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HAULS v. MEYERS

United States District Court, E.D. Pennsylvania


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 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise, they risk depriving the state courts of the "opportunity to correct their own Page 5 errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3rd Cir. 1993).

  However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman v. Thompson, 501 U.S. 722, 735 n.l, 111 S.Ct. 2546, reh'g denied, 501 U.S. 1277, 112 So. Ct. 27 (1991); McCandless v. Vaughn, 172 F.3d 255, 260 (3rd Cir. 1999). The procedural default barrier precludes federal courts from reviewing a state petitioner's federal claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 729. "In the context of direct review of a state court judgment, [this] doctrine is jurisdictional . . .[b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. "In the absence of [the procedural default doctrine] in federal habeas, habeas petitioners would be able to avoid the exhaustion doctrine by defaulting their federal claims in state court." Id. at 732.

  As noted above, respondent contends that petitioner's failure to raise his points of error on direct appeal at the state court level constitutes a failure to exhaust, which in turn, results in procedural default of his claim. We agree that petitioner has failed to carry his burden. The Post Conviction Relief Act's jurisdictional statute of limitations and "Previous Litigation and Waiver" provision foreclose state review of petitioner's claims of error. See 42 Pa.C.S.A. §§ 9544 and 9545. Thus, petitioner is not entitled to federal review unless he can show that his default should be excused. Such excuse is allowed only where the petitioner can show "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate Page 6 that failure to consider the claims would result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Here, petitioner has neither alleged cause and prejudice, nor shown that the court's failure to consider his claim would result in a miscarriage of justice. Consequently, the first portion of petitioner's fourth claim, that he was denied his right to court-appointed counsel on his direct appeal, is dismissed without consideration on the merits.

 III. STANDARD OF REVIEW

  Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for Writ of Habeas Corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues — a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court as follows:

An application for a writ of habeas corpus on behalf of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless that adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) 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).

  The United States Supreme Court, in Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495 (2000), interpreted the standards established by the AEDPA regarding the deference to be accorded state court legal decisions, and more clearly defined the two-part Page 7 analysis set forth in the statute. Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to" the "clearly established federal law, as determined by the Supreme Court of the United States." As defined by Justice O'Connor, writing for the majority of the Court on this issue, a state court decision can be contrary to Supreme Court precedent in two ways: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] court on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. She explained, however, that this "contrary to" clause does not encompass the run-of-the-mill state court decisions "applying the correct legal rule from Supreme Court cases to the facts of the prisoner's case." Id. at 406.

  To reach such "run-of-the-mill" cases, the Court turned to an interpretation of the "unreasonable application" clause of § 2254(d)(1). It found that a state court decision can involve an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407-08. The Court specified, however, that under this clause, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410. Page 8

 IV. DISCUSSION OF MERITS

  As discussed in the preceding section, the first portion of petitioner's fourth claim is procedurally defaulted, and thus we do not reach a discussion of the merits of that claim. A discussion of the merits of petitioner's first three claims and the second portion of his fourth claim follows.

  Petitioner's first claim is that he suffered a fundamental miscarriage of justice because he was innocent by reason of self-defense.

  In order to be cognizable, a claim must have a federal constitutional basis, and a claim of actual innocence, in itself, does not. See Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862 (1993). Rather, innocence or lack thereof is determined by a state court applying state law, and such a determination may not normally be disturbed by a federal habeas court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Here, the state courts examined petitioner's claim of innocence by reason of self-defense, and found him guilty of third degree murder. Petitioner's claim was based on the following allegations:

(1) the victim was armed with a butcher knife at the time of the killing;*fn1
(2) the victim had attacked petitioner with a hammer the night prior to the killing;*fn2 and
  (3) the police concocted lies about the state of the crime scene.*fn3 Page 9

  Under Commonwealth v. Murphy, 657 A.2d 927 (Pa. 1995), the court must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom were sufficient to prove all elements of the offense beyond a reasonable doubt, when viewed in the light most favorable to the prevailing party, here, the Commonwealth.

