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January 27, 2004.

FRANK D. GILLIS, et al., Respondents

The opinion of the court was delivered by: ARNOLD RAPOPORT, Magistrate Judge


Presently before the Court are the Fourth Amendment claims contained in the pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Andre Fitzgerald Cohen, a/k/a Carlton Benton ("Petitioner"), pursuant to 28 U.S.C. § 2254. For the reasons that follow, it is recommended that these Fourth Amendment claims should be denied with prejudice and dismissed without an evidentiary hearing.


  Petitioner filed his Petition on December 28, 2001, and this case was assigned to the Honorable Louis H. Pollak, who referred it to me for preparation of a Report and Recommendation ("R&R"). On September 30, 2002, this Court issued an R&R, Page 2 recommending that the Petition should be denied and dismissed in its entirety. On May 22, 2003, Judge Pollak recommitted this matter to this Court for preparation of an additional R&R. The District Attorney of Lehigh County, on behalf of all Respondents, was then ordered to file a supplemental Response to the Petition, specifically addressing the viability of Petitioner's Fourth Amendment claims construed against Kimmelman v. Morrison, 477 U.S. 365 (1986). Respondents filed an Amended Response on July 11, 2003, and this Court contacted the District Attorney of Lehigh County on August 6, 2003, and instructed that office to again supplement their Response to the Petition. Respondents then filed a Second Amended Response on September 9, 2003. Petitioner filed second written Objections to the Second Amended Response on October 2, 2003. An examination of the Fourth Amendment claims follows.


  In his remand Order, Judge Pollak specifically directed this Court to examine the viability of Petitioner's Fourth Amendment claims in light of Kimmelman, 477 U.S. 365. In Kimmelman, the United States Supreme Court ("Supreme Court") held that restrictions on federal habeas review of Fourth Amendment claims should not be extended to Sixth Amendment ineffective assistance of counsel claims where the principal allegation is counsel's failure to file a timely suppression motion. Id. at Page 3 368. Judge Pollak specifically stated that:
I find the reasoning of Kimmelman instructive in Mr. Cohen's case. Mr. Cohen litigated his Fourth Amendment claim only indirectly, and, "while [Mr. Cohen's] Fourth Amendment claim [was] one element of proof of his Sixth Amendment claim, the two claims have separate identities and reflect different constitutional values." Id. at 375. Therefore that the Sixth Amendment claim was litigated in the Superior Court does not mean that Mr. Cohen has actually litigated the Fourth Amendment claim in the state courts — and so Stone does not necessarily bar Mr. Cohen's instant Fourth Amendment claim, [fn] And Stone certainly does not bar Mr. Cohen's Sixth Amendment claim — that was the holding of Kimmelman
[fn] I say "does not necessarily bar" because it still might be said that Mr. Cohen had the opportunity to litigate the Fourth Amendment claim, but simply failed to do so. This court having noted that Mr. Cohen did not actually litigate the issue, the question then becomes whether Stone bars federal habeas litigation because Mr. Cohen could have litigated his claim in the state tribunals. In Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir. 1980), the Third Circuit noted that other courts have held that "opportunity" requires only that the state provide procedures by which one might litigate a Fourth Amendment claim. The Third Circuit explicitly refrained from joining those other courts when it "assum[ed], without deciding, that `opportunity' simply means providing procedures by which one can litigate a fourth amendment claim." Id. at 250 (emphasis added).
See Dkt. No. 11; May 21, 2003 Mem. at 6-7. Despite Judge Pollak's Order, Respondents persist in arguing that:

  This Court has brought a concern that the Petitioner might not have fully argued in Page 4 state court his claim that his arrest was warrantless, causing evidence seized before a proper warrant was issued to be inadmissible. However, it is the Commonwealth's belief that this is not the issue before the court. The Petitioner is alleging an ineffective assistance of counsel claim before this Court, and not a claim of warrantless arrest, not [sic] has he ever made that claim.

If this Court chooses to view the argument made by the Petitioner as arising out of a warrantless arrest, then it is the view of the Commonwealth that the Petitioner has not exhausted all of his remedies available to him in state court. And thus, the Petitioner's petition for habeas relief will still fail.
See Second Am. Resp. at 5-6. Nonetheless, this Court observes that in his amended counseled PCRA petition filed on May 1, 1998, Petitioner raised the issues of an alleged illegal arrest from his home, and error by trial counsel in failing to file appropriate pre-trial motions. The PCRA court held a second hearing on July 22, 1998, and additional testimony was taken. Petitioner's amended PCRA petition was denied on December 22, 1998. He then filed a nunc pro tunc appeal pro se with the Superior Court. After a hearing on September 10, 1999, Petitioner was granted leave to file this appeal, and new counsel was again appointed to represent him. On July 17, 2000, the Superior Court dismissed the appeal.

  Although Judge Pollak declined to adopt this Court's R&R because "it appears, from the face of the Superior Court's memorandum of September 20, 2001, that Mr. Cohen did not in fact Page 5 litigate his Fourth Amendment claim;" a review of the state court PCRA history reveals that Petitioner did actually litigate the Fourth Amendment issue of whether his arrest was illegal. See Dkt. No. 11; May 21, 2003 Mem. at 4-5.

