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
REPORT AND RECOMMMENDATION
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.
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
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
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
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
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.
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
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,
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
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.
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
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
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
In order for petitioner to establish ineffective assistance of
counsel under the federal Strickland standard, he must show: 
that counsel's performance was "deficient" and  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
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
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