United States District Court, E.D. Pennsylvania
April 12, 2004.
BRIAN KIRK BYRNES [DZ-8707]
NEAL MECHLING, et al
The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before this Court is a pro se Petition for Writ of
Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a state
prisoner. Petitioner is currently incarcerated at the State Correctional
Institution ["SCI"] Pittsburgh, Pennsylvania, where he is serving a
twenty to forty year sentence for attempted homicide and related charges.
For the reasons which follow it is recommended that the Petition for Writ
of Habeas Corpus be denied and dismissed without an evidentiary hearing.
On May 19, 1999, following a jury trial before the Honorable Michael A.
Georgelis of the Court of Common Pleas of Lancaster County, Petitioner
was convicted of attempted homicide, aggravated assault and criminal
conspiracy. See N.T. 5/19/99 at pp. 73-81.*fn2 The facts underlying Petitioner's conviction were described by the
Superior Court as follows:
"The facts, viewed in the light most favorable
to the Commonwealth as verdict winner, show that
at approximately 1:00 a.m. on May 10, 1998, the
victim, Thomas Coleman, a graduating senior at
Franklin and Marshall College in Lancaster, was
walking back to his fraternity house alone after
an evening of celebratory drinking with friends
and classmates at a local tavern. Near the
intersection of Prince and Walnut Streets,
appellant [Petitioner], who was then sixteen years
of age, and a co-hort, came up behind the victim
and viciously assaulted him. Appellant and his
conspirator wielded knives and together inflicted
21 stab and/or slash wounds to the head, face,
neck, chest and back of the victim. In attempting
to resist the attack, the victim pulled
Appellant's jacket off, the pocket of which
contained an identification card. The attack ended
and the aggressors fled when a passer-by stopped
his vehicle and gave aid to the victim by flashing
his lights, blowing his horn, and shouting `break
it up.' The passer-by then called the police on a
cellular phone. Before police arrived, a good
Samaritan drove the victim to the emergency room
of nearby Saint Joseph's Hospital. Due to the life
threatening nature of his injuries, the victim was
transported to the trauma center at Lancaster
General Hospital where several emergency surgeries
were performed and the victim's life was saved.
When the police arrived at the corner of Prince
and Walnut Streets, they found Appellant's jacket
with identification card, a pile of bloody
clothing and two knives. Appellant was later
interviewed by detectives in the presence of his
mother. Appellant waived his right to counsel and
gave a statement in which he admitted stabbing the
victim repeatedly during a fight that allegedly
began between the victim and the Appellant's
co-hort. Appellant identified one of the knives
recovered at the scene, as well as the jacket and
identification card as his own. Appellant was
arrested and charged as an adult with criminal
attempt to commit criminal homicide, aggravated
assault, robbery and criminal conspiracy.
At Appellant's preliminary hearing, the robbery
charge was dismissed for lack of a prima
facie showing. Thereafter, Appellant filed a
writ of habeas corpus alleging that no showing was
made at the preliminary hearing sufficient to bind
Appellant over for trial on the remaining charges.
The writ was denied. Prior to trial, the
Commonwealth filed a motion in limine,
requesting that Appellant not be permitted to
introduce expert toxicological evidence of
Appellant's voluntary intoxication at the time the
offenses were committed. The motion was granted."
See "Answer to The Petition For Writ Of Habeas Corpus"
[Docket Entry No. 10]*fn3
: Exhibit "A" (April 28, 2000 Superior Court
Opinion) at pp. 1-3. On July 9, 1999, Judge Georgelis sentenced Petitioner to twenty to
forty years for attempted homicide. The aggravated assault merged with
the attempted homicide for sentencing purposes, and no additional
sentence was imposed for criminal conspiracy. See N.T. 7/9/99 at
Petitioner did not file post-trial motions. See Commonwealth's
Answer: Exhibit "A" (April 28, 2000 Superior Court Opinion) at p. 3.
On July 29, 1999, Petitioner filed an appeal from the judgment of
sentence in the Pennsylvania Superior Court. On appeal, he raised the
"1. The sentence imposed was excessive.
