United States District Court, E.D. Pennsylvania
July 16, 2004.
ONZIE TRAVIS, Petitioner
ROBERT MEYERS, et al., Respondents.
The opinion of the court was delivered by: JAMES MELINSON, Chief Magistrate Judge
REPORT AND RECOMMENDATION
Presently before this court is a pro se petition for a writ
of habeas corpus filed by a state prisoner pursuant to
28 U.S.C. § 2254. Petitioner, Onzie Travis, is currently on parole
and resides at 249 West Abbotsford Avenue, Philadelphia,
Pennsylvania. For the reasons which follow, this court recommends
that the petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On June 1, 1995, in the Court of Common Pleas of Philadelphia
County, Travis pled guilty to delivery of a controlled substance
and criminal conspiracy. In exchange for this plea, the
Commonwealth agreed to nolle pros the remaining charges against
him. On July 31, 1995, prior to sentencing, Travis withdrew his
guilty plea and his case was listed for trial.
On November 6, 1995, following a jury trial, Travis was
convicted of delivery of heroin. Travis was sentenced to six (6)
to fifteen (15) years' imprisonment on November 21, 1995. On
August 27, 1996, his appeal from the judgment of sentence was
dismissed by the Superior Court of Pennsylvania for failure to
file a brief. Commonwealth v. Travis, No. 4265 Philadelphia
1995. The Supreme Court of Pennsylvania denied allocatur on
April 28, 1997. Commonwealth v. Travis, No. 803 E.D. Allocatur Docket 1996.
On June 9, 1997, Travis filed his first petition for a writ of
habeas corpus. This petition was summarily dismissed because it
was clear from the face of the petition that Travis had failed to
exhaust his state remedies. Travis v. Mazurkiewicz, et al.,
97-CV-3925 (J. Waldman, July 8, 1997). The United States Court of
Appeals for the Third Circuit denied a certificate of
appealability on January 29, 1998. Travis v. Mazurkiewicz, et
al., Civil Action No. 97-1594.
On March 17, 1998, pursuant to the direction of the federal
court, Travis filed a pro se petition for collateral review
pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"),
42 Pa. C.S.A. § 9541 et seq. Counsel was appointed to represent
Travis in these collateral proceedings; however, at Travis's
request, counsel was relieved and Travis was permitted to proceed
pro se. On April 13, 1999, the Commonwealth agreed that
Travis's direct appeal rights should be reinstated nunc pro
tunc and counsel was appointed to represent Travis. On May 27,
1999, Travis was again permitted to proceed pro se and counsel
was permitted to withdraw.
Travis perfected his appeal and a briefing schedule was issued.
Thereafter, Travis filed a motion to defer briefing and a motion
to correct the certified record. On July 20, 1999, the Superior
Court vacated its briefing schedule and remanded the case to the
trial court to consider the motion to correct the record. The
trial court supplemented the record and provided Travis with
transcripts from his guilty plea, trial, and sentencing hearings.
On October 7, 1999, Travis then filed a brief raising twenty-one
issues for review. The Commonwealth filed its brief on February
11, 2000. Travis filed a reply on February 23, 2000.*fn1 The Superior Court entered a judgment order on September 27,
2000, again remanding this matter to the trial court because "the
record does not include, and [Travis] has apparently not been
provided with, a transcript of the voir dire or the proceeding
granting the withdrawal of his guilty plea." Commonwealth v.
Travis, No. 1510 EDA 1999 (Sept. 27, 2000, slip op. at 2).
Accordingly, the case was "remanded to the trial court for thirty
days in order to provide [Travis] with the necessary transcripts
or, if the proceedings were never recorded to so advise, and to
resolve [Travis's] outstanding motions to correct the record.
Id. On March 2, 2001, the Superior Court again asked the trial
court to advise of the status of the transcripts. By order dated
March 12, 2001, the trial court advised the Superior Court that
it had obtained a transcript of the plea withdrawal proceedings
and forwarded it to Travis. The trial court further advised that
there was no transcript available of the voir dire proceedings.
On April 3, 2001, the trial court denied Travis's motion to
correct the record.
