United States District Court, E.D. Pennsylvania
July 16, 2004.
ANDRE FITZGERALD COHEN, a/k/a CARLTON BENTON, Petitioner,
FRANK D. GILLIS, et al., Respondents.
The opinion of the court was delivered by: LOUIS POLLAK, Senior District Judge
Andre Fitzgerald Cohen, a/k/a Carlton Benton, is currently
serving a sentence of fifteen to thirty years in a Pennsylvania
correctional institution after being convicted of two counts of
rape, two counts of involuntary deviant sexual intercourse, one
count of indecent assault, one count of unlawful restraint, and
one count of recklessly endangering another person. Mr. Cohen has
filed a pro se habeas corpus petition with this court, pursuant
to 28 U.S.C. § 2254. I initially received from Magistrate Judge
Rapoport a Report and Recommendation ("first R&R") suggesting
that Mr. Cohen's claims were barred by the teachings of Stone v.
Powell, 428 U.S. 465 (1976). In a memorandum and order dated May
22, 2003, I determined that the subsequent case of Kimmelman v.
Morrison, 477 U.S. 365 (1986), rendered Stone inapplicable to
at least one of Mr. Cohen's claims, and recommitted the matter to
the Magistrate Judge for another Report and Recommendation. I have now received Magistrate Judge Rapoport's second Report
and Recommendation ("second R&R"), which recommends that Mr.
Cohen's habeas petition be denied. I agree with the Magistrate
Judge's ultimate recommendation, but on somewhat different
grounds. Accordingly, for the reasons discussed in this
memorandum, Mr. Cohen's petition for a writ of habeas corpus will
Factual and procedural background
At a June 1994 trial, the Commonwealth of Pennsylvania
presented evidence that, in December of 1992, Mr. Cohen took a
female victim to his Allentown apartment, where he committed
sexual offenses against the victim at knifepoint. The victim
later fled the apartment with the knife and left it near the
apartment. She then reported the crimes to the police. The police
found the knife and then proceeded to the apartment, which they
entered without a warrant. After Mr. Cohen was taken into custody
and positively identified by the victim, he provided the police
with written consent to search his residence. The police found
several items of interest in the apartment: a white powder, drug
paraphernalia, clothing, and bed linens. Semen stains were later
found on the clothing and bed linens. Mr. Cohen contends that
this warrantless search was invalid, because his consent was
obtained only after the police had already entered his apartment
and taken him into custody.
Mr. Cohen was convicted on June 20, 1994, by a jury and
sentenced on August 16, 1994, to an aggregate sentence of not
less than fifteen years nor more than thirty years. Initially, no
direct appeal was filed to the Pennsylvania Superior Court.
However, Mr. Cohen filed a number of post-conviction submissions:
(1) On September 22, 1995, the trial judge denied Mr.
Cohen's August 9, 1995 request for appointment of new counsel (on the
grounds that the trial counsel failed to bring an
(2) On December 9, 1996, Mr. Cohen's Pro Se
Petition to Appeal Nunc Pro Tunc was denied;
(3) On January 6, 1997, Mr. Cohen filed a petition
for relief under Pennsylvania's Post Conviction
Relief Act ("PCRA"). The trial judge, on January 15,
1997, appointed counsel for Mr. Cohen. A hearing on
the petition was held on February 11, 1998. After the
hearing, Mr. Cohen's counsel was afforded the
opportunity to file an amended petition;
(4) Appointed counsel filed an amended PCRA petition
on May 1, 1998, alleging (a) error by trial counsel
in failing to object to evidence of drug usage and
domestic violence; (b) illegal arrest of Mr. Cohen;
and (c) trial counsel's failure to file certain
pretrial motions. After another evidentiary hearing,
the petition was denied on December 22, 1998;
(5) After a September 10, 1999 hearing, Mr. Cohen was
granted leave to file an appeal nunc pro tunc,
after the PCRA counsel failed to consult with Mr.
Cohen after the December 22, 1998 decision. New
counsel was appointed;
(6) An appeal of the denial of the PCRA petition was
filed with the Superior Court of Pennsylvania. The
appeal was dismissed on July 17, 2000 because Mr.