2. The court erred in denying appellant's writ for
habeas corpus relief because no prima
facie case for attempted homicide was made
out at the preliminary hearing.
3. The evidence at trial was insufficient to
sustain the conviction for attempted homicide.
4. The court erred in granting the Commonwealth's
in limine motion and in prohibiting
appellant from presenting evidence of his
voluntary intoxication at trial."
Id. at p. 3.
In an April 28, 2000 Opinion, the Superior Court rejected all four
claims on the merits. Id. at p. 4.
Petitioner sought discretionary review in the Supreme Court of
Pennsylvania. Allocatur was denied on August 24, 2000.
See Commonwealth's Answer: Exhibit "B" (August 24, 2000 Order).
On March 21, 2001, Petitioner filed a pro se petition for
collateral relief under the Pennsylvania Post Conviction Relief Act
["PCRA"], 42 Pa. C.S.A. § 9541 et seq. Counsel was
appointed. On May 30, 2001, PCRA Counsel filed a Finley letter,
asserting that there were no issues of arguable merit. See State
Court Record: May 30, 2001 letter addressed to Judge Georgelis from Barry G. Goldman, Esq. [attachment to document
identified in the right hand corner as page "27"].
On June 19, 2001, the PCRA Court denied Mr. Byrnes' request for PCRA
relief, without an evidentiary hearing. See State Court Record:
June 19, 2001 PCRA Court Opinion [identified in the right hand corner as
Petitioner appealed the denial of PCRA relief. On appeal, he raised the
"(1) The trial erred in granting the Court's
motion in limine and refusing to allow
the defense expert to testify as to the effect of
voluntary intoxication on the specific intent of
(2) The confession made by appellant should have
been suppressed since defendant was held in
custody for more than 6 hours before arraignment;
(3) Trial counsel was ineffective as a result of
his failure to:
(a) establish the defendant's arrest was
(b) establish that appellant should have been
tried as a juvenile."
See Commonwealth's Answer: Exhibit "C" (October 17, 2002
Superior Court Opinion) at p. 2.
The Superior Court declined to reach the merits of the first two
issues, concluding that the first had been fully litigated on direct
appeal, and the second was waived because it could have been raised on
direct appeal and was not. With regard to the ineffective assistance of
counsel claims, the Superior Court rejected both as meritless.
Id. at pp. 2-5.
On October 25, 2002, Petitioner filed an application for reargument
and/or reconsideration in the Superior Court. By Order dated December 18,
2002, the Superior Court denied the application. See
Commonwealth's Answer: Exhibit "D" (December 18, 2002 Superior Court
Petitioner sought discretionary review in the Pennsylvania Supreme
Court. Allocatur was denied on April 1, 2003. See
Commonwealth's Answer: Exhibit "E" (April 1, 2003 Superior Court Order). On May 5, 2003, Petitioner signed and dated the instant habeas
petition. It was filed in this Court on May 9, 2003. See Habeas
Petition [Docket Entry No. 1].*fn4
As grounds for habeas relief, Petitioner presents
the following issues:
1. "Denial of effective assistance of counsel.
Petitioner avers that trial counsel was
ineffective for failing to litigate a pretrial
motion (suppression) motion. Many factors support
this claim: Petitioner was arrested inside a
family members home, without a warrant, in
violation of the Fourth Amendment, to search the
home. The arresting officers received invalid
consent to search the home by an uneducated
juvenile. The arresting officers never had
probable cause to believe Petitioner was inside
the home. After arrest, Petitioner gave a coerced
confession to the crime. Petitioner at the time of
his coerced confession was a juvenile, afraid, and
didn't understand the nature of the charges.
Because the Petitioner was a juvenile the
arresting officers brought his mother as an
`interested adult.' What the arresting officers
failed to do was take steps to insure that the
`interested adult' understood the Petitioner's
rights. The coerced confession also was the result
of an unnecessary delay in Petitioner's
arraignment for eleven (11) hours."
