United States District Court, E.D. Pennsylvania
July 27, 2004.
MATTHEW K. KEMP, SR., Petitioner,
JEFFERY BEARD, et al. Respondent.
The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge
REPORT AND RECOMMENDATION
Currently pending before this Court is a Petition for Writ of
Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a
petitioner incarcerated in the State Correctional Institute at
Waynesburg, Pennsylvania. For the reasons which follow, it is
recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On October 24, 1997, following a jury trial before the
Honorable Rayford Means of the Philadelphia Court of Common
Pleas, petitioner was found guilty of two counts of robbery,
criminal conspiracy and violations of the Uniform Firearms Act.
Judge Means initially imposed sentence after the verdict but
subsequently vacated the sentence. On April 23, 1998 petitioner
entered a plea of guilty to charges pending in an unrelated case.
The two cases were consolidated for sentencing. In the instant
case, Judge Means sentenced petitioner to consecutive sentences
of ten to twenty years for the two counts of robbery and five to
ten years for criminal conspiracy. Petitioner filed a timely appeal to the Pennsylvania Superior
Court. Terry McCallum, Esquire, the trial counsel appointed to
petitioner, continued to represent petitioner on direct appeal.
In the appeal, petitioner raised a claim of trial court error
based on the trial judge's questioning of a witness. On June 15,
1999, the Pennsylvania Superior Court affirmed the judgments of
sentence, finding that the opinion of Judge Means fully and
correctly disposed of the issue. Commonwealth v. Kemp,
742 A.2d 206 (Pa. Super 1999). Petitioner did not seek discretionary
review by the Pennsylvania Supreme Court.
On January 24, 2001, petitioner filed a pro se petition for
state collateral review pursuant to the Post Conviction Relief
Act ("PCRA"), 42 Pa.C.S.A § 9541, et seq, alleging unlawful
sentence and ineffective assistance of trial counsel. The court
appointed David Rudenstein, Esquire to represent petitioner. Upon
reviewing petitioners pro se filing, Mr. Rudenstein filed a
motion to withdraw from the case, because he concluded that the
PCRA petition was time-barred. Following an independent review of
the record, the PCRA court concluded that the petition was
untimely, depriving the court of jurisdiction. Accordingly, the
court dismissed the petition and granted counsel's motion to
withdraw. Petitioner appealed pro se. On August 14, 2003, the
Superior Court of Pennsylvania affirmed the PCRA court's
dismissal of the petition as untimely. Commonwealth v. Kemp,
833 A.2d 1146 (Pa. Super 2003). Subsequently, on February 24,
2004 the Pennsylvania Supreme Court denied petitioner's request
for allowance of appeal. Commonwealth v. Kemp, 844 A.2d 551
On April 9, 2004, petitioner filed the instant Petition for
Writ of Habeas Corpus. In this document, petitioner sets out the
1. The sentence imposed was unlawful because it
exceeded the maximum sentence allowed by law. 2. Trial/direct appeal counsel and post-conviction
counsel were ineffective for not pursuing the claims
raised herein this petition, before state court.
3. Trial counsel was ineffective based upon his
failure to investigate an eyewitness and his failure
to adequately prepare for trial.
Respondent now alleges that all the issues raised in this
petition are procedurally defaulted. Furthermore, respondent
alleges that petitioner fails to demonstrate that he can overcome
the default. Having considered both parties' arguments, we
proceed to a discussion of the matter before us.
II. PROCEDURAL DEFAULT
All of petitioner's claims suffer from procedural default,
which precludes our consideration of the merits.*fn1 The
procedural default barrier, in the context of habeas corpus,
precludes federal courts from reviewing a state petitioner's
habeas claims if the state court decision is based on a violation
of state procedural law that is independent of the federal
question and adequate to support the judgment. Coleman v.
Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553, reh'g
denied, 501 U.S. 1277, 112 S.Ct. 27 (1991). "In the context of
direct review of a state court judgment, the independent and
adequate state ground doctrine is jurisdictional . . . [b]ecause
this Court has no power to review a state law determination that
is sufficient to support the judgment." Id. This rule applies
regardless of whether the state law relied upon is substantive or
procedural, id., and rests in part on respect for the integrity
of procedures "employed by a coordinate jurisdiction within the
federal system." Wainwright v. Sykes, 433 U.S. 72, 88, 97 So.
Ct. 2497, 2507, reh'g denied, 434 U.S. 880, 98 S.Ct. 241
(1977). Although the issue of procedural default is best
addressed by the state courts in the first instance, a federal
court may dismiss a petition as procedurally barred if state law
would unambiguously deem it defaulted. Carter v. Vaughn,
62 F.3d 591, 595 (3d Cir. 1995).
In the case at bar, respondent contends that all of
petitioner's claims are procedurally defaulted because they were
never exhausted in state court and could not be so now. Before a
federal court may grant habeas relief to a state prisoner, the
prisoner must exhaust his remedies in state court. O'Sullivan v.
Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999).