The case was then returned to the Superior Court and a new
briefing schedule was issued. Travis filed a supplemental brief
in which he raised four additional issues. The Commonwealth filed
its brief addressing the merits of the claims raised. Travis then
filed a "Supplemental Letter Reply Brief." The Superior Court
affirmed the judgment of sentence in a memorandum opinion on
January 3, 2003. Commonwealth v. Travis, 797 A.2d 377 (
Pa. Super. 2002) (table). On July 2, 2002, the Supreme Court of
Pennsylvania denied Travis's request for allowance of appeal.
Commonwealth v. Travis, No. 54 E.D. Allocatur Docket 2002.
Thereafter, Travis filed the instant petition in which he
claims that the Superior Court erred: 1) in finding no prejudice
resulting from the failure to furnish transcripts within a reasonable time; 2) in holding that his falsification of
transcripts claim was without merit; 3) in holding that there was
no prosecutorial misconduct or ineffective assistance of counsel;
4) in permitting the Commonwealth to address issues that it had
not addressed in its initial brief; 5) in holding that curative
instructions were adequate when voir dire was missing; and 6)
in holding that his sentence was not vindictive. The Commonwealth
denies that Travis is entitled to habeas relief because the
claims raised provide no basis for federal relief, are
procedurally defaulted, or are without merit. Travis has also
filed a traverse addressing various issues raised by the
Commonwealth's response and presenting further argument in
support of his claims.
Absent exceptional circumstances, a federal court will not
entertain the claims of a habeas petitioner unless he has
exhausted all available state remedies. 28 U.S.C. § 2254(b);
O'Sullivan v. Boerckel, 526 U.S. 838, 845-848 (1999); Vasquez
v. Hillery, 474 U.S. 254 (1986); Picard v. Connor,
404 U.S. 270 (1971). A petitioner "shall not be deemed to have exhausted
the remedies available . . . if he has the right under the law of
the state to raise, by any available procedure, the question
presented." 28 U.S.C. § 2254(c). The policy behind the total
exhaustion doctrine is rooted in the notion of comity: the state
must be given the initial opportunity to pass upon and correct
the alleged violations of the petitioner's constitutional rights.
O'Sullivan, 526 U.S. at 844-45; Picard, 404 U.S. at 275.
Exhaustion does not require that the highest state court rule on
the merits of a petitioner's claim, but only that said court be
given the opportunity to do so. Swanger v. Zimmerman,
750 F.2d 291 (3d Cir. 1984). To satisfy the exhaustion requirement, the
petitioner must fairly present every claim included in a federal
habeas petition to each level of the state courts. Duncan v.
Henry, 513 U.S. 364, 365 (1995); O'Sullivan, 526 U.S. at 846-47; Doctor v. Walters, 96 F.3d 675, 678 (3d Cir.
In order to be eligible for federal habeas relief, Williams
must establish that the state court's adjudication of the merits
of his claims: "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)
(1), (d)(2); Williams v. Taylor, 529 U.S. 362,
120 S.Ct. 1495, 1504 (2000). In addition, any factual determinations made
by the state court shall be presumed correct unless rebutted by
clear and convincing evidence. 28 U.S.C. § 2254(e).
The United States Supreme Court in Williams set forth a
two-part test for analyzing claims under § 2254(d) making it
clear that the "contrary to" and "unreasonable application"
clauses of § 2254(d) have independent meaning. First, under the
"contrary to" clause, a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law, or if the
state court decides a case differently from the Supreme Court on
a set of materially indistinguishable facts. Id. at 1519.
