United States District Court, E.D. Pennsylvania
January 14, 2004.
HERBERT C. HAULS, Petitioner
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
(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
(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
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
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
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
(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
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
(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
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
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
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.
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
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
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
(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
(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
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
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.
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
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
(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,
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
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
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
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
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:
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.