The opinion of the court was delivered by: Richard P. Conaboy United States District Judge
(Magistrate Judge Blewitt)
Here we consider Magistrate Judge Thomas M. Blewitt's Report and Recommendation (Doc. 24) concerning Petitioner Andre C. Knight's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner filed this action on October 2, 2006, challenging his 2002 robbery conviction in the Dauphin County Court of Common Pleas. (Doc. 1.) After reviewing Petitioner's asserted grounds for relief, the Magistrate Judge recommends dismissal of Petitioner's action. (Doc. 24 at 29.) For the reasons discussed below, we adopt the Magistrate Judge's Report and Recommendation as modified and dismiss the instant Petition.
The original incident underlying the current action is a robbery at a Radio Shack store in Harrisburg, Pennsylvania, which occurred on March 27, 2001. (Docs. 17-4, 17-5, Dauphin County Court of Common Pleas 1925 Opinion in Support of Order at 1.) An anonymous tip received by Dauphin County authorities provided Petitioner's name as a suspect. (Docs. 17-4, 17-5, Dauphin County Court of Common Pleas 1925 Opinion in Support of Order at 1.) An employee of the store working at the time of the robbery, Diane Cotton, identified Petitioner in a prepared photo array. (Id.) The investigating officer, Detective James Heilig of the Susquehanna Police Department, obtained an arrest warrant and also received another anonymous tip that Petitioner intended to leave the area. (Id. at 1-2.)
The criminal complaint in this matter was filed on March 30, 2001, charging Petitioner with robbery and firearms violations. (Docs. 17-4, 17-5, Dauphin County Court of Common Pleas 1925 Opinion in Support of Order at 5; Doc. 17-4, Appellant's Brief in Support of Matters to be Argued on Appeal Pursuant to 42 Pa. C.S. § 1925(b) at 2.)
Petitioner was arrested on April 4, 2001, in Alabaster, Alabama, and was detained based on a fugitive warrant relating to the Pennsylvania charges and unrelated Alabama charges. (Docs. 17-4, 17-5, Dauphin County Court of Common Pleas 1925 Opinion in Support of Order at 6.) On June 18 and 19, 2001, he was sentenced on the Alabama charges to serve sixty (60) days in the Shelby County Prison in Alabama. (Doc. 17-4, Appellant's Brief in Support of Matters to be Argued on Appeal Pursuant to 42 Pa. C.S. § 1925(b) at 2.)
Also on June 18, 2001, Detective Sergeant Garver of Dauphin County was notified by Alabama officials that Petitioner was available for his Dauphin County charges. (Docs. 17-4, 17-5, Dauphin County Court of Common Pleas 1925 Opinion in Support of Order at 6.) The same day the Commonwealth made arrangements to have a prisoner transportation company, TransCor, transport Petitioner from Alabama to Pennsylvania. (Id.)
Although Petitioner maintains the Commonwealth is incorrect on this point (Doc. 30 at 13), the Commonwealth asserted that on June 26, 2001, Alabama officials indicated Petitioner had not waived extradition. (Docs. 17-4, 17-5, Dauphin County Court of Common Pleas 1925 Opinion in Support of Order at 6.) Dauphin County officials then sought a Governor's warrant which it received on July 10, 2001. (Id.) The same day Commonwealth officials forwarded the necessary paperwork to the Alabama Extradition Coordinator, Office of the Governor, Montgomery, Alabama. (Doc. 17-4, Appellant's Brief in Support of Matters to be Argued on Appeal Pursuant to 42 Pa. C.S. § 1925(b) at 3.) On July 26, 2001, a deputy in the Shelby County Sheriff's office advised Detective Sergeant Garver of Dauphin County that the Governor's Warrant had been served on Petitioner, there were no local holds on him and he was available to be picked up. (Id.) On July 27, 2001, for the second time the Commonwealth made arrangements with TransCor to return Petitioner to Pennsylvania. (Docs. 17-4, 17-5, Dauphin County Court of Common Pleas 1925 Opinion in Support of Order at 6.) Petitioner was picked up by TransCor on August 8, 2001, and placed in the Dauphin County Prison on August 15, 2001. (Id.)
After his return to Pennsylvania, Petitioner requested a continuance of his preliminary hearing and two continuances of his trial - delays which totaled 77 days. (Docs. 17-4, 17-5, Dauphin County Court of Common Pleas 1925 Opinion in Support of Order at 6.)