  Federal habeas relief may be granted when the state court adjudication was based on an unreasonable determination of the facts in light of the evidence presented, the petitioner must demonstrate that a reasonable fact-finder could not have reached the same conclusions given the evidence. 28 U.S.C. § 2254(d)(2). If a reasonable basis existed for the factual findings reached in the state court, then habeas relief is not warranted. Campbell v. Vaucrhn, 209 F.3d 280, 290-291 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001). Furthermore, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

  Despite the PCRA court's denial of Petitioner's claim of an unlawful arrest and error by trial counsel for failure to file appropriate pre-trial motions, Petitioner here raises the following claims: (1) conviction obtained by use of evidence obtained pursuant to an unlawful arrest; (2) conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure in violation of Fourth Amendment; (3) denial of effective assistance of counsel; and (4) denial of a right of Page 6 appeal.*fn2 See Pet. at 9-11.

  As previously stated, Petitioner fully litigated his Fourth Amendment claim. Petitioner's second claim is that his conviction was obtained by use of evidence gained pursuant to an unconstitutional search and seizure in violation of the Fourth Amendment. In the Superior Court opinion, the court stated that
Appellant's final issue is a charge that trial counsel was ineffective for failing to file a motion to suppress the items found in the apartment, because the police did not have a warrant. Our Supreme Court has recently held that the legislature did not intend to limit the scope of ineffectiveness of counsel claims reviewable in PCRA proceedings, and that all constitutionally cognizable claims of ineffective assistance of counsel are reviewable under § 9543(a)(2)(ii). Commonwealth ex rel. Dadario v. Goldberg, __ Pa. __, 773 A.2d 126 (2001).
  We reject the ineffectiveness claim relating to a suppression motion on two bases. The first is the claim does not have arguable merit. Detective Dwight David Steidel of the Allentown police testified that the police requested and obtained written consent from the appellant before they searched the apartment. Therefore the warrantless search was valid and appellant Page 7 can not prevail on the merits of the claim. Even if the warrantless search was not valid, appellant can not show he was prejudiced by the search. As already discussed, appellant chose to testify about his drug use, so he cannot claim that he was prejudiced by the admission of the drug evidence.
In addition, he was not prejudiced by the admission of the physical evidence of semen on the clothing and bed sheets collected by the police. This evidence merely confirmed that appellant and the victim engaged in sexual intercourse. Both parties admitted to that. Because the evidence of semen was unrelated to the "force or threat of force" element of the crime of rape, appellant was not prejudiced by the admission of the semen stained clothing and bed sheets. The use of force was established by the knife evidence. For all of these reasons, we conclude that appellant has failed to demonstrate ineffectiveness.
In other words, if counsel had moved for suppression and had been successful in keeping out the evidence of drugs and evidence of the semen stained clothing and bed sheets, there was sufficient other evidence to convict appellant. Appellant has not shown prejudice.
See Am. Resp., Ex. A; Super. Ct. Op. at 5-6. Thus, the Superior Court examined the issue surrounding the warrantless search and seizure issue and made factual findings regarding Petitioner's ineffective assistance of counsel claims. Petitioner claims that he was convicted through the use of evidence which the police obtained pursuant to an unconstitutional search and seizure in violation of the Fourth Amendment. Petitioner contends that he was denied a full and fair hearing in state court due to the ineffectiveness of his counsel to raise and properly preserve Page 8 this issue in violation of his Sixth Amendment rights. The Supreme Court set forth the standard to be used to evaluate these claims as follows:
Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). In considering the merits of this claim of ineffectiveness, petitioner would have to prove not only that the suppression motion would have been successful, but also "that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman, 477 U.S. at 375.

  Respondents note that Petitioner's trial counsel testified at the PCRA hearing that it was the strategy of Petitioner himself to raise the issue of drug paraphernalia found in his apartment in order to bolster his defense argument that he and the victim went to his home in order to use illegal drugs and that they then had consensual sexual contact with each other. See Second Am. Resp. at 10. Respondents also note that the Pennsylvania Superior Court opined that Petitioner failed to prove that trial counsel provided ineffective assistance, and Page 9 found that the strategy used by counsel during trial was reasonable under the circumstances. Id. at 11. Respondents further trace the Superior Court's opinion where the court assumed, for the sake of argument, that even if Petitioner could establish ineffective assistance of trial counsel, he could not prove that he was prejudiced by trial counsel's alleged deficient performance. Petitioner's trial strategy was to contend that he and the victim went to his apartment to take drugs and that they had consensual sex. In his instant Petition, Petitioner presents no clear and convincing evidence to rebut this strategy. In fact, Petitioner chose to testify at his trial regarding his drug use, and it was undisputed that Petitioner and the victim engaged in sexual intercourse. Because these facts were raised by Petitioner himself at trial, Respondents contend that Petitioner is estopped from saying that if the evidence had not been used at trial, that a ...

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