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United States District Court, E.D. Pennsylvania

July 19, 2004.

ANDRE J. BRODEUR, Jr. [DC-3877], Petitioner
SUPT. GEORGE N. PATRICK, et al., Respondents.

The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge


Presently before this court is a pro se Petition for Writ of Habeas Corpus, filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. Petitioner is currently incarcerated at State Correctional Institution ("SCI") Houtzdale, Pennsylvania, where he is serving a sentence of eight and one half years to seventeen years for his involvement in "replating" and reselling stolen vehicles. For the reasons, which follow, it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed without an evidentiary hearing.


  On July 29, 1996, Petitioner entered a plea of not guilty before the Honorable R. Barclay Surrick of the Court of Common Pleas of Delaware County Pennsylvania. On July 30, 1996, Petitioner's motion to suppress and motion to compel production of the confidential informant was denied at the conclusion of a suppression hearing. He proceeded to a non-jury trial and was convicted of unauthorized use of a motor vehicle; theft by receiving stolen property; removal or falsification of identification number; dealing in vehicles with removed or falsified numbers; dealing in titles and plates for stolen vehicles; knowing or intentional possession of a controlled substance; delivery, manufacture or possession with intent to deliver or manufacture a controlled substance; former convict not to own a firearm; and criminal conspiracy. Judge Surrick on September 20, 1996, sentenced petitioner to an aggregate term of incarceration of not less than eight and one half years or more than seventeen years. Commonwealth's Response: Exhibit "A" (June 27, 1997 Court of Common Pleas Opinion) at pp. 1-2.

  The facts underlying Petitioner's conviction were set forth by the trial court as follows:

  On February 8, 1996, Andre Brodeur was arrested by the Criminal Investigation Division of the Office of the District Attorney of Delaware County. At the time he was arrested, he was driving a stolen 1988 maroon and silver Ford Bronco. The car he was driving had a replated public vehicle identification number (VIN) which was not the same as the confidential VIN. Id. at p. 1.

  Detective Larry Hughes, a nine year veteran of the Criminal Investigation Division (CID) of the Office of the District Attorney, received information from a confidential, reliable informant sometime in mid-January of 1996. The confidential informant (C.I.) said that the Petitioner, Andre Brodeur, was involved in the possession of stolen vehicles and the replating of stolen cars for a profit. Id. at pp. 4-5.

  The C.I. also informed the Detective that Petitioner had a reputation for being involved in this type of activity and had a prior criminal record for this form of activity. The C.I. told Detective Hughes that he had been in the Petitioner's residence about six months before and had observed numerous automobile titles, automobile transfer documents, licenses, tags and items used to replate stolen vehicles such as VIN plates. He also saw automobile parts such as ignition systems and door locks. Id. at p. 5.

  The C.I. informed Detective Hughes that he had overheard a conversation in which the Petitioner stated that he pays people to steal vehicles. These vehicles were then replated or sold to others who would then replate them. Petitioner would pay these individuals in cash or narcotics. The C.I. also stated that he heard the Petitioner state that the 1988 maroon (red) and silver Bronco was stolen and replated. Id. at p. 5.

  Detective Hughes drove to the Petitioner's residence with the C.I. The Petitioner's home matched the description of the one given to Detective Hughes by the C.I. The C.I. then pointed out the maroon and silver 1988 Bronco behind the Petitioner's home, indicating that this was the stolen and replated vehicle which Petitioner drove. Id. at pp. 5-6.

  Then Detective Hughes verified the registration number of the automobile with PENNDOT. The 1988 Ford Bronco was in fact registered to Maryann Brodeur at Petitioner's address. The title history indicated that the owner before Maryann Brodeur was a resident of Wayne, Delaware County. After talking to the insurance company, Detective Hughes was informed that the maroon and silver 1988 Ford Bronco that was registered to Maryann Brodeur had been involved in a serious accident in Haverford Township. Hughes than contacted the Haverford Township Police Department and the officer informed him that the 1988 Ford Bronco that had been involved in that accident had been severely damaged. He also told Detective Hughes that the 1988 Ford Bronco was blue or black and not maroon and silver. Id. at p. 6.