2. "Petitioner avers that trial counsel was
ineffective for failing to file a motion to the
juvenile division for a `decertification hearing.'
Petitioner was a juvenile at the time of his
arrest and had the right to be heard by a juvenile
judge to determine whether he was amendable to
See Habeas Petition at p. 9, and Memorandum In Support of
Habeas Petition [Docket Entry No. 13] at pp. 5-11.
On August 4, 2003, Petitioner sought leave to amend his habeas petition
to add a third habeas claim. I granted this request by Order dated August
5, 2003. See Docket Entry Nos. 5 and 7. In his third habeas
claim, Mr. Byrnes alleges:
"Plaintiff alleges that trial counsel was
ineffective in violation of the Sixth Amendment
when he failed to challenge a peremptory challenge
made by the prosecutor when the prosecutor used a
challenge to eliminate the only hispanic
proseptive [sic] juror (#19 Mr. DeJesus) based on
race in violation of BATSON and Plaintiff was also denied Equal Protection
interpreted by the Supreme Court in Batson v.
Kentucky, 106 S.Ct. 1712.
The Plaintiff started trial on May 15, 1999.
Plaintiff went to trial with a co-defendant who
is hispanic. The victim in the crime was a white
male. Because Plaintiff had his trial with a
hispanic co-defendant constitutes [sic] a
See Motion to Amend Habeas Petition [Docket Entry No. 5]
at pp. 1-2.
On September 8, 2003, the Respondents answered the habeas petition, as
amended. They argue that Mr. Byrnes' habeas petition should be denied and
dismissed without prejudice because "Petitioner unequivocally fails to
meet and satisfy the exhaustion requirement." See Commonwealth's
Answer at ¶ 6.
Petitioner has filed a traverse to the Commonwealth's answer, conceding
that his Batson claim is unexhausted, and arguing that his only
remaining remedy is this habeas petition. Petitioner has also filed two
motions: a motion for summary judgment and a motion for an evidentiary
hearing. See Docket Entry Nos. 11, 12, and 14.
The Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA" or
the "Act"], signed into law on April 24, 1996, significantly amended the
laws governing habeas corpus petitions.
One of the amended provisions, 28 U.S.C. § 2244(d), imposes a
one-year statute of limitations on state prisoners who seek federal
habeas relief. A habeas petition must be filed within one year from the
date on which the petitioner's judgment of conviction becomes final.
See 28 U.S.C. § 2244(d)(1).*fn5 In the instant case, Mr. Byrnes' state conviction became final on
November 24, 2000, when the time for seeking certiorari review
in the United States Supreme Court (90 days) expired. See Kapral v.
United States, 166 F.3d 565, 575 (3d Cir. 1999)("Therefore, 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."). Absent any tolling period,
he would have been required to file a habeas petition on or before
November 25, 2001.
However, the AEDPA amendments include a tolling provision for "the 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." See 28 U.S.C. § 2244(d)(2).
Mr. Byrnes filed a state collateral action on March 21, 2001, which was
pending through April 1, 2003, when the Pennsylvania Supreme Court
declined discretionary review.
Thus, Petitioner's habeas statute of limitations began on November 25,
2000. As of the date on which he filed his PCRA petition (March 21,
2001), 116 days of the one year statutory period had expired.
Petitioner's statute of limitations was tolled from March 21, 2001
through April 1, 2003. The instant habeas petition, filed on May 5, 2003,
is timely under § 2244(d)(1). II. Exhaustion/Procedural Default.
The exhaustion rule, codified in 28 U.S.C. § 2254*fn6, requires a
federal court to postpone habeas corpus jurisdiction, absent exceptional
circumstances, until "the applicant has exhausted the remedies available
in the courts of the State." The exhaustion requirement is rooted in
considerations of comity; the statute is designed to protect the role of
the state court in enforcement of federal law and to prevent disruption
of state judicial proceedings. Rose v. Lundy, 102 S.Ct. 1198,
1203 (1982); Castille v. Peoples, 489 U.S. 346, 349 (1989).
