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RAMOS v. KYLER

United States District Court, E.D. Pennsylvania


April 12, 2004.

EDGAR RAMOS, Petitioner
v.
KENNETH D. KYLER, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge

MEMORANDUM and ORDER

Edgar Ramos, who is presently incarcerated in the State Correctional Institution at Huntingdon, Pennsylvania, brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred to a magistrate judge, who issued a report and recommendation. Both petitioner and respondents filed objections to the magistrate judge's report and recommendation. Where a habeas petition has been referred to magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), this court's review of "those portions of the report or specified proposed findings or recommendations to which objection is made" is de novo, 28 U.S.C. § 636(b). For the reasons that follow, I will overrule both the petitioner's and respondents' objections, adopt the magistrate judge's report and recommendation and dismiss Ramos' petition.

PROCEDURAL BACKGROUND

  On May 30, 1997, after a non-jury trial, Ramos was convicted of first-degree murder, two counts of aggravated assault and possession of an instrument of crime by Judge John J. Poserina of the Philadelphia Court of Common Pleas. Ramos was then sentenced to a mandatory term of life imprisonment on the murder conviction, with concurrent terms on the remaining convictions. Ramos filed an appeal to the Superior Court with the assistance of court-appointed counsel, which affirmed on January 25, 1999 because the court found his claims to lack merit. Commonwealth v. Ramos, 736 A.2d 684 (Pa. Super. 1999). The Pennsylvania Supreme Court denied Ramos' request for allowance of appeal on April 20, 1999. Commonwealth v. Ramos, 738 A.2d 456 (Pa. 1999).

  Less than a year later, on April 12, 2000, Ramos filed his first federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This petition was dismissed on February 26, 2001, for failure to exhaust state remedies. Shortly after Ramos filed his first federal habeas petition, but before it was dismissed, Ramos filed a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq., on April 24, 2000. The court appointed Ramos counsel, who filed a "no merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213 ( Pa. Super. 1998). After considering this letter, the PCRA court denied relief on February 2, 2001. Ramos appealed, raising thirteen issues for review, but the Superior Court affirmed the dismissal on September 18, 2002. Commonwealth v. Ramos, 613 A.2d 907 (Pa. 2002). The Supreme Court again denied Ramos' request for allowance of appeal on December 18, 2002. Petitioner then filed the current petition,*fn1 setting forth sixteen claims.

  DISCUSSION

 I. Timeliness Respondents object to the magistrate judge's finding that petitioner's habeas petition is timely because they argue that petitioner has not provided any evidence to support the magistrate judge's finding. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244 (d)(1) (1996). In the instant case, the limitation period began to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."*fn2 Id. at § 2244(d)(1)(A). The statute contains a tolling exception, however, which states that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." Id. at § 2244(d)(2). Hence, to determine whether Ramos' habeas petition is timely filed, it is necessary to calculate how many days passed between (1) the date on which his judgment became final and the date on which he filed his PCRA petition, and (2) the date on which denial of relief under the PCRA became final and the date on which he filed the instant habeas petition.

  The Pennsylvania Supreme Court denied Ramos' request for allowance of an appeal in his direct appeal on April 20, 1999. However, his judgment did not become "final" until July 19, 1999, ninety days later, because "a state court criminal judgment is `final' (for purposes of collateral attack) at the conclusion of review in the United States Supreme Court or when the time for seeking certiorari review expires." Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (emphasis added). Ramos filed his PCRA petition on April 24, 2000, after 280 days of petitioner's one year grace period had elapsed.*fn3 Hence, Ramos only had 85 days from the date on which denial of relief under the PCRA became final to file this petition. The Pennsylvania Supreme Court denied Ramos' request for allowance of an appeal of the PCRA court's decision on December 18, 2002, which is the date on which the decision became final because "the ninety days during which a petitioner could have filed a petition for certiorari in the United States Supreme Court [does] not toll the limitations period set forth in section 2244(d)(2)." Stokes v. District Attorney of County of Philadelphia, 247 F.3d 539, 543 (3d Cir. 2001). Hence, in order to satisfy the one year requirement under the AEDPA, Ramos must have filed his petition with this court by March 13, 2003.

