The opinion of the court was delivered by: DIANE WELSH, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before the Court is a Petition for Writ of Habeas Corpus
filed by Mel Johnson pursuant to 28 U.S.C. § 2254. Petitioner is
currently incarcerated at the State Correctional Institution in
Frackville, Pennsylvania. For the reasons which follow, the habeas
petition should be denied and dismissed.
I. PROCEDURAL HISTORY*fn1
Following a trial in the Court of Common Pleas of Philadelphia,
petitioner was convicted of aggravated assault and recklessly endangering
another person after he hit the victim, his girlfriend, with his car and
caused her serious injury. See Commonwealth v. Johnson, No.
2490 EDA 2001, Mem. Op. at 1 (Pa. Super. filed Oct. 24, 2002);
Commonwealth v. Johnson, No. 2742 Phila. 1997, Mem. Op. at 8
(Pa. Super. filed Aug. 26, 1998). Petitioner was sentenced to serve an
aggregate term of ten to twenty (10-20) years in prison. See
Pa. Super. Ct. Op. filed 10/24/02, at 1.
Petitioner filed a direct appeal to the Superior Court, and that appeal
was dismissed without prejudice on February 7, 1997, for failure to file
a brief. Id. Petitioner subsequently filed a petition pursuant
to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§
9541-46, which resulted in the reinstatement of his appellate rights
nunc pro tunc, and on August 26, 1998, the Pennsylvania
Superior Court affirmed the judgment of sentence.*fn2 See
Pa. Super. Ct. Op. filed 10/24/02, at 1 (citing Commonwealth v.
Johnson, 726 A.2d 412 (Pa. Super. 1998) (table)); Pa. Super. Ct. Op.
filed 8/26/98, at 8. On March 30, 1999, the Supreme Court of Pennsylvania
denied allowance of appeal. See Pa. Super. Ct. Op. filed
10/24/02, at 1 (citing Commonwealth v. Johnson, 1999 WL 172451
(Pa. Super. Mar. 30, 1999)).
Thereafter, petitioner filed a PCRA petition, and following the
appointment of counsel, counsel filed an Amended PCRA Petition. In the
Amended PCRA Petition, petitioner "raised a single claim of
ineffectiveness of counsel, based on counsel's failure to raise a
challenge to the sufficiency of the evidence." See Pa. Super.
Ct. Op. filed 10/24/02, at 2. "Specifically, [petitioner] contended that
the prosecution did not establish that [petitioner] had the mens
rea required to sustain the conviction for aggravated assault."
Id. at 2; see also Am. PCRA Pet. filed 5/22/00, at 2.
On October 24, 2002, following the PCRA Court's denial of the Amended
PCRA Petition, the Superior Court found petitioner's claim without merit
and affirmed the denial of PCRA relief. See Pa. Super. Ct. Op. filed 10/24/02, at
3-4. Pennsylvania's Supreme Court denied allowance of appeal on April 9,
2003. See Commonwealth v. Johnson, 821 A.2d 586 (Pa. Apr. 9,
Petitioner thereafter filed the present habeas petition alleging the
following grounds for relief: (1) the conviction and sentence is not
supported by sufficient evidence since "the facts and evidence in this
case . . . demonstrate the victim was not injured by an
automobile;"*fn3 and (2) although the charges against petitioner "were
based upon reckless conduct," the prosecutor improperly argued "alternate
theories including intentional conduct, that was not even charged."
See Hab. Pet. at 9-10. The Response to the habeas petition
alleges that petitioner's present claims are procedurally barred, and in
any event, are without merit. See Resp. to Hab. Pet. at 15-21.
The failure to "fairly present" federal claims in state court, where no
state remedy remains available, "bars the consideration of those claims
in federal court by means of habeas corpus because they have been
procedurally defaulted." Cristin v. Brennan, 281 F.3d 404, 410
(3d Cir. 2002) (citing Coleman v. Thompson, 501 U.S. 722, 731
(1991)). cert. denied, Cristin v. Wolfe, 537 U.S. 897 (2002).