In order to demonstrate compliance with the exhaustion requirement, a
habeas petitioner must show that each claim which forms the basis of his
federal habeas petition has been "fairly presented" to the State courts.
Castille v. Peoples, 489 U.S. at p. 351 (1989); Picard v.
Connor, 404 U.S. 270, 275 (1971). Absent exceptional circumstances, the
petitioner must first present all of his constitutional claims in the
state system, through the highest state tribunal, before seeking relief
in federal court. See Picard v. Connor, 404 U.S. at p. 275
(1971); Swanger v. Zimmerman, 750 F.2d 291 (3d Cir. 1984).
The burden is on the habeas petitioner to establish that he has fairly
presented his federal constitutional claims, both facts and legal theory,
to all levels of the state judicial system. See Gattis v.
Snyder, 278 F.3d 222, 231 (3d Cir. 2002)(quoting Evans v. Court
of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992), cert.
petition dismissed, 506 U.S. 1089 (1993), "[b]oth the legal theory
and the facts underpinning the federal claim must have been presented to
the state courts . . . and the same method of legal analysis must be
available in the state court as will be employed in the federal court.").
An unexhausted habeas claim becomes procedurally defaulted when the
petitioner has no additional state remedies available to pursue the
issue. See Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir.
2001)(when a claim has not been fairly presented to the state courts, but
further state-court review is clearly foreclosed under state law, the
claim is procedurally defaulted and may be entertained in a federal
habeas petition only if there is a basis for excusing the procedural
default), cert. denied, 122 S.Ct. 1364 (2002).
Procedural default also occurs when an issue is properly asserted in
the state system, but is not addressed on the merits because of an
independent and adequate state procedural rule. See Sistrunk v.
Vaughn, 96 F.3d 666, 673 (1996); and McCandless v. Vaughn,
172 F.3d 255, 260 (3d Cir. 1999)("If the final state court presented with
a federal claim refuses to decide its merits based on an established
state rule of law independent of the federal claim and adequate to
support the refusal, federal habeas review is foreclosed unless there is cause
and prejudice or a showing of innocence.").
Procedural default may be excused if the habeas petitioner can show
"cause" for the default and "prejudice attributable thereto," or
demonstrate that the failure to consider his habeas claim will result in
a "fundamental miscarriage of justice." Wenger, 266 F.3d at p.
224 (3d Cir. 2001). See also McCandless, 172 F.3d at p. 260 (3d
B. The Batson Habeas Claim Is Procedurally Defaulted.
It is undisputed that Petitioner's Batson claim has never been
presented in th state court system. See Petitioner's Traverse
[Docket Entry No. 11] at p. 1. Petitioner argues that this failure to
exhaust, coupled with a lack of an additional state remedies, gives this
Court jurisdiction over the Batson claim. Id. The
Commonwealth argues that Petitioner's Batson claim is
unexhausted, and that the instant habeas petition must be dismissed as a
mixed petition. See Commonwealth's Answer at ¶¶ 6-9.
The failure to exhaust habeas claims will be excused "if it is clear
that [the habeas petitioner's] claims are now procedurally barred under
[state] law." Whitney v. Horn, 280 F.3d 240, 250 (3d Cir
2002)(quoting Gray v. Netherland, 518 U.S. 152, 161 (1996)).
"`Futility' exists where: a state's highest court has ruled unfavorably
on a claim involving facts and issues materially identical to those
undergirding a federal habeas petition and there is no plausible reason
to believe that a replay will persuade the court to reverse its field,
where the state provides no means of seeking the relief sought, or where
the state courts have failed to alleviate obstacles to state review
presented by circumstances such as the petitioner's pro se status, poor
handwriting and illiteracy." Id. (quoting Lines v.