Second, under the "unreasonable application" clause, a federal
habeas court may grant the writ if the state court identifies
the correct legal principle from the Supreme Court's decisions
but unreasonably applies that principle to the facts of the
prisoner's case. Id. at 1520. The "unreasonable application"
inquiry requires the habeas court to "ask whether the state
court's application of clearly established federal law was
unreasonable." Id. "A federal habeas court may not issue the
writ simply because the court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522. See
also Early v. Packer, 537 U.S. 3, 10-11 (2002) (federal
courts may not substitute their own judgment for that of the
As a preliminary matter this court shall consider the
Commonwealth's assertion that several of Travis's claims are
procedurally defaulted and not subject to federal habeas
review. Specifically, the Commonwealth argues that Travis's
claims that trial counsel was ineffective for failing to object
to alleged prosecutorial misconduct (Claim 3); that the Superior
Court erred in rejecting his claim of jury bias (Claim 5); and
that his sentence was vindictive (Claim 6); are waived because he
did not include these claims in his allocatur petition in the
Pennsylvania Supreme Court. In his traverse, Travis agrees that
his jury bias and sentencing claims are procedurally defaulted
and "elects to delete them from his petition." As a result these
claims will not be considered.
Travis takes issue with the Commonwealth's assertion that his
ineffective assistance claim is defaulted. A review of the record
reveals that, as with the prior two claims, this claim was not
included in Travis's allocatur petition. However, Travis
asserts that this claim was "inextricably intertwined" with a
claim raised in his petition for allowance of appeal.
Petitioner's Traverse at 1-2. Travis refers to his claim that he
was entitled to a hearing to prove that the transcripts of his
trial proceedings had been falsified. Id. This court cannot
A habeas petitioner's state court pleadings must demonstrate
that he or she has presented the legal theory and supporting
facts asserted in the federal habeas petition in such a manner
that the claims raised in the state courts are "substantially
equivalent" to those asserted in the federal court. Doctor, 96
F.3d at 678 (citing Bond v. Fulcomer, 864 F.2d 306, 309 (3d
Cir. 1989)). A state prisoner does not "fairly present" a federal
claim to a state court if that court must read beyond the petition, brief, or similar papers to find material
that will alert it to the presence of such a claim. Baldwin v.
Reese, 124 S.Ct. 1347, 1350 (2004). A review of Travis's
petition for allowance of appeal does not support his assertion
that his claims of ineffective assistance of counsel and
prosecutorial misconduct were considered by the Pennsylvania
Supreme Court. There is nothing contained in the referenced
section of his state petition that refers to ineffective
assistance of counsel or prosecutorial misconduct; rather, the
issue concerns the fairness of the state's appellate process and
the lack of an evidentiary hearing to resolve his claim that the
trial transcripts had been falsified.
If a petitioner has not fairly presented his claims to the
state court and no state avenue of relief remains available, the
unexhausted claims may be deemed exhausted. Gray v. Netherland,
518 U.S. 152 (1996). This requirement does not apply when "state
procedural rules bar a petitioner from seeking further relief in
state courts." Lines v. Larkins, 208 F.3d 153, 160 (3d Cir.
2000); see also Doctor v. Walters, 96 F.3d 675, 681 (3d
Cir. 1996). In such cases, exhaustion is not possible because the
state court would refuse on procedural grounds to hear the merits
of the claim, and thus any attempts to assert the claims would be
futile. Thus, this court must conclude that Travis did not
exhaust his state remedies with regard to these claims and his
failure to do so results in procedural default. See
O'Sullivan, 526 U.S. at 848 (where a prisoner fails to present
his claim in a petition for discretionary review to a state court
of last resort he has procedurally defaulted that claim).
Where the highest state court has not, or will not, consider
the merits of a petitioner's habeas claims because of a state
procedural default, federal review is prohibited absent a showing
of cause and prejudice or a miscarriage of justice. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Bousley v. United States, 523 U.S. 614, 622 (1999);
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v.
Reed, 489 U.S. 255, 260-63 (1989). To show cause, Travis must
demonstrate that "some objective factor external to the defense
impeded counsel's efforts to comply with the State's procedural
rule." Coleman, 501 U.S. at 753; Murray v. Carrier,
477 U.S. 478, 488 (1986); Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir.
1996). Once cause is established, Travis must also show that
prejudice resulted from trial errors that "worked to
[petitioner's] actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions." Murray,
477 U.S. at 494. To establish the fundamental miscarriage of
justice exception to the procedural default rule, Travis must
demonstrate his "actual innocence." Schlup v. Delo,
513 U.S. 298, 324 (1995); Calderon v. Thompson, 523 U.S. 538, 559 (1998)
(actual innocence sufficient to excuse procedural default
requires petitioner to present reliable evidence not offered at
trial to show that "it is more likely than not that no reasonable
juror would have convicted him in light of the new evidence").
