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.
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.
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 ...