  After Detective Hughes ran a criminal history check on the Petitionr, he learned that Petitioner had a lengthy criminal history including multiple convictions for possession of stolen vehicles and altering serial numbers on vehicles. Detective Hughes set up a surveillance of Mr. Brodeur's home on February 8, 1996 at about 10:00 A.M. Petitioner Brodeur was observed leaving his residence, carrying papers in his hands at 1:00 P.M. Petitioner proceeded to go into the 1988 maroon and silver Bronco and drive away. The Upper Darby Police Department, acting in association with the CID, stopped Petitioner a few blocks away from his home. Id. at pp. 6-7.

  Detective Hughes then proceeded to walk up to the car while Petitioner was still seated in the driver's seat. Detective Hughes wanted to talk about the possibility of the car being a stolen car. At the time Detective Hughes reached the car, he noticed that the steering column on the vehicle was damaged in several places. He also noticed that the public VIN plate on the dashboard was scratched. He knew that these are conditions commonly seen in stolen vehicles. Hughes asked Mr. Brodeur to park his vehicle at a gas station, in order to get it out of the intersection. He then had Mr. Brodeur exit the vehicle and placed him in the back of his own unmarked vehicle. Detective Hughes left the door to the unmarked vehicle open. Id. at p. 7.

  Detective Hughes asked Mr. Brodeur for permission to search his vehicle. Petitioner voluntarily consented to the search, and after the consent form was read to him and explained, he signed it. Petitioner asked where the search was going to take place. Detective Hughes told Petitioner that the search would take place at the Delaware County garage because it was cloudy and starting to rain. At the Delaware County garage the confidential VIN was located. The confidential VIN found on the vehicle did not match the public VIN. In a normal vehicle the confidential VIN and the public VIN would match. Id. at pp. 7-8. After speaking again with PENNDOT, Detective Hughes learned that the vehicle with this confidential vehicle identification number had been stolen in Tinicum Township in February, 1994. Detective Hughes then spoke with the owner of the vehicle, a Mr. Troutman, who indicated that the car which was stolen from him was a maroon and silver 1988 Ford Bronco. After learning this information, Andre Brodeur was arrested. Id. at p. 8.

  Detective Hughes asked Petitioner for permission to search his home, however, Petitioner denied permission. Thus, on February 8, 1996, Detective Hughes prepared the affidavit for a search warrant to search Petitioner's residence. Id. at pp. 8-9.

  A search warrant (for Petitioner's residence) was executed on February 9, 1996. Items discovered in Petitioner's home included multiple public VIN plates, rivets used to put on VIN plates, rivet guns, numerous vehicle titles for automobiles (some in Petitioner's name and some in the name of others), inspection stickers, month stickers, numerous driver licenses with names other than the Petitioner's, welfare cards for other individuals, as well as a brown paper bag containing car locks. Also found in the home was a brown paper bag containing one pound of methamphetamine, a .22 caliber semi automatic weapon, and $400 in cash. Id. at p. 9.

  After being sentenced by Judge Surrick in September 20, 1996, Petitioner filed a timely notice of appeal on October 17, 1996.

  On Appeal, Petitioner presented three main issues, with several sub-parts:

I. Whether the trial court erred in denying Mr. Brodeur's motion to suppress the evidence gathered as a result of the search of Mr. Brodeur's residence where:
A. The warrant lacked a specific time frame for ascertaining when the information was received from the alleged confidential informant, when the alleged informant obtained the information he allegedly had, and if probable cause existed at the time the search warrant was issued that Mr. Brodeur was engaged in the criminal activity.
B. The affidavit in support of the search warrant affidavit contained material misrepresentations and was deliberately vague and misleading.
II. Whether the trial court in denying Mr. Brodeur's motion to suppress the evidence gathered pursuant to the stop and search of his vehicle where:
A. The stop was not supported by objective facts creating a reasonable suspicion that Mr. Brodeur was presently involved in criminal activity or creating probable cause that Mr. Brodeur was committing a violation of the Pennsylvania Motor Vehicle code.
B. The officers had sufficient time to obtain a search warrant and there were no exigent circumstances to excuse the failure of the officers in obtaining a search warrant prior to stopping Petitioner's car.
C. Mr. Brodeur's consent to search his vehicle was the fruit of an illegal stop and where [sic] the officers never informed him that they would be moving the vehicle to the Delaware County Courthouse to conduct the search.
III. Whether the trial court erred in refusing to order the Commonwealth to disclose the identity of the alleged confidential informant.
Commonwealth's Response: Exhibit "B" (June 24, 1998 Superior Court Opinion) at p. 4.