Larkins, 208 F.3d 153, 162-63 (3d Cir. 2000)). Having exhausted his direct appeal options, the only possible avenue
for further state review of Petitioner's unexhausted habeas claim would
be through collateral review under the Pennsylvania Post Conviction
Relief Act, 42 Pa.C.S. § 9501 et seq. ["PCRA"]. However,
review of claims in the PCRA forum is subject to a one year statute of
limitations, running from the date on which a petitioner's conviction
"A conviction becomes final for PCRA purposes `at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration
of the time for seeking the review." Whitney, 280 F.3d at p. 51
(3d Cir. 2002)(quoting Lines v. Larkins, 208 F.3d at p. 164 (3d
As noted earlier, Petitioner's conviction became final on November 24,
2000. Any additional PCRA petition which Petitioner might now attempt to
file would be untimely. The Pennsylvania Supreme Court has made is clear
that PCRA statute of limitations "is a jurisdictional rule that precludes
consideration on the merits of any untimely PCRA petition, and it is
strictly enforced in all cases, including death penalty cases."
Id. (citing Commonwealth v. Peterkins, 554 Pa. 547,
722 A.2d 638 (1998) and Commonwealth v. Banks, 556 Pa. 1,
726 A.2d 374 (1999)).
There are three exceptions to the one-year PCRA statute of limitations,
which excuse the statute of limitations period where "(1) the petitioner
failed to raise the claim previously due to interference by government
officials with the presentation of the claim in violation of the
constitutions and laws of the United States and Pennsylvania; (2) the
facts upon which the claim is based were unknown to the petitioner and
could not have been discovered through due diligence; or (3) the claim
involves a constitutional right recognized by the Supreme Court of the
United States or of Pennsylvania subsequent to the expiration of the
statute of limitations and held to apply retroactively." Lambert v. Blackwell,
134 F.3d 506, 523-24 (3d Cir. 1997), cert. denied,
532 U.S. 919(2001).
In the instant case, Mr. Byrnes has not argued, and based on the record
before me I see no basis which warrants a finding, that any of the
statutory exceptions to the PCRA time bar apply. Accordingly, I find that
Petitioner is foreclosed from seeking PCRA review of his Batson
claim, and has procedurally defaulted this issue.
This procedural default precludes federal habeas review of the claim,
absent a showing of "cause" and "prejudice", or "miscarriage of justice."
Petitioner has not argued, nor does the record before me suggest, that he
can establish "cause and prejudice" or "fundamental miscarriage of
justice," sufficient to excuse the procedural default. Absent such a
showing, this court may not proceed to the merits of Petitioner's
C. Petitioner's Two Remaining Habeas Claims Are Properly
The fact that Petitioner has included a procedurally defaulted claim in
his habeas petition does not preclude review of his remaining claims, if
they are properly exhausted. See Doctor v. Walters, 96 F.3d 675
681 (3d Cir. 1996)(although, in general, a habeas petition which includes
an unexhausted claim must be dismissed for failure to exhaust all state
remedies, this requirement does not apply when the unexhausted habeas
claim is procedurally barred).
Both of Petitioner's ineffective assistance of counsel claims were
presented in the state court system, and rejected by the Superior Court on PCRA review.
Because these two habeas claims have been properly exhausted, I will
address the merits of each.
A. Habeas Standards of Review.
Mr. Byrne's habeas petition was filed after the effective date of
AEDPA*fn8. The amended habeas standards apply to his habeas claims.
AEDPA precludes habeas relief on "any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
(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)(Supp. 1998).
In interpreting the above language, the Third Circuit has discussed the
appropriate degree of deference which AEDPA requires a federal habeas
court to accord a state court's construction of federal constitutional
issues and interpretation of Supreme Court precedent. See Matteo v.
Superintendent, SCI Albion, 171 F.3d 877
(3d Cir.), cert.
denied, 120 S.Ct. 73 (1999). The Third Circuit has held that under
28 U.S.C. § 2254(d)(1), a two step inquiry is warranted. The majority
(1) The proper initial inquiry for the habeas
court is whether the state court decision was
"contrary to" Supreme Court precedent that governs
the petitioner's claim. Relief is appropriate only
when the petitioner shows that "Supreme Court
precedent requires an outcome contrary to that
reached by the relevant state court." Id. at 891 (3d Cir. 1999).