Travis provides no explanation why this claim was not properly
presented to the state courts as required to establish cause. He
offers no objective factor external to the defense as impeding
his efforts to comply with the State's procedural rule.
Furthermore, Travis offers no reliable evidence to establish
actual innocence as required by the fundamental miscarriage of
justice exception to the procedural default rule. Schlup
513 U.S. 298, 324 (1995). Thus, this court must conclude that
Travis's claim of ineffective assistance of counsel and
prosecutorial misconduct (Claim 3) is procedurally defaulted and
not subject to federal habeas review.
Next, Travis contends that the Superior Court erred in
permitting the Commonwealth to file a second brief addressing the
merits of his appellate claims. Travis asserts that the Commonwealth waived the right to address the merits of his claims
when it filed its initial brief arguing that the appeal should be
This is an issue of state procedure that is not subject to
federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (it is not the province of the federal court to reexamine
a state court's determination of state law); Johnson v.
Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997) ("it is well
established that a state court's misapplication of its own law
does not generally raise a constitutional claim). The federal
courts have no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of
constitutional dimension." Geschwendt v. Ryan, 967 F.2d 877,
888-89 (3d Cir. 1992). Clearly, this issue was decided as a
matter of state law and does not implicate any federal
Next, Travis contends that he was denied due process and equal
protection because of the unavailability of the voir dire
transcript and the delay in his receipt of other transcripts of
trial proceedings. Travis asserts that the Commonwealth has
engaged in deliberate efforts to delay his state court
proceedings in an effort to "gain tactical advantage." In
considering this claim, the Superior Court held that there was a
right to a reasonably speedy appeal and applied the fourfactor
test set forth in Barker v. Wingo, 407 U.S. 514, 92 S. CT. 2182
(1972), as a means of determining whether due process has been
violated. Commonwealth v. Travis, No. 1510 EDA 1999 (slip op.
at 6). The Superior Court then considered the procedural history
of this case:
Appellant has experienced considerable delay in the
review of his 1996 sentence. The delay was occasioned
by the dismissal of his initial direct appeal for
failure to file a brief. The matter was delayed
further when the Appellant had to pursue a direct
appeal nunc pro tunc with the PCRA court which
ultimately granted him relief. Yet another length of
delay followed which Appellant awaited receipt of
transcripts which we ordered to be supplied to him
and made part of the record in accord with
Appellant's request. Appellant has attempted to move this case
forward and it cannot be said that he sat idly by
without asserting his right to have his appeal
speedily processed. Nevertheless, we cannot say that
the delay was fundamentally unfair or that Appellant
has been prejudiced by this delay.
Id. at 7. After considering the specific claims raised by
Travis in this regard, the Superior Court concluded that they
were without merit, and therefore, Travis had not been prejudiced
by any delay in the case. Id. at 8.
The Superior Court also reviewed Travis's claim the he was
prejudiced by the lack of a transcript of the voir dire
proceedings. Again, the Court found no prejudice to Travis after
considering the merits of his claim that several jurors should
have been excused for cause based on questionnaires in which they
indicated that they would believe the testimony of a police
officer over another because of the police officer's position.
However[,] even accepting Appellant's statements that
certain potential jurors indicated they would believe
a police officer over another because of the
officer's official position, this response from a
juror does not require the juror to be stricken for
cause. The test for determining whether a prospective
juror should be disqualified is whether he or she is
willing and able to eliminate the influence of any
scruples and render a verdict according to the
evidence. Commonwealth v. Koehler, 737 A.2d 225
(Pa. 1999). The trial court must decide whether any
biases or prejudices can be put aside following the
court's instruction which can be determined based on
the potential juror's answers to questions and
demeanor. Id. Because the trial court is in the
best position to assess the credibility of a
potential juror, the decision on whether to
disqualify is within the discretion of the trial
court and will not be reversed in the absence of a
palpable abuse of discretion. Id.
