14, 2004.

HERBERT C. HAULS, Petitioner
v.
ROBERT W. MEYERS, et al. Respondents



The opinion of the court was delivered by: LINDA CARACAPPA, Magistrate Judge

REPORT AND RECOMMENDATION

Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner previously incarcerated in the State Correctional Institution at Rockview, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.

I. PROCEDURAL HISTORY

  On December 15, 1995, following a bench trial presided over by the Honorable Lisa Aversa Richette of the Philadelphia County Court of Common Pleas, petitioner was convicted of third degree murder and possession of an instrument of crime (PIC). Specifically, petitioner was found guilty of fatally shooting one of his tenants in the back at the culmination of a long-term landlord tenant dispute. On September 12, 1996, petitioner filed a post-verdict motion, alleging the following:
(1) that his claim of self-defense had not been rebutted by the Commonwealth;
  (2) that the evidence put forth by the government was not sufficient to support his conviction; and Page 2
 
(3) that his counsel's failure to call material witnesses amounted to ineffective assistance.
Petitioner's motion for extraordinary relief was denied on December 6, 1996, after three evidentiary hearings had been held. On February 18, 1997, the trial court sentenced petitioner to imprisonment for five to ten years for the murder, and imposed a concurrent lesser sentence of one to two years for the possession of an instrument of crime (PIC).
  Petitioner's right to a direct appeal was reinstated nunc pro tunc, and shortly thereafter he appealed to the Pennsylvania Superior Court, alleging the following:
(1) that the evidence put on by the Commonwealth was not sufficient to sustain his conviction;
(2) that the government engaged in prosecutorial misconduct; and
(3) that his counsel's conduct during his post verdict motions amounted to ineffective assistance.
  Finding these claims to be meritless, the Superior Court denied petitioner's appeal on December 8, 1999. Commonwealth v. Hauls, 750 A.2d 369 (Pa. Super. 1999). Petitioner subsequently appealed to the Pennsylvania Supreme Court, but his request for allocatur was denied on May 23, 2000. Commonwealth v. Hauls, 758 A.2d 1196 (Pa. 2000).
  Petitioner then filed a petition for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541, et seq., on July 6, 2000, alleging the following:
(1) that the police both tampered with the scene of the crime and attempted to frame petitioner through perjured testimony at trial;
(2) that his counsel's failure to put forth evidence of the above mentioned tampering and perjury amounted to ineffective assistance; and
  (3) that the police, the government, and the medical examiner were all involved in tampering with the ballistics evidence. Page 3

 The court appointed counsel filed a "no merit" letter, requesting to be removed from the case. Counsel's petition to withdraw was granted, and on September 24, 2001, the petition for collateral relief was dismissed.

  Petitioner then appealed to the Superior Court, alleging that his PCRA counsel's failure to file a brief amounted to ineffective assistance, and that he was denied his right to a fair trial on PCRA review as a result of Judge Richette's bias.

  Because petitioner failed to properly raise and develop the claims in his brief, it was quashed by the Superior Court on November 12, 2002. Commonwealth v. Hauls, 816 A.2d 329 (Pa. Super. 2002).

  Petitioner has since been released from prison, and is currently out on parole. On August 25, 2003, he filed his Petition for Writ of Habeas Corpus, alleging the following claims:
(1) that because he acted in self-defense, he is not guilty of the crimes for which he was convicted, and thus there has been a fundamental miscarriage of justice;
(2) that his trial counsel's failure to obtain hospital records and police and crime lab reports amounted to ineffective assistance;
(3) that the government engaged in prosecutorial misconduct in supporting perjured testimony; and
(4) that he was denied his right to court-appointed counsel on both his direct and PCRA appeals.
  Respondent retorts that petitioner presents a mixture of claims, all of which are either not cognizable under federal habeas review, entirely meritless, or procedurally defaulted, and thus none of which provide a basis for habeas relief.

 II. PROCEDURAL DEFAULT

  With respect to the first portion of claim four, respondent asserts that petitioner's Page 4 claims of error on direct appeal are procedurally defaulted because they were never presented at the state court level. Petitioner made the following specific claims of error:
(1) that his counsel failed to file a brief with the court on his first direct appeal;
(2) that his counsel failed to file a brief or request an evidentiary hearing on his appeal nunc pro tunc;
(3) that the trial court failed to appoint alternate counsel on his appeal nunc pro tunc; and
(4) that he was deprived of his right to counsel on his direct appeal allocatur.
Maintaining that petitioner has not exhausted his state court remedies and could not do so now, respondent urges the court to dismiss the petition as to this claim.

  Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c) (1994); Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059, reh'g denied, 490 U.S. 1076, 109 S.Ct. 2091 (1989). In other words, a petitioner must invoke "one complete round of the state's established appellate review process," in order to exhaust his remedies. O'Sullivan, 526 U.S. at 845. A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demand, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3rd Cir. 1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750 ...


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