On September 11, 2002, in the Dauphin County Court of Common Pleas a jury found Petitioner guilty of robbery.*fn1 On October 17, 2002, Petitioner was given an aggregate sentence of ten (10) to twenty (20) years.
Petitioner filed a direct appeal with the Superior Court of Pennsylvania. Petitioner raised the following issues in his appeal: 1) the trial court erred in denying Petitioner's Motion to Dismiss pursuant to the Interstate Agreement on Detainers ("IAD") in that he should have been and was not tried within 120 days; 2) the trial court erred in denying Petitioner's Motion to Dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600 in that more than 365 days elapsed between the filing of the criminal complaint and his trial; and 3) the trial court erred in denying Petitioner's motion to suppress identification in that the identification from a photo array was tainted and unduly suggestive "due to its being conducted in front of two people" and also because the description of the perpetrator was vague. (Doc. 17-4 Ex. C Appellant's Statement of Matters Complained of on Appeal Pursuant to 42 Pa. C.S. § 1925(b).) The Superior Court affirmed Petitioner's conviction on February 4, 2004. On February 19, 2004, and again on March 2, 2004, Petitioner filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court denied the petitions on June 3, 2004, and September 19, 2004.
On October 14, 2004, Petitioner filed, pro se, a Petition for Post Conviction Relief ("PCRA") with the Dauphin County Court of Common Pleas. Counsel was appointed to represent Petitioner in his PCRA petition. On November 12, 2004, counsel filed a Petition to Withdraw as Counsel based on the lack of merit to the PCRA petition. On November 24, 2004, Petitioner filed, pro se, a document opposing counsel's "No Merit" letter. On December 9, 2004, Petitioner filed a pro se "Amended Petition under Post Conviction Hearing Act."
Petitioner raised the following issues in his original and amended PCRA petitions: 1) the prosecution unconstitutionally withheld evidence regarding identification relating to an undisclosed first photo array (Doc. 17-6 Ex. G. Petition Under Post Conviction Relief Act); 2) he was deprived of a fair trial based on the trial judge's interjection of personal remarks in his jury charge (id.); 3) he was denied state and federal due process rights relating to Sergeant Garver's testimony at the Rule 600 hearing (Doc. 17-6 Ex. K Amended Petition Under Post Conviction Hearing Act); and 4) denial of effective assistance of counsel on numerous issues, including those related to his IAD, Rule 600, photo array and jury charge claims (Doc. 17-6 Ex. G. Petition Under Post Conviction Relief Act; Doc. 17-6 Ex. K Amended Petition Under Post Conviction Hearing Act).
On April 14, 2005, the PCRA Court directed appointed counsel to review the issues raised by Petitioner in his amended PCRA Petition, and to file an amended "no merit" letter or otherwise advise the court of continued representation. Appointed counsel filed a supplemental motion to withdraw on May 18, 2005, and Petitioner filed a pro se "Supplemental Defendant's Opposition Answer in Response to Court-Appointed Counsel's 'No Merit' Letter" on June 9, 2005. The PCRA Court issued an Opinion and Order on October 13, 2005, granting counsel's Petition to Withdraw and giving notice of the intent to dismiss the PCRA Petition. Petitioner filed pro se "Defendant's Exceptions to Notice of Intent to Dismiss the PCRA" on November 7, 2005. On January 24, 2006, the PCRA Court dismissed Petitioner's PCRA petition.
Petitioner appealed the PCRA Court's denial to the Superior Court of Pennsylvania. On September 12, 2006, the Superior Court affirmed the dismissal of the PCRA petition. Petitioner did not file a petition for allowance of appeal to the Supreme Court of Pennsylvania.
Petitioner timely filed the current habeas petition pursuant to 28 U.S.C. § 2254 on October 2, 2006. He sets out five grounds for relief: 1) violation of the Interstate Agreement on Detainers ("IAD"); 2) his conviction was obtained by unconstitutional use of perjured hearsay testimony to deny equal protection of the speedy trial rule pursuant to Pennsylvania Rule of Criminal Procedure 600; 3) his conviction was obtained by the unconstitutional failure of the prosecution to disclose to the defense evidence favorable to the defendant for identification; 4) his conviction was obtained by a violation of trial by jury when the trial judge injected his opinion of the evidence during the jury charge; and 5) denial of effective assistance of counsel. (Doc. 1.)