  As the magistrate judge recognized, "[p]etitioner signed the current habeas petitioner on March 3, 2003, but it was not ultimately filed until March 31, 2003." Rep. & Rec. 8. Although the date a submission is ultimately filed with the court clerk is generally the date of filing, a prisoner's pro se submissions are considered "filed" at the time of delivery to prison authorities for filing with the court. Houston v. Lack, 487 U.S. 266, 275-76 (1988). Respondents argue that there is no evidence to support any finding concerning the date on which petitioner delivered his petition to prison authorities for filing with the court. Petitioner has not produced, for example, a prison mail log,*fn4 that will substantiate his claim that this petition was filed prior to March 13, 2003 and was therefore timely. The magistrate judge, however, noted that "the Affidavit Accompanying [petitioner's] Motion to Proceed in Forma Pauperis was certified by an authorized prison official on March 12, 200[3], suggesting that it was in the hands of prison authorities at that point." Rep. & Rec. 9. The magistrate judge then concluded that Ramos' petition was timely filed. The magistrate judge does not mention two other documents included in Ramos' filing of the habeas petition that appear to contradict this conclusion, though. First, Ramos did not complete his request that five dollars be deducted from his account and a check be made out to the clerk's office for filing of this habeas petition until March 25, 2003. Similarly, the cover letter Ramos attached to his habeas petition, which delineated the documents he was submitting, was dated March 25, 2003. It is unclear how Ramos could have "delivered" his habeas petition for filing with the court to prison authorities without either the requisite check (or request to prison authorities for a check) or the cover letter for the collection of papers to be filed.

  Based on this evidence, it seems extremely unlikely that Ramos' petition was, in fact, timely filed. In order to definitively resolve this issue, though, the case would need to be remanded to the magistrate judge so that he could evaluate the evidence more closely, as the respondents urge. Resp. Obj. to Rep. & Rec. 6. However, since the petition will be dismissed on the merits, a remand for a hearing to determine the true filing date is unnecessary.

 II. Petitioner's Objections to the Report and Recommendation Petitioner makes vague, almost incomprehensible objections to the magistrate judge's report and recommendation. First, petitioner, with the assistance of an interpreter, states that "he witnessed [twelve] jurors and two alternate jurors being sworn in to decide his innocence or guilt." Pet. Obj. to Rep. & Rec. 1. This statement appears to be a more general articulation of claim eleven in petitioner's brief, focusing on the alleged double jeopardy violation rather than the conduct of either the prosecution or trial counsel that could have contributed to such violation. To the extent that this statement is an objection to the magistrate judge's finding on petitioner's double jeopardy claim, it must fail. The record clearly shows that a complete jury was never impaneled and sworn, contrary to petitioner's contention, which means that petitioner's trial had not yet begun when the four jurors who had been selected were dismissed. This, in turn, means that jeopardy did not attach at that time and petitioner's claim of double jeopardy has no merit. Since the state court's decision to that effect was not "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)(1), this "objection" to the magistrate judge's report and recommendation fails.

  Petitioner next states that he "simply mimicked what his trial counsel told him to say, to go before a judge [at bench] trial who at worst would find him guilty of [third] degree murder." Pet. Obj. to Rep. & Rec. 2 (misspellings corrected for the sake of clarity). Again, this appears to be a vague reiteration of petitioner's claims that the trial court erred by allowing petitioner to proceed to bench trial without a knowing, intelligent and voluntary waiver of his right to a jury. Pet. Grounds 1 & 4.*fn5 The Pennsylvania Superior Court addressed this issue during Ramos' direct appeal and its findings and applications of the law are not unreasonable. First, with respect to Ramos' claim that he was not informed a jury would be comprised of his peers, the court noted that the transcript of the waiver colloquy contained an explanation that Ramos could "help select those members of the community from a jury panel that would listen to [his] case and decide whether [he was] guilty or not." May 29, 1997 colloquy at 4-5. The court then considered Ramos' ultimate statement that he understood what the judge meant during the colloquy and his subsequent waiver of his right to jury trial, and concluded that Ramos was sufficiently informed that the jury would be comprised of his peers. Since the state court's decision was not "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)(1), this "objection" to the magistrate judge's report and recommendation is meritless.