(2) In the absence of such a showing, the habeas
court must then ask whether the state court
decision represents an "unreasonable application
of" Supreme Court precedent. This inquiry is an
objective one, namely, "whether the state court
decision, evaluated objectively and on the merits,
resulted in an outcome that cannot reasonably be
Matteo, 171 F.3d at p. 891 (3d Cir. 1999).
The United States Supreme Court has set forth the scope of habeas
review after AEDPA. See Williams v. Taylor, 120 S.Ct. 1495,
529 U.S. 362 (2000). According to the Williams majority:
"We [the Supreme Court Justices] all agree that
state-court judgments must be upheld unless, after
the closest examination of the state-court
judgment, a federal court is firmly convinced that
a federal constitutional right has been violated.
[. . .] In sum, the [AEDPA] statute directs
federal courts to attend every state-court
judgment with utmost care, but it does not require
them to defer to the opinion of every reasonable
state-court judge on the content of federal law.
If, after carefully weighing all the reasons for
accepting a state court's judgment, a federal
court is convinced that a prisoner's custody
or, as in this case, his sentence of death
violates the Constitution, that
independent judgment should prevail."
Williams, 120 S.Ct. at p. 1511 (2000).
Under AEDPA, a federal reviewing court must presume that factual
findings of state trial and appellate courts are correct. The presumption
of correctness may only be overcome on the basis of clear and convincing
evidence to the contrary. See Stevens v. Delaware Correctional
Center, et al, 295 F.3d 361, 368 (3d Cir. 2002).
B. Ineffective Assistance of Counsel Standard.
In order for a petitioner to establish ineffective assistance of
counsel under the federal Strickland standard, he must show: 
that counsel's performance was "deficient" and  that the deficient
performance prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). To demonstrate that counsel's performance was deficient, the petitioner
must show that counsel's representation fell below an objective standard
of reasonableness based on the facts of the particular case, viewed as of
the time of counsel's conduct. Senk v. Zimmerman, 886 F.2d 611,
615 (3d Cir. 1989)(quoting Strickland, 466 U.S. at 688,
690(1984)), cert. denied, 493 U.S. 1035 (1990).
To establish prejudice, the petitioner must demonstrate a reasonable
probability that, but for unprofessional errors, the result would have
been different. This standard is less strict than the "more likely than
not" standard. Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir.
1992), cert. denied, 507 U.S. 954 (1993). "A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Id. at p. 358 (quoting, Strickland, 466 U.S.
Because the United States Supreme Court has identified a rule which
governs Petitioner's ineffective assistance of counsel claims, the
Strickland standard "shape[s] the contours of an appropriate
analysis of a claim of constitutional error to merit review of a state
court's decision under section 2254(d)(1)'s `contrary to' prong."
Matteo, 171 F.3d at p. 886 (3d Cir. 1999).
On PCRA appeal, the Superior Court of Pennsylvania analyzed both of Mr.
Byrnes' ineffective assistance of counsel claims by applying the
Pennsylvania standard. Under state law, in order to establish ineffective
assistance of counsel, a petitioner is required to prove that: (1) there
is merit to the underlying claim of ineffectiveness; (2) there was a
reasonable basis for counsel's actions, designed to effectuate the
client's interest; and (3) petitioner was prejudiced by the act of
omission of counsel. See Commonwealth's Answer: Exhibit "C"
(October 17, 2002 Superior Court Opinion) at p. 3 (citing to
Commonwealth v. Pursell, 555 Pa. 233, 255, 724 A.2d 293, 304 (1999), cert. denied, 528 U.S. 975 (1999)).
The Third Circuit has determined that the Pennsylvania ineffective
assistance of counsel standard does not contradict the federal
Strickland standard. See Werts v. Vaughn, 228 F.3d 178,
204 (3d Cir. 2000).
C. The Superior Court's Rejection of Petitioner's First
Ineffective Assistance of Counsel Claim Is Neither Contrary To,
Nor An Unreasonable Application Of, Federal Law.
