United States District Court, E.D. Pennsylvania
March 31, 2004.
PATRICK TOUSSAINT, Petitioner,
EDWARD KLEM, et al., Respondents
The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
MEMORANDUM AND ORDER
Presently before the Court are the Report and Recommendation of United
States Magistrate Judge Peter B. Scuderi and objections thereto filed by
pro se Petitioner Patrick Toussaint ("Petitioner"), who is currently
incarcerated at the Mahanoy State Correctional Institute in
Pennsylvania. On December 6, 1996, a jury in the Court of Common Pleas of
Philadelphia County (the "Court of Common Pleas") convicted Petitioner of
three counts of rape, involuntary deviate sexual intercourse, and
kidnapping. On May 15, 1997, Petitioner was sentenced to an aggregate
term of seven-to twenty-years of imprisonment for these convictions.
On October 24, 2002, Petitioner filed a Petition for a Writ of Habeas
Corpus (the "Petition") with this Court, pursuant to
28 U.S.C. § 2254.*fn1 In accordance with 28 U.S.C. § 636 and
Rule of Civil Procedure 72.1, this Court referred the Petition for a
Report and Recommendation to Magistrate Judge Scuderi, who, on August
26, 2003, recommended that this Court deny the Petition because
Petitioner's claims are procedurally defaulted or otherwise without
merit. On September 8, 2003, Petitioner filed his objections to the
Report and Recommendation with this Court.
For the following reasons, Petitioner's objections are OVERRULED,
Magistrate Judge Scuderi's Report and Recommendation is ACCEPTED and
ADOPTED as supplemented by this memorandum, and Petitioner's Petition for
a Writ of Habeas Corpus is DENIED.
A. Factual History
During two separate snow storms, Petitioner, an employed taxicab
driver, offered both of his victims a ride in his personal automobile.*fn2
Taxicabs were not in operation due to the inclement weather. Both
victims, during each of their respective encounters with Petitioner,
accepted his offer of a ride. Upon entering his automobile, each victim
introduced herself to Petitioner by name, but Petitioner nevertheless
chose to refer to each of the women, on each occasion, as "Boo." Each of
victims had requested that Petitioner drive her to a specific
destination, and with each of the victims, Petitioner proceeded to take
The first victim, K.H., entered Petitioner's car at 5:30 p.m. on
January 9, 1996. Instead of driving K.H. to her mother's home, as she had
requested, Petitioner drove her to his apartment. Upon arrival at his
apartment complex, Petitioner parked his taxicab in such a way that
K.H.'s exit was barricaded by a snow bank. With K.H. confined in his car,
Petitioner retrieved a beer from his apartment, returned to the car,
drank the beer, and then began to drive around again. K.H. pled with
Petitioner to drive her home, but this request resulted in Petitioner
angrily screaming and banging his fists on the steering wheel. Petitioner
drove K.H. to Fairmount Park, again parking next to a snow bank that
prevented any attempt of flight, and raped K.H. After Petitioner left
Fairmount Park, he returned to his apartment and brought K.H. inside. At
this point, K.H. attempted to flee, but Petioner grabbed her, threatened
to kill her, and then raped her a second time before taking her home.
Petitioner's second victim, M.D., entered Petitioner's car at 11:45
a.m. on February 6, 1996. Instead of driving M.D. to her mother's place
of work, as she had requested, Petitioner drove her to his apartment.
Upon arrival, Petitioner invited M.D. into his apartment and she
voluntarily accepted his
invitation. Once inside, Petitioner threatened to kill M.D. if she
did not have sex with him, and then raped her. After engaging in
repeated, sexual assaults on M.D., Petitioner drove her to the Chester
Both victims, K.H. and M.D., reported their assaults to the authorities
and each positively identified Petitioner*fn3 as their attacker.
