United States District Court, M.D. Pennsylvania
November 17, 2005.
DANIEL DEAN GILLAM, Petitioner,
HARRY E. WILSON, Respondent.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER
Daniel Dean Gillam, an inmate presently confined at the State
Correctional Institution, Cresson, Pennsylvania (SCI-Cresson),
filed this pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Named as Respondent is SCI-Cresson
Superintendent Harry E. Wilson. Service of the petition was
Petitioner states that he pled guilty to charges of third
degree murder and aggravated assault in the Juniata County Court
of Common Pleas.*fn1 He was sentenced to a twenty (20) to
forty (40) year term of imprisonment on June 16, 1995. His
conviction and sentence were affirmed following a direct appeal
to the Pennsylvania Superior Court. See Commonwealth v.
Gillam, 685 A.2d 208 (Pa. Super 1996) (Table).
On January 15, 1997, Gillam initiated a pro se action
pursuant to Pennsylvania's Post Conviction Relief Act (PCRA).
See Commonwealth v. Gillam, 2003 WL 2371781 *3 (Pa.Super.
Oct 23, 2003) (Brief for Appellant). After a lengthy delay
associated with Petitioner's requests for appointment of counsel
to proceed in forma pauperis, the trial court denied the
PCRA petition on April 24, 2003. An appeal to the Superior Court
was denied by Order dated September 3, 2004. See Commonwealth
v. Gillam, 863 A.2d 1222 (Pa. Super 2004) (Table). A petition
for allowance of appeal to the Pennsylvania Supreme Court was
denied on January 26, 2005. See Commonwealth v. Gillam,
868 A.2d 1198 (Pa. 2005) (Table). On December 20, 2004, prior to the
Pennsylvania Supreme Court's issuance of its PCRA decision,
Gillam filed his present § 2254 action with this Court.
Petitioner argues that he is entitled to federal habeas corpus
relief on the grounds that his conviction was obtained via an
involuntary and unlawfully induced guilty plea which was due to
ineffective assistance of counsel.*fn2 His petition also
contends that the trial court erred by accepting his guilty plea.
The Respondent has submitted a motion (Doc. 15) seeking dismissal
of the petition on the basis that Gillam's claims are procedurally defaulted.*fn3
Respondent states that Petitioner's direct appeal challenged
"only the discretionary aspects of his sentence" and was not
reviewed by the Pennsylvania Supreme Court. Doc. 16, p. 2. The
Respondent adds that Gillam's Superior Court appeal of his PCRA
action asserted only that the trial court erred in accepting his
guilty plea. According to the Respondent, the Superior Court did
not address the merits of said claim rather it concluded that
Gillam's argument was waived because he failed to raise the
argument on direct appeal. Consequently, Respondent concludes
that Petitioner's present action should be dismissed for failure
to exhaust state remedies.
Gillam argues that each of his present claims "factor's [sic]
off from a Constitutional Violation of Petitioner's Rights, that
of being innocence of the Criminal Offenses of either First or
Third Degree Murder, and as to the Ineffectiveness of Counsel,
which is Sixth Amendment Violations [sic]." Doc. 23, p. 5.
Petitioner adds that he instructed his PCRA counsel to withdraw
his petition for allowance of appeal to the Pennsylvania Supreme
Court, so that he could initiate his pending § 2254 action. Id.
28 U.S.C. § 2254(b)(1) provides that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it
appears that . . . the applicant has exhausted the remedies
available in the courts of the State." To exhaust one's claims,
they may be presented to the state courts directly on
appeal from the judgment of conviction and sentence or through
a collateral proceeding, such as a PCRA petition. It is not
necessary, however, to present federal claims to state courts
both on direct appeal and in a PCRA proceeding. Evans,
959 F.2d at 1230-31; Swanger v. Zimmerman, 750 F.2d 291, 295 (3d
Under 28 U.S.C. § 2254(c), such a petitioner "shall not be
deemed to have exhausted the remedies available in the courts of
the State . . . if he has the right under the law of the State to
raise, by any available procedure, the question presented." In
O'Sullivan v. Boerckel, 526 U.S. 838 (1999), the Supreme Court
held that while exhaustion does not demand that state prisoners
"invoke extraordinary remedies," "state prisoners must give the
state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established
appellate review process." Id. at 844-45.
Respondent contends that none of Petitioner's present habeas
claims were asserted in his direct appeal. According to the
Respondent, Gillam's PCRA appeal included only his present claim
that the trial court erred in accepting the guilty plea. However,
the Respondent contradictorily admits that the Superior Court also addressed Petitioner's "bare assertion that his
counsel ineffectively advised him to plead guilty." Doc. 16, p.
Gillam acknowledges that in his direct appeal "trial counsel
challenged the discretionary aspects of the sentence." Doc. 23,
p. 3. Petitioner further admits that his PCRA appeal raised the
single claim that the trial court erred in accepting his guilty
plea because Gillam's plea colloquy testimony maintained that the
shooting was accidental. See id. Based on his own admissions,
it is apparent that Petitioner's present claims that trial
counsel improperly induced him into entering a guilty plea and
provided ineffective assistance, are unexhausted.
It is undisputed that none of Gillam's federal habeas claims
were asserted in his direct appeal. Petitioner's PCRA action
consisted of a claim that the trial court erred by accepting the
guilty plea because Gillam's plea colloquy testimony asserted a
defense that the shooting was accidental. The Superior Court in
denying PCRA relief, noted that Petitioner did not file a motion
to withdraw his guilty plea and did not raise his claim of trial
court error on direct appeal. See Doc. 13, Exhibit E, p. 5.