In his first ineffective assistance of counsel claim, Petitioner argues
that trial counsel was ineffective for failing to litigate a pretrial
suppression motion. According to Petitioner, he was arrested inside a
family member's home, without a search warrant or valid consent to
search, and without probable cause. After his arrest, Petitioner asserts
that his statement to police was coerced. See Habeas Petition at
In Stone v. Powell,*fn9 the Supreme Court held that prisoners
who had been afforded a full and fair opportunity in state court to
invoke the exclusionary rule may not raise their Fourth Amendment claims
on federal habeas review. See Kimmelman v. Morrison,
477 U.S. 365, 376 (1986). However, the Stone restriction on habeas review
of Fourth Amendment claims does not extend to Sixth Amendment claims of
ineffective assistance of counsel which are founded primarily on
incompetent representation with regard to a Fourth Amendment issue.
Id. at pp. 383-84 (1986).
Where a habeas petitioner alleges that his "counsel's failure to
litigate a Fourth Amendment claim competently is the principal allegation
of ineffectiveness, the [petitioner] 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, 477 U.S. at p. 375 (1986).
The failure to file a suppression motion does not constitute per
se ineffective assistance of counsel. Counsel's competence is
presumed. The petitioner "must rebut this presumption by proving that his
attorney's representation was unreasonable under prevailing professional
norms and that the challenged action was not sound strategy."
Id. at p. 383-84 (1986).
In the instant case, Mr. Byrnes' trial counsel filed a pre-trial motion
to suppress his statement to the police on the grounds that his arrest
was illegal and that his statement following the illegal arrest was
coerced. See State Court Record: "Omnibus Pre-trial Motion"
[identified in the right hand corner as page "9"].
On May 3, 1999, trial counsel, after discussing the motion to suppress
evidence with Petitioner, withdrew the motion. See N.T. 35/3/99
at p. 2.
On PCRA review, the Superior Court concluded that Petitioner's
ineffective assistance of counsel claim for withdrawing the suppression
motion was meritless. The Court stated:
"[. . .] The victim ripped appellant's
[Petitioner's] jacket containing his
identification from his body as he was fighting
off his attackers, and it was found at the scene
by police. Appellant and his co-conspirator were
taken into custody after being discovered on the
roof of the apartment building which the officers
had been given permission to enter. Since the
police had probable cause to believe that
appellant had stabbed the victim and were in the
apartment with the permission of the tenant when
they seized him, the arrest was lawful. See,
e.g., Commonwealth v. Santiago, 736 A.2d 624
(Pa.Super. 1999), appeal denied,
561 Pa. 674, 749 A.2d 470 (2000). As a result, a motion to
suppress the statement provided by appellant after
consultation with his mother and after having his
Miranda rights explained would have been wholly
meritless. Thus, counsel cannot be found
ineffective for failing to pursue the suppression
motion, and this ineffectiveness claim is rejected
See Commonwealth's Answer: Exhibit "C" (October 17, 2002
Superior Court Opinion) at pp. 3-4.
The Superior Court's determination that counsel's performance was not
deficient when he withdrew a baseless suppression motion is not an
unreasonable application of clearly established federal law. There is
evidence of record to support the Court's finding that there was
probable cause to believe that Petitioner had stabbed the victim.
See e.g. N.T. 5/18/99 at p. 93 (testimony of Detective Andrew
D. Morgan in which he states that Petitioner's school identification was
found in a jacket which the victim had taken off one of the suspects
during the struggle), and N.T. 5/18/99 at pp. 121-125 (testimony of
Detective Joseph Hockley in which he testifies that he collected the
jacket containing Petitioner's school ID at the crime scene). There is
also evidence to support the Court's conclusion that the police had
permission from the tenant to search the apartment where Petitioner was
seized. See State Court Record: "Brief in Support of Pro-Se
Motion For Post Conviction Relief" [identified in the right hand corner
as page "26"], Attachment pages 4 and 5 of a 17 page police
report (in which Detective Morgan describes the circumstances leading to
Petitioner's arrest when he was discovered on the roof of his cousin
Ryan Kurtz' apartment at 33 New Holland Avenue).