"By refusing to consider claims that have been procedurally defaulted in
state court, [the procedural default] doctrine `encourage[s] state
prisoners to seek full relief first from the state courts, thus giving
those courts the first opportunity to review all claims of constitutional error.'" Cristin, 281 F.3d at 410 (quoting
Rose v. Lundy, 455 U.S. 509, 518-19 (1982)).
In Coleman v. Thompson, 501 U.S. at 750, the Supreme Court
explained the exceptions to the procedural default doctrine:
In all cases in which a state prisoner has
defaulted his federal claims in state court[,]
. . . federal habeas review of the claims is
barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result
of the alleged violation of federal law, or
demonstrate the failure to consider the claims
will result in a fundamental miscarriage of
See Cristin, 281 F.3d at 409 n.5 (quoting Coleman,
501 U.S. at 750). To satisfy the cause and prejudice requirement, "a
petitioner must demonstrate some objective factor external to the defense
that prevented compliance with the state's procedural requirements."
Cristin, 281 F.3d at 412 (quoting Coleman, 501 U.S.
at 753): see also Werts v. Vaughn, 228 F.3d 178, 192-93 (3d
Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478
(1986)), cert. denied, 532 U.S. 980 (2001). The "cause" alleged
must be "something that cannot fairly be attributed to" the petitioner.
Coleman, 501 U.S. at 753.
In the alternative to showing cause and prejudice, a petitioner must
show that failure to review the federal habeas claim will result in a
"miscarriage of justice." See Werts, 228 F.3d at 193.
"Generally, this exception will apply only in extraordinary cases, i.e.,
`where a constitutional violation has probably resulted in the conviction
of one who is actually innocent.'" Id. (quoting
Murray, 477 U.S. at 496). "To show a fundamental miscarriage of
justice, a petitioner must demonstrate that he is actually innocent of
the crime . . . by presenting new evidence of innocence."
Cristin, 281 F.3d at 412 (quoting Keller v. Larkins,
251 F.3d 408, 415-16 (3d Cir. 2001) (citations omitted)).
In the present case, petitioner failed to fairly present his present
claims to the Pennsylvania courts on direct appeal or on post-conviction
appeal. See, e.g., Pa. Super. Ct. Op. filed 10/24/02, at 2-3;
Pa. Super. Ct. Op. filed 8/26/98, at 8-9. Furthermore, petitioner no
longer has a remedy by which the state courts could consider his present
claims because he is now barred from raising those claims in another PCRA
Petition. See 42 Pa. C.S.A. § 9545(b)(1). In particular, a
subsequent PCRA petition would now be time-barred under the PCRA's
one-year time limit on filing petitions, including second or subsequent
petitions.*fn4 See Walker, 2003 WL 115951, at * 1. Where "the
court to which the petitioner would be required to present his claims in
order to meet the exhaustion requirement would now find the claims
procedurally barred[,] . . . there is a procedural default for
purposes of federal habeas." Coleman, 501 U.S. at 735 n.*.
Thus, petitioner's claims are procedurally defaulted, and since
petitioner fails to show "cause and prejudice" or a "fundamental
miscarriage of justice" to excuse his underlying default, the Court may
not consider the merits of petitioner's defaulted claims.*fn5 See
Cristin, 281 F.3d at 409 n.5 (quoting Coleman,. 501 U.S. at 750); see
also Werts, 228 F.3d at 194. Accordingly, the petition should be
denied and dismissed.
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States
Court of Appeals for the Third Circuit, at the time a final order denying
a habeas petition is issued, the district judge is required to make a
determination as to whether a certificate of appealability ("COA") should
issue. Under the AEDPA, "a COA may not issue unless `the applicant has
made a substantial showing of the denial of a constitutional right.'"
Slack v. ...