B. Procedural History
Petitioner was arrested and charged with two counts of rape and
kidnapping of K.H., and one count of rape and involuntary deviate sexual
intercourse with regard to M.D. On July, 10, 1996, Judge Carolyn Engel
Temin granted the Commonwealth's motion to consolidate these two cases in
the Court of Common Pleas. Petitioner moved to sever the two
indictments, but his motion was denied. On December 6, 1996, after a jury
trial before Judge D. Webster Keogh, Petitioner was convicted of all
charges. Judge Keogh sentenced Petitioner to an aggregate term of
seven-to twenty-years imprisonment. Petitioner timely filed post-sentence
motions, and on September 29, 1997, Judge Keogh denied these
On October 7, 1997, after the denial of his post-sentence motions,
Petitioner appealed his conviction to the Superior Court of
Pennsylvania, claiming only that his case was improperly consolidated.
The Superior Court affirmed his conviction in Commonwealth v. Toussaint,
736 A.2d 15 (Pa. Super. 1998). Petitioner then filed a Petition for
Allowance of Appeal to the Supreme Court of Pennsylvania, and the Supreme
Court provided final judgment in his case with its Order denying
allocatur in Commonwealth v. Toussaint, 794 A.2d 361 (Pa. 1999).
Following this denial, Petitioner sought collateral state relief under
Pennsylvania's Post-Conviction Relief Act ("PCRA") on January 13, 2000 by
filing a pro se petition in the PCRA court, which would be presided over
by Judge Koegh. Petitioner claimed for the first time that he was denied
effective assistance of his trial and direct appellate counsel and,
again, that the improper consolidation of his two indictments denied him
a fair trial. Specifically, Petitioner claimed that his trial counsel
failed to challenge the Commonwealth's testimony or have his employer
testify as a character witness for Petitioner at trial. Petitioner also
asserted that his appellate counsel erred
by not raising trial counsel's ineffectiveness.
After filing his pro se PCRA petition, Petitioner was appointed PCRA
counsel, who subsequently filed a no-merit letter containing a request to
withdraw pursuant to Commonwealth v. Finlev, 550 A.2d 213, 215 (Pa.
Super. 1988). Following an independent review on the merits of all of
Petitioner's claims, on May 31, 2001, Judge Keogh dismissed Petitioner's
PCRA petition and allowed Petitioner's PCRA counsel to withdraw.*fn5
Petitioner appealed Judge Koegh's dismissal of his PCRA petition to the
Superior Court of Pennsylvania listing improper consolidation and
ineffective assistance of counsel on his "statement of issues to be
raised on appeal."*fn6 The Superior Court ruled only on Petitioner's
consolidation claim because the Court said that while Petitioner listed
four issues in his "Statement of Questions Involved," the other issues
raised were not addressed in the argument section of his brief.*fn7 The
Superior Court held that Petitioner's consolidation claim was "not a
cognizable [PCRA] claim" because it was "fully and finally litigated in
Petitioner's direct appeal." Commonwealth v. Toussaint, No. Civ. A. 1774
EDA 2001 (Pa. Super. Ct. Feb. 12, 2003).
On October 24, 2002, Petitioner filed the instant Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 with this Court.
Petitioner appears to assert that: (1) the state court improperly
consolidated the two aforementioned indictments against him; (2) he was
denied effective assistance of trial and appellate counsel; (3) the
district attorney denied him access to certain reports and evidence
during and after trial; and (4) he was never advised of his immigration
status at trial. The District Attorney of Philadelphia ("Respondent")
responded that Petitioner's first claim of improper consolidation is
without merit and all other claims are procedurally defaulted.
On August 26, 2003, after a thorough review of the Petition's merits,
Magistrate Judge Scuderi issued a Report and Reccommendation agreeing
with Respondent that Petitioner's first claim of improper consolidation
was meritless. Judge Scuderi also agreed that Petitioner's remaining
claims were procedurally defaulted. On September 8, 2003, Petitioner
filed objections to
Magistrate Judge Scuderi's Report and Recommendation, which this
Court will address below.
This Court reviews de novo those portions of the Magistrate Judge's
Report and Recommendation to which specific objections have been made.
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Petitioner objects,
although it is not entirely clear from his repetitive submission, to the
Report's finding that Petitioner's two indictments were properly
consolidated, and that his other three remaining claims were procedurally
defaulted. Petitioner's remaining claims were as follows: (I) that his
trial and appellate counsel were ineffective; (2) that Respondent
withheld evidence; and (3) that he was never advised of his immigration
status during trial.
