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United States District Court, E.D. Pennsylvania

April 12, 2004.


The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge


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 pp. 29-30.

  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 following claims:

"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 page "27"].

  Petitioner appealed the denial of PCRA relief. On appeal, he raised the following issues:

"(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 appellant;
(2) The confession made by appellant should have been suppressed since defendant was held in custody for more than 6 hours before arraignment; and
(3) Trial counsel was ineffective as a result of his failure to:
(a) establish the defendant's arrest was illegal; and
(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 Order).

  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 juvenile treatment."
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 inter-racial crime."
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.


 I. Timeliness.

  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.

  A. Standards.

  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 Cir. 1999).

  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 becomes final.

  "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 Cir. 2000)).

  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 Batson claim.*fn7


C. Petitioner's Two Remaining Habeas Claims Are Properly Exhausted.
  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.

 III. Merits.

  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 claim —


(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 agreed that:


(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 justified."
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: [1] that counsel's performance was "deficient" and [2] 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. at 694).

  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 p. 9.

  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 as baseless."
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 motions.


  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.

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