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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


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.


  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. 1996).

  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 state court).

  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 agree.

  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 quashed.

  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 constitutional law.

  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 peremptory challenges.
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 state court).

  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 proceedings.

  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.

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