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July 16, 2004.

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 be denied.

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 appeal);
(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 appeal.*fn1 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 Recommendation.

  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 grounds.


  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 court.

  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 ...

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