Generally, in the case of an unexhausted petition, the federal
courts should dismiss it without prejudice, otherwise, they risk
depriving the state courts of the "opportunity to correct their
own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3d
Cir. 1993). However, "[i]f [a] petitioner failed to exhaust state
remedies and the court to which petitioner would be required to
present his claims in order to meet the exhaustion requirement
would not find the claims procedurally barred . . . there is
procedural default for the purpose of federal habeas . . ."
Coleman, 501 U.S. at 735 n. 1; McCandless v. Vaughn,
172 F.3d 255, 260 (3d Cir. 1999). The logic underlying this rule is that
"[i]n the absence of [the procedural default doctrine] in federal
habeas, habeas petitioners would be able to avoid the exhaustion
requirement by defaulting their federal claims in state court."
Coleman, 501 U.S. at 732.
None of petitioner's claims were ever fairly presented to the
state courts, thereby branding them unexhausted for purposes of
federal habeas review. Petitioner failed to raise any of the current claims alleged in the instant habeas corpus
petition on direct appeal. The only claim petitioner raised on
direct appeal was trial error based on the judge's questioning of
a witness, which is not a claim in the instant petition. Thus,
petitioner failed to exhaust the claims in the instant petition
on direct appeal.
Furthermore, such claims were not exhausted through any
post-conviction proceeding. Although petitioner filed a PCRA
petition on January 24, 2001, alleging all the claims raised in
the instant habeas petition, the PCRA court dismissed the
petition as untimely under the PCRA statute. 42 Pa. Cons. Stat. §
9545(b) (1998). This application of state court's procedural
rule constitutes an "independent and adequate" ground for barring
federal review of petitioner's habeas petition.
The Pennsylvania Supreme Court has conclusively established
that the one-year statute of limitations acts as a jurisdictional
bar and is not subject to equitable tolling. Commonwealth v.
Fahy, 737 A.2d 214, 222 (Pa. 1999). Accordingly, any current
attempt by petitioner to file a second PCRA petition raising
these claims would certainly be deemed untimely. Because
petitioner cannot now return to the Pennsylvania courts, the
multiple unexhausted claims become procedurally defaulted for
purposes of habeas review.
Findings of procedural default do not automatically foreclose
all further federal review. To survive procedural default in the
federal courts, the petitioner must either "demonstrate cause for
the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750.
While petitioner does not allege fundamental miscarriage of
justice, he does put forth two arguments for the cause and
prejudice exception. The cause and prejudice analysis embraces two separate elements. A demonstration of cause
sufficient to survive dismissal "must ordinarily turn on whether
the prisoner can show that some objective factor external to the
defense impeded counsel's efforts to comply with the state's
procedural rule." Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir.),
cert. denied, 504 U.S. 944, 112 S.Ct. 2283 (1992) (citing
Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645
(1986)); see also Jones v. Frank, 28 F. Supp.2d 956, 963
(E.D. Pa. 1998), aff'd, 202 F.3d 254 (3d Cir. 1999), cert.
denied, 529 U.S. 1088, 120 S.Ct. 1720 (2000). Once cause is
shown, petitioner bears the additional burden of proving some
resulting prejudice, i.e. that errors at trial "worked to
[petitioner's] actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions." Murray,
477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 1001,
102 S. Ct 2287 (1982)).
In the case at bar, petitioner puts forth two ineffective
assistance of counsel allegations which he contends constitute
cause sufficient to excuse his procedural default. First, he
asserts that trial/direct appeal counsel was ineffective for not
preserving his unlawful sentence claim on direct appeal. While a
claim of ineffective assistance of counsel can constitute
sufficient cause to excuse procedural default under the cause and
prejudice exception as long as it "rise[s] to the level of a
Sixth Amendment violation," Cristin v. Brennan, 281 F.3d 404,
420 (3d Cir. 2002), the ineffective assistance claim cannot
itself be procedurally defaulted. Edwards v. Carpenter,
529 U.S. 446, 451-454, 120 S.Ct. 1587, 1591-1592 (2000); Werts v.
Vaughn, 228 F.3d 178, 193 (3d Cir. 2000), cert. denied,
532 U.S. 980, 121 S.Ct. 1621 (2001). In this case, petitioner has
never raised this ineffectiveness allegation in state court,
either on direct appeal or collateral review. Accordingly, it is
itself procedurally defaulted and cannot act as cause for any
other procedural default. Petitioner's second allegation of cause, ineffective assistance
of PCRA counsel for failing to pursue the claims raised in this
petition, is not valid. A defendant has no federal constitutional
right to counsel when pursuing a state collateral attack on his
conviction. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 So.
Ct. 1990 (1987). Moreover, even if it could serve as cause, PCRA
counsel cannot be deemed ineffective since he had not yet been
appointed when petitioner failed to timely file his PCRA
Petitioner fails to meet the requirements of cause and
prejudice. Therefore, petitioner cannot satisfactorily challenge
the brand of procedural default, which precludes our review of
the merits. Consequentially, we have no alternative but to
dismiss all the claims in the instant petition for relief.
AND NOW, this day of July, 2004, IT IS RESPECTFULLY
RECOMMENDED that the Petition for Writ of Habeas Corpus be
DENIED. There is no probable cause to issue a certificate of