Absent exceptional circumstances, a federal court, guided by principles
of federalism and comity, will not entertain the claims of a habeas
petition unless the petitioner has exhausted all available state
remedies. 28 U.S.C. § 2254 (b)(1); 0'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999); Lambrix v. Singletary, 520 U.S. 518, 523
(1997). This exhaustion requirement is not met unless the petitioner has
given the state
court the initial opportunity to pass upon and correct alleged violations
of the petitioner's constitutional rights. 0'Sullivan, 526 U.S. at
844-45. The petitioner can meet this exhaustion requirement if he allows
"the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the established appellate review
process." Id. at 845. Exhaustion does not require that the highest state
court rule on the merits of a petitioner's claim, but only that the court
be given the opportunity to do so. Swanger v. Zimmerman, 750 F.2d 291,
295 (3d Cir. 1984). For example, if the petitioner's direct appeal from
the trial court's judgment on a constitutional issue is unsuccessful, he
may then petition for a writ of appeal on that issue to the state's
highest court, and if, like in this case, the highest state court denies
allocatur, then that constitutional issue will be deemed exhausted for
federal habeas review purposes.
The claim presented for federal habeas review must first be "fairly
presented" to the state courts to be considered exhausted, and the burden
of proving exhaustion of all state remedies rests on the habeas
petitioner. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). If a
petitioner has not "fairly presented" his or her claims to the state
courts, but no state avenue remains available for such purpose, such
unexhausted claims may be deemed exhausted, even if the state courts have
had the opportunity to examine the merits. See Gray v. Netherland,
518 U.S. 152, 161 (1996). Federal habeas review of the merits of such
claims is nevertheless precluded if the "prisoner has defaulted his
federal claims in state court pursuant to independent and adequate state
procedural rule. . . ." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Upon this Court's review of the record, it is clear that Petitioner
never presented his claims to the state courts alleging ineffective
assistance of counsel, withholding of evidence, or failure of being
advised of his immigration status. On direct appeal, Petitioner
challenged only the consolidation of his cases. Commonwealth v.
Toussaint, No. Civ. A. 4228 Phil. 1997, 136 A.2d 15 ( Pa. Super. 1997).
Then, on state collateral review, Petitioner's appeal of the PCRA court's
denial of his PCRA petition, at best, raised a claim for ineffective
assistance of trial and appellate counsel and other matters, but only
actually argued in his appellate brief that the consolidation of his two
indictments was in error. This Court fully agrees with Judge Scuderi's
Report and Recommendation that consolidation is the only exhausted
B. Procedural Default
1. Claims Not Raised in State Court
As Petitioner failed to raise on direct review any claims of
ineffective assistance of counsel or that involve evidence and
immigration status information allegedly withheld from him, Petitioner
has not exhausted these claims. However, an attempt to exhaust these
claims now would be fufile because the PCRA's statute of limitations,
within which Petitioner has one year to file any and all PCRA petitions,
has run. See 42 Pa. Cons. Stat. § 9545(b)(1). Since Pennsylvania's
statute of limitations procedurally bars any attempt at further relief,
Petitioner's claims of ineffective assistance of counsel, withholding of
evidence and failure to be advised of his immigration status are,
accordingly, procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722,
731-32 (1991); Engle v. Isaac, 456 U.S. 107, 125-26 n.28 (1982).
2. Claims Not Argued in PCRA Court
Petitioner's claims raised in his PCRA court appellate brief, like his
claim of ineffective assistance of counsel,*fn8 are also procedurally
defaulted because his failure to argue them functionally waived the
issues on state collateral appeal. See
42 Pa. Cons. Stat. Ann. § 9544(b). "If the petitioner mentions an
issue, but fails to develop any argument with respect to the issue in his
brief, the issue may also be deemed waived." Ramos v. Kvler, No. Civ. A.