  Specific intent to kill is not an element of third degree murder. Rather, murder in the third degree is defined as a killing with malice, distinguishing it from voluntary manslaughter. Commonwealth v. Seibert, 622 A.2d 361 (Pa. Super. 1993), appeal denied, 642 A.2d 485 (Pa. 1995), states that malice may be proved by showing a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty, even if there is no intent to harm. A court may also find malice where the defendant has attacked a vital part of the victim's body with a deadly weapon. Commonwealth v. Cruz-Centano, 668 A.2d 536 (Pa. Super. 1995).

  In a third degree murder case such as this, the burden is on the Commonwealth to prove that the defendant did not kill the victim in self defense. The Commonwealth may meet this burden by proving any one or more of the following beyond a reasonable doubt: (1) the defendant did not reasonably believe he was in danger of death or serious bodily injury at the time of the killing; (2) the defendant provoked the use of force; (3) considering the surrounding circumstances, the defendant used more force than reasonably necessary to protect himself from death, serious bodily injury, or the commission of a felony; (4) the defendant had a duty to retreat and could do so in total safety. Commonwealth v. Miller, 634 A.2d 614 (Pa. Super. 1993); Commonwealth v. McClain, 587 A.2d 798 (Pa. Super. 1991).

  Voluntary manslaughter, in contrast to third degree murder, is an intentional Page 10 killing without malice. Such a killing occurs in the heat of passion where the defendant has been adequately provoked and there has been insufficient time for his blood to cool, or where the defendant acts on an actual, but unreasonable belief that his killing is in self defense. Commonwealth v. Garcia, 535 A.2d 1186 ( Pa. Super. 1988). An "objective" test is used to determine whether or not the defendant killed his victim in the heat of passion with adequate provocation. Commonwealth v. Miller, 374 A.2d 1273 (Pa. 1977).

  It is the duty of the fact finder to determine whether or not the crime was committed in self defense, and thus, whether or not it may be classified as voluntary manslaughter. Commonwealth v. Hill, 629 A.2d 949 (Pa. Super. 1993); McClain, 587 A.2d at 798; Garcia, 535 A.2d at 1186.

  Here, the state courts found that petitioner was not acting in self defense when he shot his tenant multiple times in the back with a handgun after the latest episode of an ongoing dispute. Petitioner was not in any danger of serious bodily harm or death at the time of the shooting. As well, the evidence failed to show that petitioner was adequately provoked by his tenant's words or actions prior to the shooting, or that petitioner possessed an unreasonable belief that the shooting was necessary to protect himself from his tenant.

  Considering that petitioner acted neither in the heat of passion induced by adequate provocation, nor under a mistaken belief that deadly force was necessary to protect his person, the state courts found him guilty of third degree murder. We agree, and as such, we must dismiss the habeas petition as to this claim.

  Petitioner's second claim is that his trial counsel's conduct amounted to ineffective assistance. Specifically, petitioner claims that his trial counsel was ineffective for the Page 11 following reasons:

(1) counsel charged a fee to "switch trial judges;"
(2) counsel requested $50,000 from petitioner to bribe Judge Richette;
(3) counsel failed to impeach police officers who offered perjured testimony at trial;
(4) counsel failed to obtain hospital records;
(5) counsel failed to obtain police reports detailing an attack made on petitioner by the victim's girlfriend the night prior to the murder;
(6) counsel failed to introduce into evidence crime lab reports showing that petitioner's fingerprints were not on the knife allegedly wielded by the victim; and
(7) counsel failed to demand the production of petitioner's sneakers, which were allegedly bloody.
  When reviewing claims of ineffective assistance of counsel, this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different, absent the alleged ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, reh'g denied, 467 U.S. 1267, 104 So. Ct. 3562 (1984). The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. Const., amend. VI. The Supreme Court has set forth a two-prong test — both parts of which must be satisfied — by which claims alleging counsel's ineffectiveness are adjudged. Id. at 668. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. The Supreme Court has explained that:

  A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's Page 12 perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 107, 76 S.Ct. 158, 163-64 (1955)).

  A convicted defendant asserting ineffective assistance must, therefore, identify the acts or omissions that are alleged not to have been the result of reasoned professional judgment. Id. at 690. Then, the reviewing court must determine whether, in light of all the circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance." Id. Under Pennsylvania law, counsel is not ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Wilson, 393 A.2d 1141, 1143 (Pa. 1978).