The Magistrate Judge issued his Report and Recommendation on August 14, 2007. (Doc. 24.) Magistrate Judge Blewitt concludes that Grounds Two, Three and Four have been procedurally defaulted in that Grounds Two and Three were previously litigated and Ground Four was waived. (Doc. 24 at 9-11.) He further concludes that Grounds Two and Three substantively lack merit. (Doc. 24 at 15, 19.) The Magistrate further concludes Grounds One and Five should be dismissed on the merits. (Id. at 13, 29.)
On October 1, 2007, Petitioner filed objections to the Report and Recommendation. (Doc. 30.) Petitioner filed supplemental objections in a document dated October 7, 2007. (Doc. 31.) Because Petitioner had filed a motion for extension of time to file objections (Doc. 28) and the Court granted the motion, allowing Petitioner until October 9, 2007, to file objections (Doc. 29), we will consider these filings together. Petitioner basically objects to all of the Magistrate Judge's conclusions regarding both the procedural and substantive aspects of his claims. We will discuss each in turn.
A. Report and Recommendation Standard of Review
When a Petitioner files objections to a magistrate judge's Report and Recommendation, the district judge makes a de novo review of those portions of the report or specified proposed findings or recommendations to which objection is made. See Cippolone v. Liggett Group, Inc., 822 F.2d 335, 340 (3d Cir. 1987), cert. denied, 484 U.S. 976 (1987). Therefore, we will review the issues raised in Petitioner's objections de novo. Concerning matters to which Petitioner has not objected, we review the record for "clear error" prior to accepting the magistrate judge's recommendation. See Thomas v. Arn, 474 U.S. 150-53 (1985); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998).
B. 28 U.S.C. § 2254 Habeas Standard
As noted by our Third Circuit Court of Appeals, the Supreme Court has often said habeas corpus is an "'extraordinary remedy' reserved for defendants who were 'grievously wronged' by the criminal proceedings." Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)). The reasons for restraint exercised by federal courts in reviewing and granting habeas relief are many, including the considerations of comity and federalism. "The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power and their good-faith attempts to honor constitutional law." Engle v. Isaac, 456 U.S. 107, 128 (1982). Also, states have a recognized interest in the finality of convictions that have survived direct review within the state court system. Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).
A district court may entertain an application for a writ of habeas corpus filed by a person in state custody "only on the ground that he is in custody in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a).
A one year limitation period applies to a § 2254 petition. 28 U.S.C. § 2244(d)(1). The limitation period runs from the latest of one of four predicate occurrences, most commonly the date on which the judgment became final by the conclusion of direct review or the expiration of the time for filing such review. 28 U.S.C. § 2244(d)(1)(A).
Here, the timeliness of Petitioner's action is not contested. Petitioner's habeas petition raises the questions of whether his claims are procedurally barred, whether the Pennsylvania courts properly adjudicated the claims raised there, and whether there has been a violation of constitutional rights or federal law in the actions complained of which took place before, during and after Petitioner's trial.
Absent special circumstances, the petition "shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the state." 28 U.S.C. § 2254(b). If an applicant has the right to raise the questions presented under any available state procedure, he shall not be deemed to have exhausted the remedies available. 28 U.S.C. § 2254(c).
"A claim is exhausted if it has been "fairly presented" to the state courts." Nara v. Frank, 488 F.3d 187, 197 (3d Cir. 2007) (citations omitted). Nara explained what it means for a claim to be "fairly presented" in state court.
A petitioner has fairly presented his claim if he presented the same factual and legal basis for the claim to the state courts. See Duncan v. Henry, 513 U.S. 364, 366, 115 S. Ct. 887, 130 L.Ed. 2d 865 (1995) (per curia). A petition can "fairly present" his claim through: (a) reliance on pertinent federal cases; (b) reliance on state cases employing constitutional analysis in like fact situations; (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). Even if a state court refuses to consider the claim on procedural grounds, it is still exhausted as long as the state court had the opportunity to address it. Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989); Pursell v. Horn, 187 F. Supp. 2d 260, 288 (W.D. Pa. 2002) (Smith, J).