03-2051, 2003 U.S. Dist LEXIS 23387, at *16 (E.D. Pa. Nov. 17, 2003)
(citing Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996);
Commonwealth v. Long, 753, A.2d 272, 279 (Pa. Super. 2000); Commonwealth
v. Maris, 629 A.2d 1014, 1016-17 (Pa. Super. 1993); Pa. R. App. P. 2111;
Commonwealth v. Rivera, 685 A.2d 1011 (Pa. Super. 1996)). Despite
petitioner's pro se status, he is not exempt from the requirement to
"properly raise and develop appealable claims." Id. at *17 (citing
Commonwealth v. White, 674 A.2d 253, 257 n.6 (Pa. Super. 1996)). Once a
claim is deemed waived in the state court, it becomes procedurally
defaulted and is therefore not reviewable by a federal court. Id. (citing
Werts v. Vaughn, 228 F.3d 178, 192 n.9 (3d Cir. 2000), cert. denied,
523 U.S. 980 (2001)).
In Petitioner's PCRA appeal, the Superior Court of Pennsylvania
explicitly denied review of all but one of Petitioner's claims because
Petitioner failed to develop any argument in his brief with respect to
the denied claims. Commonwealth v. Toussaint, No. Civ. A. 1774 EDA 2001
(Pa. Super. Ct. Feb. 12, 2003). Alhough petitioner may have initially
presented his ineffective assistance claim in his "Statement of
Questions Involved" to be raised on appeal of the dismissal of his PCRA
petition, he did not mention it in his argument, and therefore waived this
claim. See Toussaint, No. Civ. A. 1774 EDA 2001. In accordance with
Ramos, we find that Petitioner waived these claims, which Petitioner
raised, but did not argue, and that this procedural default precludes our
review of those claims. See Ramos, 2003 U.S. Dist. at *16-17.
3. Cause, Prejudice and Fundamental Miscarriage of Justice
While Petitioner procedurally defaulted on three of his claims, federal
habeas review of such procedurally-defaulted claims is nevertheless
permitted if a petitioner can demonstrate 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. Edwards v. Carpenter, 529 U.S. 446,
451 (2000). To show cause, first, Petitioner must demonstrate that "some
objective factor external to the defense impeded counsel's efforts to
comply with the State's procedural rule." Coleman, 510 U.S. at 753;
Murray v. Carrier, 477 U.S. 478, 488 (1987); Werts v. Vaughn, 228 F.3d 178,
192-93 (3d Cir. 2000). Second, Petitioner must show that prejudice
resulted by demonstrating that the errors at trial "`worked to his actual
and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.'" Werts, 228 F.3d at 193 (quoting Murray, 477
U.S. at 494). Otherwise, to establish the fundamental miscarriage of
justice exception to the procedural default rule, the petitioner must
demonstrate "actual innocence." Schlup v. Delo, 513 U.S. 298, 324
(1995); Calderon v. Thompson, 523 U.S. 538, 559 (1998) (stating that a
claim of actual innocence must be based on "reliable evidence not
presented at trial" to show that "it is more likely than not that no
reasonable juror would have convicted him in light of new evidence").
Petitioner has not presented any evidence demonstrating cause for his
procedural default. Specifically, Petitioner failed to put forth evidence
that provides an explanation for either his delay in raising these claims
beyond the PCRA's one-year statute of limitations or his decision not to
argue them in his PCRA appeal. Without first showing cause, this Court
cannot and need not address the prejudice requirement. Engle v. Isaac,
456 U.S. 107, 134 n.43 (1982).
Further, the Petition contains conclusory allegations against
Respondent and trial witnesses, accompanied only by excerpts of his trial
transcripts. It appears that Petitioner is trying now, on federal habeas
review, to re-litigate his case with the same facts and evidence that
were before the jury at his trial. Petitioner, however, has not presented
any evidence not
already presented at trial to support his claims of innocence for this
Court to conclude that a fundamental miscarriage of justice has
resulted. Thus, under either the "cause and prejudice" or the
"miscarriage of justice" standard, Petitioner's procedurally defaulted
claims are not subject to federal habeas review.
Petitioner's only exhausted claim is that the trial court improperly
denied his motion to sever the two cases against him for trial.
Petitioner appears to claim that the consolidation of the two cases was
so prejudicial that it rendered his trial unfair in violation of his
federal due process rights. Petitioner objects to the Report and
Recommendation's finding that his claim of improper consolidation was
Although Petitioner's consolidation claim was fully litigated in state
court and passes the procedural requirements for exhaustion, it does not
pass this Court's jurisdictional requirement that his claim involve a
matter of federal constitutional law. See Estelle v. McGuire, 502 U.S. 62,
67 (1991); Johnson v. Rosemver, 117 F.3d 104, 109-10 (3d Cir. 1997).