Cohen had failed to file a brief;
(7) Mr. Cohen filed a second pro se PCRA petition
on August 24, 2000. On October 26, 2000, the trial
judge granted withdrawal of the PCRA petition,
granted a second appeal nunc pro tunc, and
appointed yet another counsel. An appeal was filed
alleging (a) trial counsel's ineffectiveness in
failing to object to testimony of drug usage and
domestic violence; (b) trial counsel's failure to
object to the consolidation of the rape case with a
case involving unsworn falsification; and (c) trial
counsel's ineffectiveness in failing to file a motion
to suppress evidence found in Mr. Cohen's apartment
after police entry without a warrant. On September
20, 2001, the Superior Court denied the
The instant petition
On December 28, 2001, Mr. Cohen filed in this court a petition
under 28 U.S.C. § 2254 requesting habeas corpus relief on four
grounds. The first two grounds listed by Mr. Cohen raise Fourth
Amendment issues: "conviction obtained by use of evidence
obtained pursuant to an unlawful arrest" and "conviction obtained
by use of evidence gained pursuant to an unconstitutional search
and seizure." The last two grounds "denial of effective
assistance of counsel" and "denial of right of appeal"
represent claims under the Sixth Amendment. On January 16, 2002,
I referred the case to Magistrate Judge Rapoport for a Report and
The Magistrate Judge, on September 30, 2002, submitted his
first R&R, which recommended that the petition for writ of habeas
corpus be denied. The first R&R concluded that under the Supreme
Court's decision in Stone v. Powell, 428 U.S. 465 (1976), the
court was precluded from considering the first two claims,
because Cohen "fully and fairly litigated" those Fourth Amendment
claims in state court. The first R&R did not specifically address
the remaining two Sixth Amendment claims.
In a May 22, 2003, memorandum and order, I declined to adopt
the first R&R. I found that Mr. Cohen had litigated his Fourth
Amendment claims in state court only in the context of his Sixth
Amendment claim of ineffective assistance of counsel.
Accordingly, the reasoning of Kimmelman v. Morrison,
477 U.S. 365 (1986), suggested that Stone did not necessarily bar Mr.
Cohen from pursuing his Fourth Amendment claims as part of his
petition for habeas relief. I also held that, under Kimmelman,
Mr. Cohen's Sixth Amendment claims clearly were not precluded by
Stone. So that Mr. Cohen's petition could be construed in light
of Kimmelman, I recommitted the case to the Magistrate Judge for a new Report and
Recommendation. On January 27, 2004, after soliciting additional
briefing from the parties, the Magistrate Judge submitted the
second R&R. After reviewing the second R&R and the submissions of
the parties, I have determined that habeas relief is not
warranted either on Fourth Amendment or on Sixth Amendment
1. Fourth Amendment claims
Mr. Cohen maintains that he was convicted based on evidence
obtained pursuant to an unlawful arrest and an illegal search and
seizure. This court may not reach the merits of Mr. Cohen's
Fourth Amendment claims, however, if federal habeas review of the
claims is foreclosed by Stone v. Powell. In Stone, the
Supreme Court held that "where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment
claim, a state prisoner may not be granted federal habeas corpus
relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial."
Stone, 428 U.S. at 494.
Whether Mr. Cohen actually litigated the Fourth Amendment
issue of whether his arrest was illegal before the Superior Court
is not clear. On one hand, Mr. Cohen's appeal to the Superior
Court comprised three claims, all related to ineffectiveness of
trial counsel under the Sixth Amendment. The Fourth Amendment
claims were raised only indirectly, as elements of proof of his
Sixth Amendment claims. On the other hand, the Superior Court did
address the Fourth Amendment issue, finding that "the warrantless
search was valid and [Mr. Cohen] cannot prevail on the merits of
the claim." Commonwealth v. Cohen, No. 3344-EDA-2000, slip op.
at 5 (Pa. Super. Ct. Sept. 20, 2001). Even in reaching this
conclusion, however, the Superior Court was weighing the merits of Cohen's Fourth Amendment claims only
in the context of a Sixth Amendment challenge to his conviction.
As I noted in my May 22, 2003, memorandum, Kimmelman instructs
that while a Fourth Amendment claim may be one element of proof
of a Sixth Amendment claim, "the two claims have separate
identities and reflect different constitutional values."
Kimmelman, 477 U.S. at 375. Consequently, the fact that the
Superior Court addressed Mr. Cohen's Fourth Amendment claims as
part of its Sixth Amendment analysis does not necessarily signify
that Mr. Cohen litigated his Fourth Amendment claims in state
What ultimately matters under Stone, however, is not whether
Mr. Cohen actually litigated his Fourth Amendment claims, but
whether he had "an opportunity for full and fair litigation" of
those claims. Stone, 428 U.S. at 494. In Boyd v. Mintz,
631 F.2d 247 (3d Cir. 1980), the Third Circuit "assum[ed], without
deciding, that `opportunity' simply means providing procedures by
which one can litigate a fourth amendment claim." Id. at 250.
One year later, the Third Circuit expressly adopted the
interpretation of "opportunity" that it merely assumed in Boyd.
In Hubbard v. Jeffes, 653 F.2d 99 (3d Cir. 1981), the court
held that a petitioner had a "full and fair opportunity" to
present his Fourth Amendment claim to the state courts despite
his counsel's failure to raise the claim, because the "failure to
do so was not brought about by any restriction of the opportunity
by the state courts." Id. at 103.
The other circuit courts that have interpreted Stone have
also rejected the contention that "opportunity" requires actual
litigation in state court of a Fourth Amendment claim. See Caver
v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978) ("if a state
provides the processes whereby a defendant can obtain full and
fair litigation of a fourth amendment claim, Stone v. Powell
bars federal habeas corpus consideration of that claim whether or
not the defendant employs those processes"); Gates v. Henderson, 568 F.2d 830, 839 (2d Cir.