  The Pennsylvania Superior court affirmed the trial court decision on the merits on June 24, 1988. The Pennsylvania Supreme Court on February 2, 1999 denied allocatur. On August 12, 1999, Petitioner filed his first pro se petition under the State Post-Conviction Collateral Relief Act, 42 Pa. C.S.A. § 9541-9546. In the pro se petition, Mr. Brodeur raised twelve issues challenging suppression counsel's representation and one issue challenging the legality of his sentence. PCRA counsel was appointed to represent Petitioner. Counsel filed a no-merit Finley letter and a petition to withdraw. An evidentiary hearing was held on October 28, 1999 and November 30, 1999. At the beginning of the hearing on October 28, the Court advised PCRA counsel that it would hold his application to withdraw in abeyance until the PCRA hearing had concluded. Commonwealth's Response: Exhibit "C" (June 27, 2000 Common Pleas Court Opinion) at pp. 1-3.

  Petitioner testified at the PCRA hearing, as did Attorney Reilley, who represented Petitioner during the suppression hearing.

  The motion for collateral relief was denied by Order on December 22, 1999. The court found Appellant's petition to be without merit. Commonwealth's Response: Exhibit "C" (June 27, 2000 PCRA Opinion) at pp. 1-3.

  An appeal was filed on time to the Superior Court of Pennsylvania. Petitioner raised twelve ineffective assistance of counsel claims. Claims I, II, III, IV, V, VII, VIII, and X all relate to the legality of Petitioner's vehicular stop and search, and the legality of the subsequent residential search. Claim number VI, faults suppression and trial counsel for failing to impeach the credibility of Detective Hughes and Frey. Petitioner's ineffective claim number IX, charges trial counsel with "threatening" petitioner with the likelihood that both he and his wife would go to jail if Petitioner did not waive his right to a jury trial. The final two ineffectiveness claims, numbered XI and XII, assert that suppression and trial counsel failed to object to the Commonwealth's refusal to disclose the name of the person actually responsible for stealing and replating Petitioner's vehicle. Petitioner's final claim, number XIII, argued that the trial court's imposition of an indefinite term of sentence with no opportunity of parole amounts to an illegal sentence. Commonwealth's Response: Exhibit "D" (March 18, 2002 Superior Court Opinion) at pp. 1-10.

  The Superior Court affirmed the denial of PCRA relief on March 18, 2002, concluding that none of Petitioner's claims had merit. Commonwealth's Response: Exhibit "D" (March 18, 2002 Superior Court Opinion) at pp. 1-10.

  An application to the Pennsylvania Supreme Court for allocatur review was denied on November 6, 2002.

  On October 30, 2003, Petitioner signed and dated the instant § 2254 habeas. It was filed in this Court on November 5, 2003. See Habeas Petition [Docket Entry No. 1]. As the grounds for habeas relief, the Petitioner has raised the following issues:

1. An unconstitutional search and seizure, which was obtained by using a bad search warrant. Judge Surrick went out of the four corners of the affidavit for a search warrant which contained material misrepresentations, falsehoods, omissions, stale information, and suppression counsel failed to introduce any offers of proof.
2. Use of evidence obtained pursuant to an unlawful arrest. Although petitioners P.C.R.A. hearing showed suppression counsel neglected the "Totality of Circumstances" of petitioner being unlawfully arrested. In Judge Surrick's opinion, "It would have added nothing of substance to the record." However, case law both State and Federal show other results.
3. The unconstitutional failure of the prosecution to disclose favorable evidence to petitioner. Prosecution failed to disclose their knowledge of who actually committed the crime of re-plating a stolen motor vehicle that was sold to petitioner approximately two (2) years before petitioner was stopped and arrested for the crime.
4. Denial of effective assistance of counsel. Petitioner's counsel failed to investigate, raise and/or present critical facts/witnesses or offers of proof to substantiate petitioner's claims for the suppression hearing as instructed.
Petition for Habeas Corpus at pp. 9-10 and Memorandum of Law in Support of Habeas Petition at pp. 1-2.

  The Commonwealth has filed an answer to Mr. Brodeur's habeas petition, arguing that his claims are meritless. Petitioner filed a rebuttal to the Commonwealth's answer to the § 2254 petition for writ of habeas corpus.

  In Petitioner's rebuttal he adds to his original petition that under: Ground One: The information in the Affidavit for a Search Warrant was not only from an investigation eleven years old and but the words `stolen vehicles' had been added. Also, C.I.'s statement says petitioner had dark hair and in fact he claims he has been almost totally gray for at least two years.


Ground Two: Petitioner avers that the courts have never acknowledged that in fact he was originally stopped by eight armed officers, removed from his vehicle and placed into an unmarked police car and held for 10 minutes before he signed a consent form.
Ground Three: Petitioner contends that the Detectives had knowledge of the person who actually committed the crime and therefore, the prosecution should have also had this information. Therefore petitioner's counsel who was aware that prosecution knows someone other than the petitioner committed the crime and did not do anything provided ineffective assistance.
Ground Four: Petitioner wrote to his counsel criticizing him for failing to properly investigate, raise or present critical facts/witnesses and offers of proof to substantiate his claims at the suppression hearing.
I. Timeliness.

  Because Mr. Brodeur's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Act (AEDPA), the amended habeas standards apply to his claims.

  One of the amended provisions, 28 U.S.C. § 2244(d), imposes a one-year statute of limitations on state prisoners who seek federal habeas relief. A habeas petition must be filed within one year from the date on which petitioner's judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1).

  In the instant case, Mr. Brodeur's state conviction became final on May 2, 1999, when the time for seeking certiorari in the United States Supreme Court expired. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) ("Therefore, a state court criminal judgment is `final' (for purposes of collateral attack) at the conclusion of review in the United States Supreme Court or when the time for seeking certiorari review expires.").

  II. Statutory tolling and waiver

  The AEDPA amendments include a tolling provision for "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." See 28 U.S.C. § 2244(d)(2).

  After Petitioner's habeas statute began running on May 2, 1999, and continued to run until August 12, 1999, when he filed a Motion for Post Conviction Collateral Relief. As of the date on which Petitioner filled his PCRA petition (August 12, 1999), 100 days of the one year habeas statutory period had expired. Petitioner's PCRA motion was properly filed and was pending though November 6, 2003, when the Pennsylvania Supreme Court declined discretionary review.

  When Petitioner's statute of limitations began to run again on November 7, 2003, there were 265 days remaining. The present habeas corpus filed on October 30, 2003, approximately eleven months after November 7, 2003, appears time barred. However, the Commonwealth has argued that Mr. Brodeur's petition is "apparently timely filed." The Third Circuit has ruled that that the AEDPA limitation period can, in fact, be waived. An affirmative defense which is not timely raised will be waived, and the court should not dismiss a petition on the ground that is time barred by 28 U.S.C. § 2244(d). Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002). Therefore, this court cannot dismiss the petition on the ground that it's time-barred by 28 U.S.C. § 2244(d).

  III. Exhaustion and Procedural Default.

  A. Standards.

  The exhaustion rule, codified in 28 U.S.C. § 2254, requires a federal court to postpone habeas corpus jurisdiction, absent exceptional circumstances, until "the applicant has exhausted the remedies available in the courts of the State."