With regard to the allegations of coercion, there is evidence to
support the Superior Court's determination that Petitioner's statement
was given to police after he was given his Miranda rights and
after consultation with his mother. See N.T. 5/18/99 at pp.
93-101 (testimony of Detective Morgan in which he testifies about the
circumstances under which Petitioner made a statement to police).
Under Strickland, counsel cannot be deemed deficient for
failing to raise a baseless claim. See e.g. McNeal v. United
States, CA No. 99-3229, 1999 WL 1065216 at *3 (E.D. Pa. November
23, 1999)(counsel's decision not to raise a meritless issue was
objectively reasonable under Strickland).
I find the Superior Court's rejection of Petitioner's ineffective
assistance of counsel claim for failure to pursue the suppression motion
to be objectively reasonable. This court must, therefore, defer to the
state court's decision.
D. The Superior Court's Rejection of Petitioner's Second
Ineffective Assistance of Counsel Claim Is Neither Contrary
To, Nor An Unreasonable Application Of, Federal Law.
In his second habeas claim, Petitioner argues that trial counsel was
ineffective for failing to file a motion for a "decertification
hearing." According to Petitioner, he "was a juvenile at the time of his
arrest and had the right to be heard by a juvenile judge to determine
whether he was amendable to juvenile treatment." See Habeas
Petition at p. 9.
The Superior Court rejected this claim, concluding:
"Nor is there merit to the claim of appellant that
counsel was ineffective for failing to prevent his
transfer from juvenile court and/or failing to
have him transferred to juvenile court. This
precise issue, raised in the context of the PCRA,
was rejected by the Superior Court in
Commonwealth v. Glass, 605 A.2d 432
(Pa.Super. 1992), appeal denied,
531 Pa. 651, 613 A.2d 557 (1992)."
See Commonwealth's Answer: Exhibit "C" (October 17, 2002
Superior Court Opinion) at p. 4.
In Commonwealth v. Glass, the petitioner asserted a claim of
ineffective assistance of counsel for failure to challenge the trial
court's denial of the petitioner's motion to transfer her case to
juvenile court. The basis of the petitioner's claim was that her
"witnesses establish[ed] a realistic opportunity for rehabilitation prior
to the expiration of the juvenile court jurisdiction and [that she] would
receive better treatment, supervision and rehabilitation in the juvenile
system as opposed to the adult system." See Glass, 605 A.2d 432,
429 (Pa.Super. 1992). The Superior Court held that Glass' claim did not implicate the
integrity of the truth-determining process, and that the reliability of
the adjudication of guilt was not compromised. Claims that do not involve
alleged errors which undermine the truth-determining process are not
cognizable under the PCRA. Id.
In his PCRA petition, Mr. Byrnes argued that he was deprived the
opportunity to prove that he belonged in juvenile court, "by
demonstrating a need for, and an amenability to, programs for
rehabilitation, supervision, and care provided by the juvenile court
system." See State Court Record: "Brief In Support Of Pro-Se
Motion For Post Conviction Relief" at p. 13.
The Superior Court's rejection of Petitioner's second ineffective
assistance of counsel claim as not cognizable under PCRA law is based
upon an adequate and independent state rule of law. This finding acts as
a procedural default which forecloses federal habeas review, absent a
showing of cause and prejudice, or actual innocence. Petitioner has not
alleged, nor does the record before me suggest, that he can establish
cause and prejudice, or fundamental miscarriage of justice, sufficient to
excuse the procedural default.*fn10 Petitioner has filed a motion for an evidentiary hearing, and a motion
for summary judgment. Because I find that Petitioner's habeas claims are
procedurally defaulted and/or meritless, I recommend denial of these two
Consistent with the above discussion, it is recommended that
Petitioner's motion for an evidentiary hearing and motion for summary
judgment be DENIED, and that Petitioner's habeas petition, filed under
28 U.S.C. § 2254, be DENIED AND DISMISSED WITHOUT AN EVIDENTIARY
HEARING. It is further recommended that a finding be made that there is
no probable cause to issue a certificate of appealability.