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 ...