1977) (en banc) ("[i]n Stone all that the Court required was
that the state have provided the opportunity to the state
prisoner for full and fair litigation of the Fourth Amendment
claim"); see also Lenza v. Wyrick, 665 F.2d 804, 808 (8th Cir.
1981); United States ex rel. Maxey v. Morris, 591 F.2d 386,
388-89 (7th Cir. 1979); Pignone v. Sands, 589 F.2d 76, 79 (1st
Cir. 1978); Rice v. McKenzie, 581 F.2d 1111, 1113 (4th Cir.
1978); Tisnado v. United States, 547 F.2d 452, 455 (9th Cir.
1976). It thus appears well settled that Stone bars federal
habeas review of a Fourth Amendment claim when a petitioner could
have litigated that claim in the state tribunals whether or not
the petitioner actually litigated the claim.
Mr. Cohen has made no showing that he was prevented from
raising his Fourth Amendment claims in his nunc pro tunc appeal
to the Superior Court. The fact that he did not ultimately
present those claims before the state tribunal is immaterial.
Therefore, Stone precludes this court from providing habeas
corpus relief based on Mr. Cohen's Fourth Amendment claims.
2. Sixth Amendment claims
Mr. Cohen also contends that he was denied the effective
assistance of counsel by virtue of his attorney's failure (1) to
file a motion to suppress the evidence (white powder, drug
paraphernalia, and semen stains on clothing and bed linens) Mr.
Cohen claims was illegally obtained, and (2) to file a notice of
appeal following Mr. Cohen's conviction. While, as discussed
above, Stone precludes this court from considering Mr. Cohen's
Fourth Amendment claims, the Supreme Court made clear in
Kimmelman that Stone does not foreclose federal habeas
consideration of his Sixth Amendment ineffective assistance
claims even the claim based on counsel's failure to raise Fourth Amendment issues.
Kimmelman, 477 U.S. at 368.
In order to establish ineffective assistance of counsel, a
defendant "must show that counsel's performance was deficient"
and "must show that the deficient performance prejudiced the
defense." Strickland v. Washington, 466 U.S. 668, 687 (1984).
In the context of an attorney's failure to file a motion to
suppress under the Fourth Amendment, Strickland's second prong
is evaluated as follows:
Where defense counsel's failure to litigate a Fourth
Amendment claim competently is the principal
allegation of ineffectiveness, the defendant 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 375. With respect to his first Sixth
Amendment claim that he was denied the effective assistance of
counsel by his attorney's failure to move to suppress evidence
Mr. Cohen has satisfied neither element of this "prejudice"
prong. As the Superior Court concluded, his underlying Fourth
Amendment claims do not have arguable merit. The police requested
and obtained written consent from Mr. Cohen before searching his
apartment. Even if the Fourth Amendment claims were meritorious,
there is not a reasonable probability that the verdict would have
been different absent the excludable evidence. Mr. Cohen
testified at trial regarding his drug use in support of his
defense that the victim came to his apartment to use drugs, and
then engaged in consensual sex with him. Therefore, the evidence
of drug use and sexual intercourse obtained by the police merely
reinforced facts to which Mr. Cohen admitted in court. As the
Magistrate Judge found in his second R&R, it is highly improbable
that the inclusion of the evidence that Mr. Cohen claims was
illegally obtained altered the outcome of his trial. Mr. Cohen also claims that he was denied his right to a direct
appeal by his attorney's failure to file the appropriate papers.
Whether or not the attorney's conduct was deficient at the time
he neglected to file a notice of appeal, Mr. Cohen's claim became
moot when he was granted leave to file an appeal nunc pro tunc
after a hearing that took place on September 10, 1999. (Mr. Cohen
did in fact file an appeal nunc pro tunc, which was denied by
the Superior Court in its memorandum of September 20, 2001.)
Consequently, neither of Mr. Cohen's Sixth Amendment claims
provides a basis for this court to grant habeas relief.
Because federal habeas relief on the basis of Mr. Cohen's
Fourth Amendment claims is unavailable, and because Mr. Cohen has
not established that he was deprived of his Sixth Amendment right
to the effective assistance of counsel, in the attached order the
Petition for Writ of Habeas Corpus will be denied. ORDER
After review of the Petition for Writ of Habeas Corpus and the
Report and Recommendation of United States Magistrate Judge
Arnold C. Rapoport dated January 26, 2004, and for the reasons
stated in the accompanying memorandum, it is hereby ORDERED that:
(1) The Report and Recommendation (Docket #16) is
ADOPTED insofar as it recommends the denial of the
Petition for Writ of Habeas Corpus;
(2) The Petition for Writ of Habeas Corpus (Docket
#1) is DENIED in its entirety and DISMISSED with
(3) There is no basis for the issuance of a
certificate of appealability.