  To comply with the exhaustion requirement, a habeas petitioner must demonstrate that each and every claim which makes up the basis of his federal habeas petition has been "fairly presented" to the State courts. Castille v. Peoples, 489 U.S. 346, 351 (1989); Picard v. Connor, 404 U.S. 270, 275 (1971). Without any exceptional circumstances coming into play, the petitioner must first present all of his constitutional claims in the state system, by bringing them in the highest state court, before seeking habeas relief in the federal court. See Picard v. Connor, 404 U.S. at p. 275 (1971).

  A habeas claim which is unexhausted becomes procedurally defaulted when the petitioner has no other state remedies to turn to, in order to pursue the issue. See Wenger v. Frank, 265 F.3d 218, 223-24 (3d Cir. 2001).

  Procedural default can also occur when the issue has been properly set forth in the state system; however it has not been addressed on its merits because of an independent and adequate state procedural rule. See Sistrunk v. Vaughn, 96 F.3d 666, 673 (1996).

  A procedural default may be excused if the habeas petitioner can show "cause" for the default and "prejudice attributable thereto," or show by not examining the habeas claim it may result in a "fundamental miscarriage of justice." Wenger, 266 F.3d at p. 244 (3d Cir 2001).

  B. Petitioner's Claim that the Prosecution Unconstitutionally Failed to Disclose Favorable Evidence is Procedurally Defaulted.

  In his third claim, Petitioner asserts that the prosecution has "unconstitutionally" failed to disclose favorable evidence to him. He claims the prosecution knows and did not give him the name of the individual who actually committed the crime of re-plating the stolen vehicle that was sold to petitioner two years before he was stopped. Petitioner argues: "[. . .] the Detective had knowledge of the person and/or persons who actually committed the crime. Therefore, the Prosecution should have been aware of it also. And Petitioner's Counsel who is aware that the Prosecution knows someone other than Petitioner committed the crime and does nothing is surely an ineffective counsel." Petitioner's Rebuttal at p. 4. For the first time, Petitioner cites to Brady v. Maryland, 373 U.S. 83, 83 S. Ct 1194 (1194). Petitioner has never raised a Brady issue in the state court system. He no longer has a state remedy available to raise this issue. This claim is therefore procedurally defaulted and is therefore, not subject to federal habeas review.

  To the extent that Petitioner intends to asset, in his third habeas claim, ineffective assistance for failing to object to the prosecution's failure to disclose information, this issue was properly exhausted on PCRA appeal. Commonwealth's Response: Exhibit "C" (June 27, 200 Superior Court Opinion) at p. 9. Thus, I will address this ineffective counsel claim on the merits.

  C. Petitioners' Three Remaining Habeas Claims Have Been Properly Exhausted.

  The three remaining claims set forth by the petitioner have all been properly exhausted in the state court system, and rejected by the Superior Court on PCRA review. Because these claims have been properly exhausted, I will address the merits of each.

  IV. Merits.

  A. Habeas Standards of Review.

  AEDPA precludes habeas relief on "any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —


(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 facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) (Supp. 1998).
  In interpreting the above language, the Third Circuit has discussed the appropriate degree of deference, which AEDPA requires a federal habeas court to accord a state court's construction of federal constitutional issues and interpretation of Supreme Court precedent. See Matteo v. Superintendent, SCI Alibion, 171 F.3d 877 (3d Cir.), cert. denied, 120 S.Ct. 73 (1999). The Third Circuit has held that under 28 U.S.C. § 2254(d)(1), a two step inquiry is warranted. The majority agreed that:


(1) The proper initial inquiry for the habeas court is whether the state court decision was `contrary to' Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only when the petitioner shows that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court. Id. at 891.
(2) In the absence of such a showing, the habeas court must then ask whether the state court decision represents an `unreasonable application of' Supreme Court precedent. This inquiry is an objective one, namely, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. Id.
Matteo, 171 F.3d at 891 (3d Cir. 1999).