"Even if the state courts [make] a mistake of state law which prejudices
[a petitioner], . . . to obtain habeas corpus relief [a petitioner] must
demonstrate that the mistake deprived him of a right which he enjoyed
under the Constitution, laws, or treaties
of the United States." Johnson, 117 F.3d at 110.
Petitioner alleges that the consolidation was unfair and prejudicial to
his trial, which tenuously implicates the Due Process Clause of the
Federal Constitution. Despite this tenuous implication, however,
consolidation of offenses, and decisions on motions to sever charges, are
state law questions. Jones v. Brierlv, 276 F. Supp. 567, 571 (E.D. Pa.
1967). "Errors of state law cannot be repackaged as federal errors simply
by citing the Due Process Clause." Johnson, 117 F.3d at 110.
In Ashe v. United States, the most recent United States Supreme Court
case to consider the propriety of consolidating separate indictments for
trial, the Court held that a state court's consolidation of two
indictments for trial at one time was not a violation of any federal
constitutional right. 270 U.S. 424, 425-26 (1926). The Supreme Court held
that consolidation of indictments for trial is part of the state's
administration of criminal law not to be interrupted by federal habeas
attack. Id. at 426. The only attack that could be made upon a state
court's consolidation decision was whether the state had the
"constitutional power" to present two indictments in one trial. Id. at
425. The Supreme Court answered that question affirmatively while
repeating that "there was not a shadow of a ground for interference with
this sentence by habeas corpus." Id. at 426. In accord with the Ashe
ruling, our Court also
determined long ago that "the action of the trial court in consolidating
indictments is not open to attack on a habeas corpus proceeding." Sliva
v. Pennsylvania, 196 F. Supp. 51, 53 (E.D. Pa. 1961).*fn9
A review of Third Circuit precedent on this issue of state court
consolidation supports our finding that this issue is not cognizable for
federal habeas review. See Green v. Rundle, 452 F.2d 232, 236 (3d Cir.
1971) (holding that failure of trial counsel objecting to consolidation
constituted waiver); Dixon v. Cavell, 284 F. Supp. 535, 538 (E.D. Pa.
1968) (finding no prejudice in joinder of multiple defendants); Jones v.
Brierly, 276 F. Supp. 567, 571 (E.D. Pa. 1967) (stating consolidation was
an issue of "state law and procedure rather than . . . federal
constitutional issues and justiciable only on direct appeal rather than
on federal habeas corpus proceedings"). But see, Tillman v. Koehane, No.
Civ. A. 87-500, 1988 U.S. Dist LEXIS 17314, at *5 (D.N.J. Aug. 5, 1988)
(reviewing consolidation claim on the merits against fundamentally unfair
due process standard); Lew v. Parker, 478 F.2d 772, 811-13 (3d Cir. 1973)
(finding no prejudice in consolidation of charges in Court Martial
proceeding), rev'd on other grounds, Parker v. Levy, 417 U.S. 733 (1974).
The absence of any federal habeas ruling on
consolidation in the Third Circuit in thirty years of habeas review lends
reasonable support for our determination that, as held in Sliva,
consolidation at the state court trial level is not a proper issue for
federal habeas attack.
When reviewing the trial court's determination of its own state law of
joinder,*fn10 this Court is bound by the state court's interpretations
of state law. Estelle, 502 U.S. at 67-68. A federal court sitting in
habeas review will not "reexamine state court determinations on state law
questions." Id. It is not the province of the federal habeas court to
determine if the state court improperly construed the state law with
respect to the consolidation; it is only to determine if the state court
had the constitutional power to consolidate. See Ashe, 270 U.S. at 425.
Accordingly, we find that the Pennsylvania state court had the power to
consolidate Petitioner's indictments, thus, precluding federal habeas
review.*fn11 Id. at 426.
As three of Petitioner's four claims are procedurally defaulted, and
the fourth is a state law issue not subject to attack on federal habeas
review, this Court need not reach the merits of Petitioner's claims for
collateral relief. Accordingly, Petitioner's Petition for Writ of Habeas
Corpus is hereby DENIED.