  Next, although Ramos' claim that he was not informed orally that the jury must render a unanimous verdict in order to convict is accurate, this fact does not render his waiver invalid. The state court noted that a defendant need not be informed orally that a jury verdict for conviction must be unanimous, so long as his written waiver contains that information. Commonwealth v. Smith, 450 A.2d 973, 974 ( Pa. 1982); see also United States v. Anderson, 704 F.2d 117, 118-19 (3d Cir. 1983) (holding that there is no federal right to be orally informed about the consequences of a decision to waive a jury trial). The state court's finding on this issue was not "contrary to, [nor did it] involve[] an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), so Ramos is not entitled to relief. Although Ramos now claims that he did not understand the written waiver, this argument was never addressed by the state courts, and is therefore not properly before this court. Since the waiver form signed by Ramos clearly states that a guilty verdict must be unanimous, Ramos was clearly informed of this fact and his claim that his waiver of his right to jury trial was invalid is meritless.

  Finally, petitioner ambiguously alleges that his counsel (presumably, trial counsel) was ineffective because he was acting under a conflict of interest. Pet. Obj. to Rep. & Rec. 2. However, this is an issue that petitioner raises for the first time in his objections to the magistrate judge's report and recommendation (and one for which there is no factual or legal support presented). It appears that the issue of how to properly treat an issue raised anew in a habeas petitioner's objections to a magistrate judge's report is one that has not yet reached our court of appeals. The majority of district courts in our circuit, as well as other circuit courts, that have addressed this issue have concluded that such issues are not properly before the court, and thus are not to be addressed. See, e.g., McClure v. Wilson, 2003 WL 23194654, at *2 (E.D. Pa. 2003); Cohen v. Horn, 1998 WL 834101, at *6 (E.D. Pa. 1998); Hammock v. Vaughan, 1998 WL 163194, at *1 (E.D. Pa. 1998); Martinez v. United States of America, 1995 WL 572913, at n.9 (E.D. Pa. 1995); see also Bolar v. Blodgett, 1994 WL 374194 (9th Cir. 1994) (holding that district court was not required to consider a new claim raised first in petitioner's objections while it considered the issues properly raised earlier in the habeas proceedings on the merits); United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992) ("[petitioner] first argued these issues in his objections to the magistrate judge's findings, conclusions, and recommendations. These issues were not properly before the district court, therefore this court will not address them."); but see Maloy v. Zimmerman, 1987 WL 8823, at 3 (acknowledging that petitioner raised issue anew in his objections, however addressing it and deciding it was without merit).

  As a sister circuit articulated, "[t]he purpose of the Magistrate's Act would be frustrated if we were to require a district court to consider a claim presented for the first time after the party has fully litigated his claims before the magistrate judge and found that they were unsuccessful." Bolar, 1994 WL 374194, at *1. Given the present lack of binding precedential guidance, I will join the majority of other courts that have addressed this issue and conclude that prudence dictates that I consider the newly raised issue as not properly before the court. Further, since Ramos did not raise this issue in state court, this claim is unexhausted and now barred. As a result, petitioner's last vaguely asserted claim in his objections to the magistrate judge's report and recommendation, that counsel was ineffective because he was acting under a conflict of interest, must fail.

  CONCLUSION

  For all of the above stated reasons, the objections of both respondents and petitioner are overruled, the magistrate judge's report and recommendation is adopted, and Ramos' habeas petition is dismissed. ORDER

  And now on this — day of April, 2004, upon consideration of defendant Edgar Ramos' petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. #1), review of the Report and Recommendation of the United States Magistrate Judge (Doc. #15), and consideration of petitioner's objections to the Report and Recommendation (Doc. #16) and respondents' objections to the Report and Recommendation (Doc. #16), it is hereby ORDERED that:

1. Petitioner's objections are OVERRULED;
2. Respondents' objections are OVERRULED;
  3. The Report and Recommendation of the Magistrate Judge is APPROVED and ADOPTED;

  4. The petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is DISMISSED;

  5. The petitioner having failed to make a substantial showing of the denial of a constitutional right, there is no ground to issue a certificate of appealability, see 28 U.S.C. § 2253(c).


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