  The United States Supreme Court has set forth the scope of habeas review after AEDPA. See Williams v. Taylor, 120 S.Ct. 1495, 529 U.S. 362 (2000). According to the Williams majority:

We the [Supreme Court of Justices] all agree that state-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated. In sum, the [AEDPA] statute directs federal courts to attend every state-court judgment with utmost care, but it does not require them to defer to the opinion of every reasonable state-court judge on the content of federal law. If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody — or, as in this case, his sentence of deathviolates the Constitution, that independent judgment should prevail.
Williams, 120 S.Ct. at 1511 (2000).

  Under the AEDPA, a federal reviewing court must presume that the factual findings of state trial and appellate court are, in fact, correct. See Stevens v. Delaware Correctional Center, et al., 295 F.3d 361, 368 (3d Cir. 2002). A presumption of correctness may only be overcome on the basis of clear and convincing evidence to the contrary. Id. at 368.

  B. Petitioner's Two Fourth Amendment Claims were Fully Litigated in State Court and Are Not Subject to Federal Habeas Review.

  In Petitioner's first habeas claim, he argues that Judge Surrick went out of the four corners of the affidavit in order to issue a search warrant for his home, because it contained falsehoods, omissions, stale information, and that his suppression counsel failed to introduce any offers of proof. In his second habeas claim, Petitioner argues that the evidence used against him was the product of an illegal search of his vehicle, for which Petitioner under the totality of the circumstances could not give valid consent.

  According to Petitioner, the legality of his arrest has never been fully litigated because "[t]he Lower court and the Superior Court has [sic] never acknowledged that: Petitioner was stopped by approximately eight (8) armed Police Officers; removed from Petitioner's vehicle and placed in back seat of Detective Hughes' police vehicle. Where after ten (10) minutes while still in the back seat of Detective Hughes' police vehicle, Petitioner signed a consent form. To substantiate that these events did happen, See: Suppression Hearing Transcript of July 29, 1996, marked Exhibit B)". Petitioner's Rebuttal at pp. 2-3.

  In Stone v. Powell, the Supreme Court held that prisoners who had been afforded a full and fair opportunity in state court to invoke the exclusionary rule may not raise their Fourth amendment claims on federal habeas review, See Kimmelman v. Morrison, 477 U.S. 365, 376 (1986). However, the Stone restriction on habeas review of Fourth Amendment claims does not extend to any claims involving the Sixth Amendment ineffective assistance of counsel which are based on incompetent representation with regard to a Fourth Amendment issue. Id. at pp. 383-384 (1986).

  In the instant case, the issues of the constitutionality of Petitioner's arrest, the search of his vehicle and the search of his home were fully litigated at the suppression hearing which was held before Judge Surrick on July 29-30, 1996. The Affidavit of Probable Cause to search Petitioners home, the stop of petitioner's vehicle, the valid consent to search, and the arrest that followed were all upheld as constitutional under federal law. Having had the opportunity to fully litigate his Fourth Amendment issues before the suppression court, Petitioner is not entitled to federal habeas review of his first two claims.

  C. The Superior Court's Rejection of Petitioner's Two Ineffective Assistance of Counsel Claims was Objectively Reasonable.

  In order for petitioner to establish ineffective assistance of counsel under the federal Strickland standard, he must show: [1] that counsel's performance was "deficient" and [2] that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

  To demonstrate that counsel's performance was deficient, the petitioner must show that counsel's representation fell below an objective standard of reasonableness based on the facts of the particular case, viewed as of the time of counsel's conduct. Senk v. Zimmerman, 866 F.2d 611, 615 (3d Cir. 1989).

  To establish prejudice, the petitioner must demonstrate a reasonable probability that, but for unprofessional errors, the result would have been different. This standard is less strict than the "more likely than not" standard. Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 358 (quoting, Strickland, 466 U.S. at 694).

  Because the United States Supreme Court has identified a rule which governs Petitioner's ineffective assistance of counsel claims, the Strickland standard "shapes the contours of an appropriate analysis of a claim of constitutional error to merit review of a state court's decision under section § 2254(d)(1)'s `contrary to' prong." Matteo, 171 F.3d at 866 (3d Cir. 1999).