Appellant argues that the court erred in refusing to
strike those jurors who indicated on their
questionnaire that they would believe a police
officer, simply because of that individual's
position. Yet, Appellant acknowledges that the court
issued an instruction as to the law and the jurors
assured the court of their impartiality. Appellant's
Brief at 21. Nevertheless, Appellant alleges the
court relied too heavily on the juror's self-assessment
that they could be impartial. Where a court questions
prospective jurors regarding a potential bias and is
satisfied with their statements that they would be
fair and impartial, we are unable to conclude that
the trial court abused its discretion in refusing to
strike these individuals from the jury. Commonwealth
v. Reiss, 655 A.2d 163 (Pa. Super. 1995). Thus,
Appellant is entitled to no relief on this claim or
issue number 7, which questions whether the failure
to strike jurors for cause deprived Appellant of
Id. at 9-10.
The Superior Court also rejected Travis's claim that his
objections to alleged falsifications and inaccuracies in the
transcripts had not been entertained. On remand, the trial court
had considered Travis's objections to the record and held that
the claims were invalid and that any inaccuracies would not be
material to the outcome of the case or to any issues raised by
Travis. The Superior Court found no abuse of discretion by the
trial court. Id. at 10. The Superior Court found further that
Travis's presence at the trial court's ruling on this motion was
not required, thus, there was no due process violation. Id.
In each instance set forth above, this court is unable to find
that the state court applied clearly established federal law
erroneously or incorrectly, or that the application of the law to
the facts was objectively unreasonable." Id. at 1522. See
also Early v. Packer, 537 U.S. 3, 10-11 (2002) (federal
courts may not substitute their own judgment for that of the
Although there has been significant delay in these proceedings,
this court agrees with the determination of the state court that
Travis has failed to establish that the delay was fundamentally
unfair or that he had been prejudiced by the delay. Moreover,
this court would find that there was no deliberate withholding of
the transcripts and that significant delay was the result of
Travis's decision to proceed pro se, his unfamiliarity with
state court procedures, the failure to file a timely brief, his own requests for extensions
of time, and the various motions he filed challenging the
accuracy and authenticity of the trial transcripts which required
a remand to the trial court. Travis's filing of a premature
habeas petition also added to the delay in his state
This court also agrees that Travis's claim of prejudice
resulting from the absence of the voir dire transcripts is
without merit.*fn2 The mere fact that the voir dire
transcript is unavailable does not establish a violation of due
process. See Karabin v. Petsock, 758 F.2d 966, 969 (3d Cir.
1985) quoting Griffin v. Illinois, 351 U.S. 12, 20 (1956) (the
Supreme Court has never held that due process requires a verbatim
transcript of the entire proceedings, states may find "other
means of affording adequate and effective appellate review" of
criminal convictions). Pennsylvania has a procedure for
reconstructing a transcript of proceedings in the absence of the
transcript. See Pa.R.A.P. 1923. The Superior Court accepted
Travis's statement in the absence of a transcript in considering
his assertion of jury bias and concluded that this claim was
without merit. Thus, the absence of a verbatim transcript did not
prevent Travis from presenting his claim or violate due process.
Finally, this court finds that the trial court did not violate
due process by considering Travis's claim that the transcripts in
his case had been falsified without his being present before the
court. On remand, the trial court reviewed the transcripts and
Travis's objections thereto. The trial court determined that the transcripts were accurate and
there was no merit to the claims of inaccuracies or that the
transcripts had been falsified. Further, the trial court found
that none of the alleged errors were material to the outcome of
the case or any claims that Travis had raised on appeal. The
extent of Travis's participation in this review was sufficient to
insure an adequate review of his claims. It was within the
discretion of the trial court to decide whether an evidentiary
hearing was required.
Accordingly, I make the following:
AND NOW, this day of July, 2004, IT IS RESPECTFULLY RECOMMENDED
that the petition for a writ of habeas corpus be DENIED with
prejudice. It is further RECOMMENDED that there is no probable
cause to issue a certificate of appealability.