  Second, the petitioner must demonstrate that his counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694. A reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. If it is easier to dispose of an ineffectiveness claim for lack of the requisite prejudice, that course should be followed. Id. at 697.

  Petitioner has merely made sweeping allegations with respect to his claim for ineffective assistance. He made no effort to offer evidence in support of his specific claims of ineffective assistance. He never questioned his counsel about the illegal fees he alleges were demanded of him. In addition, he neglected to provide the Superior Court with the hospital records and crime lab reports allegedly in his favor, and thus the court had no means by which to Page 13 evaluate whether or not counsel should have offered them into evidence.

  The police reports which petitioner claims his counsel failed to obtain were not essential in that they would merely have echoed petitioner's undisputed testimony as to the incidents which occurred the night prior to the murder. Also, counsel's failure to impeach the police officers who testified is of no moment, as petitioner has failed to come up with any evidence which his counsel could have used to do so.

  Because petitioner's claims of ineffective assistance lack specificity and support, they fail to meet the standard laid out in Strickland, Thus, the Superior Court's determination that trial counsel was not ineffective is objectively reasonable.

  Even if petitioner had shown counsel's performance to be deficient, he would not have been able to show that he suffered prejudice as a result. As has been previously discussed, petitioner clearly possessed the malice required to convict him of murder in the third degree. Thus, petitioner's claim of ineffective assistance of counsel is without merit. As such, we must dismiss the habeas petition as to this claim.

  Petitioner's third claim is that the government engaged in prosecutorial misconduct by supporting perjured testimony. Petitioner's specific contentions against the government are the following:

(1) the presentation of Officer Lee's perjured testimony;
(2) the withholding of lab reports which were in petitioner's favor; and
(3) the withholding of detective interview reports which were in petitioner's favor.
  In order to determine whether the above allegations are meritorious, the court must regard the conduct of the prosecutor in the context of the trial as a whole. See Greer v. Miller, Page 14 483 U.S. 756, 766 (1987). In order for petitioner to prevail, the prosecutor's actions must have been so offensive as to amount to a constitutional violation. See id. In other words, the issue is whether the actions of the government so infected the trial with unfairness as to deny the defendant due process of law. See Darden v. Wainwright, 477 U.S. 168, 181 (1986), citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

  Even if petitioner could prove that the government violated the Constitution, he would still have to show that the state courts acted in an objectively unreasonable manner when they dismissed his prosecutorial misconduct claims.

  With respect to petitioner's claim that the prosecutor offered the perjured testimony of Officer Lee, petitioner fails to state with specificity the portion of the testimony he believes to have been perjured. Where a motion fails to disclose false testimony, and fails to show that the government knowingly used such testimony to its benefit, a petitioner cannot prove that he has been denied due process. See Smith v. United States, 358 F.2d 683, 684 (3rd Cir. 1966). Thus, petitioner has not shown that the government has committed an error of constitutional significance.

  Petitioner's claims that the government withheld lab reports and detective interview reports which were in his favor are also too general to amount to a denial of due process. Petitioner has failed to either produce the reports themselves or assert which portions of the reports provide evidence in his favor.

  The state courts found petitioner's contentions of prosecutorial misconduct to be meritless. Because petitioner has fallen short of his burden to prove otherwise, it cannot be said that the determinations made by the state courts are objectively unreasonable. As such, we must Page 15 dismiss the habeas petition as to this claim.

  The second portion of petitioner's fourth claim is that he was denied his right to court-appointed counsel on his PCRA appeals.

  In Hassine v. Zimmerman, 160 F.3d 941, 954 (3rd Cir. 1998), the court held that "the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceedings does not enter into the habeas calculation." Thus, whether or not the PCRA court denied petitioner his right to effective assistance of counsel is irrelevant, because it is not cognizable in federal habeas corpus. As such, we must dismiss the habeas petition as to this claim, and in its entirety.

  Therefore, I make the following:

RECOMMENDATION
  AND NOW, this ___ day of January, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.


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