  In the instant case, Petitioner avers that his counsel was ineffective in: 1) failing to object to the prosecution's failure to disclose information (habeas claim three) and 2) failing to investigate, raise, and present critical fact witnesses and offers of proof to substantiate petitioner's claims at the suppression hearing as instructed (habeas claim four). See Habeas Petition at p. 10.

  On PCRA appeal, the Superior Court analyzed both of Petitioner's ineffective assistance of counsel claims under the Pennsylvania standard. Under state law, in order to prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying claim has arguable merit; (2) that counsel's conduct was without a reasonable basis designed to effectuate his/her client's best interest; and (3) that counsel's ineffectiveness prejudiced the petitioner. See Commonwealth's Response: Exhibit "D" (March 18, 2002 Superior Court Opinion) at pp. 6-7 (citing Commonwealth v. Robinson, 787 A.2d 152 (Pa. Super 2001)).

  The Third Circuit has determined that the Pennsylvania standard of ineffective assistance of counsel does not contradict the federal Strickland standard. See Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000).

  The PCRA Court rejected Petitioner's claim that counsel was ineffective for failing to investigate and present evidence in support of his suppression claims, concluding that Petitioner failed to establish that counsel's performance with regard to Petitioner's suppression issues was deficient. The Superior Court found that where the initial stop of Petitioner was legal, the search of his vehicle was legal and the search of his residence was legal, counsel could not be deemed ineffective for failing to pursue meritless suppression arguments. Id. at pp. 7-8.

  The Superior Court's determination that counsel's performance was not deficient in failing to pursue meritless suppression issues is not an unreasonable application of clearly established federal law. There is evidence of record to support the Superior Court's finding (on direct appeal) that initial stop of Petitioner, and the search of his car and home were legal. See Commonwealth's Response: Exhibit "B" (June 24, 1988 Superior Court Opinion) at pp. 6-11.

  Under the Strickland standard, counsel cannot be deemed deficient for failing to raise a baseless claim. See e.g. McNeal v. United States, CA No. 99-3229, 1999 WL 1065216 at *3 (E.D. Pa. November 23, 1999) (counsel's decision not to raise a meritless issue was objectively reasonable under Strickland).

  With regard to Petitioner's claim that counsel was ineffective for failing to object to the prosecution's failure to disclose "the person and/or persons who actually committed the crime", the Superior Court found, based upon Petitioner's testimony at the October 28, 1999 PCRA hearing, that Petitioner "always knew the identity of the man purportedly responsible for the replating at issue — one Mr. George Cathers — but had no knowledge of Mr. Cathers' whereabouts at the time." See Commonwealth's Response: Exhibit "D" (March 18, 2002 Superior Court Opinion) at pp. 9-10. Because Petitioner already knew the information, the Superior Court determined that his counsel was not ineffective for failing to object to the Commonwealth's failure to disclose this information. Id.

  The Superior Court's factual finding that Petitioner knew the identity of the individual purportedly responsible for replating his vehicle is supported by the state court records. See N.T. 10/20/1999 at pp. 14-17 (Petitioner's testimony that he originally bought his vehicle from George Cathers and that "nobody" knew where Cathers was because he was running from the police who were looking for Cathers in connection with replating and selling stolen vehicles). Absent clear and convincing evidence to the contrary, this finding is presumptively correct and must be accepted by this Court. See 28 U.S.C. § 2254 (e)(1).

  The Superior Court's determination that Petitioner did not establish ineffective assistance of counsel for failing to raise suppression issues and for failing to object to the Commonwealth's failure to disclose information is neither contrary to, nor an unreasonable application of, Strickland. This court must, therefore, defer to the state court's decision on these claims.


  Consistent with the above discussion, it is recommended that Petitioner's habeas petition, filed under 28 U.S.C. § 2254, be DENIED AND DISMISSED WITHOUT AN EVIDENTIARY HEARING. It is further recommended a finding be made that there is no probable cause to issue a certificate of appealability.


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