Consequently, the Superior Court concluded that the claim of
trial court error had been waived and was subject to dismissal on
that basis. See id. The Superior Court elaborated that
Petitioner's guilty plea was valid. The Superior Court's decision
also noted that Gillam made a bare assertion that trial counsel ineffectively advised him to enter a
guilty plea. However, said argument was not "adequately
developed" and thus subject to dismissal. Id.
Based on this Court's review of the Superior Court's PCRA
decision, it is clear that said court concluded that Gillam's
claim of trial court error for accepting his guilty plea had been
waived and was subject to dismissal on that basis. However, the
Superior Court also addressed the merits of Petitioner's trial
error argument. In light of that undertaking by the Superior
Court, this Court finds that dismissal of said claim on the
grounds of non-exhaustion is inappropriate. See Duncan v.
Henry, 513 U.S. 364, 365-66 (1995) (exhaustion is satisfied if
the substance of the petitioner's claims have been addressed by
the state courts).*fn4
It is clear that the Petitioner's present claims that his
defense counsel failed to file a motion to suppress illegally
obtained evidence, assert a diminished capacity defense, and
present favorable forensic evidence were not included in either
Gillam's direct appeal or PCRA action. Consequently, those claims
are clearly unexhausted. The Petitioner's present action also
asserts that he was induced to enter a guilty plea due to counsel's above described omissions,*fn5 this claim
substantially differs from the bare assertion of ineffective
assistance considered by the Superior Court and is likewise
Exceptions to the exhaustion requirement are made when: (1) the
state corrective process is so deficient as to render any effort
to obtain relief futile, 28 U.S.C. § 2254(b); (2) acts of state
officials have, in effect, made state remedies unavailable to the
petitioner, Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir.
1987); or (3) "inordinate delay" in state proceedings has
rendered state remedies ineffective. Story v. Kindt,
26 F.3d 402, 405 (3d Cir. 1994); Schandelmeier v. Cunningham,
819 F.2d 52, 55 (3d Cir. 1986).
Gillam has not shown that any of the three recognized
exceptions to the exhaustion requirement exists in his case. On
the contrary, the undisputed facts establish that the Petitioner
has had adequate opportunities to assert his present ineffective
assistance related claims, specifically, his direct appeal and
subsequent PCRA petition. More importantly, a review of the
undisputed documents relating to Petitioner's direct appeal and
PCRA action which have been submitted for consideration by the
parties establishes that Gillam's present ineffective assistance
claims were not addressed on their merits by the Pennsylvania
state appellate courts.
In light of the amount of time which has elapsed since Gillam's conviction became final, it does not appear that he has
any remaining available state court remedies. See Lines v.
Larkins, 208 F.3d 153, 163 (3d Cir. 2000). Any additional remedy
which may have been available to Gillam under the PCRA is most
likely time barred. See Pa. C.S.A. § 9545.
When state court review of an unexhausted claim is foreclosed
under state law, exhaustion is excused on the ground of futility.
See, e.g., Lines 208 F.3d at 160; Toulson v. Beyer,
987 F.2d 984, 987-88 (3d Cir. 1993). Such a claim is deemed to be
procedurally defaulted, not unexhausted, and may be entertained
in a federal habeas petition only if there is a basis for
excusing the procedural default. Procedural default may be
excused if a petitioner can show "cause" and "prejudice" or that
a "fundamental miscarriage of justice" would result.*fn6
Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Gillam has failed to establish cause for the procedural default
of his ineffective assistance related arguments and resulting
prejudice or that failure to entertain those claims will result
in a fundamental miscarriage of justice. Consequently, Gillam's
claims that trial counsel unlawfully induced a guilty plea and
failed to: file a motion to suppress evidence, assert a
diminished capacity defense, present favorable forensic evidence
will be dismissed. See Lines, 208 F.3d at 16.
With respect to the Petitioner's remaining exhausted claim,
since this petition contains unexhausted claims it is a mixed
petition which is subject to dismissal without prejudice. See
Rose v. Lundy, 455 U.S. 509, 522 (1982); Dreher v. Pinchak,
61 Fed. Appx. 800, 806 (3d Cir. 2003). However, since the
limitations period for submission of a federal habeas corpus
petition could expire before Gillam is able to file another
habeas petition, the Court will grant Petitioner twenty (20) days
from the date of this Order in which to file an amended petition
containing only his exhausted claim of trial court error. See
Thomas v. Carroll, 2004 WL 758344 *7 (D. Del. Jan. 30, 2004).
If Gillam fails to timely file an amended petition, this matter
will be dismissed without prejudice. An appropriate Order will
AND NOW, THEREFORE, THIS 17th DAY OF NOVEMBER, 2005, IT IS
HEREBY ORDERED THAT:
1. Respondent's motion (Doc. 15) seeking dismissal of
the petition is granted in part.
2. Petitioner's procedurally defaulted claims of
ineffective assistance of counsel are dismissed
3. Within twenty (20) days of the date of this Order,
Petitioner may file an amended petition regarding his
sole exhausted claim that the trial court erred in accepting his guilty
4. Failure of Petitioner to timely submit an amended
petition will result in dismissal of this action
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