Nara, 488 F.3d at 197-98. Nara also noted the United States Supreme Court's holding in Baldwin v. Reese, 541 U.S. 27 (2004), where the Court concluded that ordinarily a state prisoner has not fairly presented a claim if the reviewing state court "'must look beyond a petition or a brief (or similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion, that does so.'" Nara, 488 F.3d at 198 n.17 (quoting Baldwin, 541 U.S. at 32). The burden of establishing that claims have been fairly presented falls upon the petitioner. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
Claims which have not been fairly presented to a state court may nonetheless be deemed exhausted in cases where the state courts would not consider the unexhausted claims because of a state procedural bar. Lines v. Larkins, 208 F.3d 153, 159-60 (3d Cir. 2000); Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996). "This conclusion stems from the doctrine that exhaustion is not required where pursuit of state remedies would be futile." Slutzker v. Johnson, 393 F.3d 373, 380 (3d Cir. 2004). Slutzker further explained that "[w]here exhaustion is excused because of this form of futility, the habeas doctrine of procedural default may apply to bar relief." Id.
Under the procedural default doctrine, a district court does not reach the merits of a defaulted claim unless the petitioner can show "cause and prejudice" for the default or that a "fundamental miscarriage of justice" will result if the court does not consider the merits. Slutzker, 393 F.3d at 380-81. In order to show "cause and prejudice" sufficient to satisfy a state court default, a petitioner must show the "cause" for his default and "prejudice" attributable thereto. See, e.g., Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000)(citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman v. Thompson, 501 U.S. 722, 731 (1991)). To show a "fundamental miscarriage of justice," a petitioner must establish that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 326 (1995). If a petitioner can meet the "cause and prejudice" or "fundamental miscarriage of justice" standard, his default will be excused. Id.
Similarly, where a petitioner's federal habeas claims have been fairly presented to a state court but the state court refused to consider the claims because of a violation of state procedural rules, the procedural default doctrine applies in cases where the procedural default rested on "adequate and independent state law grounds." Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004) (citations omitted). As stated by the United States Supreme Court in Coleman, [i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can 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.
Whether the procedural default doctrine applies (thereby requiring the petitioner to show cause and prejudice or a fundamental miscarriage of justice) depends on the threshold question of whether the final state court presented with a federal claim refused to decide the merits based on an established state procedural rule of law independent of the federal claim and adequate to support the refusal. Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996). The "independent" prong of the inquiry asks "if the state law ground is so 'interwoven with federal law' that it can not be said to be independent of the merits of a petitioner's federal claims." Johnson, 392 F.3d at 557 (citing Coleman, 501 U.S. at 740)). If the last state court to be presented with a claim reached its merits despite a procedural bar, it removes the prohibition against federal habeas review. Id. (citation omitted). However, if the reviewing state court reached the merits as an alternative holding, the habeas court proceeds with the procedural default analysis. Id. at 558 (citing Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)). Under the "adequate" prong, three considerations come to bear: 1) whether the state procedural rule speaks in unmistakable terms; 2) whether all state appellate courts refused to review the petitioner's claims on the merits; and 3) whether the state court's refusal is consistent with other decisions. Johnson, 392 F.3d at 558 (citing Doctor, 96 F.3d at 683-84). "Thus a state rule can be rendered inadequate if the rule is not 'strictly or regularly followed.'" Id. (quoting Hathorn v. Lovorn, 457 U.S. 255, 263 (1982).
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), enacted on April 24, 1996, revised the standard of review for cases filed pursuant to 28 U.S.C. § 2254 challenging state convictions where constitutional violations are alleged to have occurred. Dickerson v. Vaughn, 90 F.3d 87, 89 (3d Cir. 1996). If a claim presented in a 28 U.S.C. § 2254 habeas petition has been adjudicated on the merits in state court proceedings, "federal courts collaterally reviewing state proceedings [are required] to afford considerable deference to state courts' legal and factual determinations on the merits." Taylor v. Horn, ---F.3d---, No. 04- 9016, 2007 WL 2728668, at *9 (3d Cir. Sept. 20, 2007). Specifically, the statute instructs that habeas relief cannot be granted 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 the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). This is a limited review which does not consider whether the trial court could have made a different decision, or whether the reviewing court would have decided the issue differently. See, e.g., Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889-90 (3d Cir. 1999) (citations omitted).
The starting point for the analysis under AEDPA is to "first identify the applicable Supreme Court precedent and determine whether it resolves the petitioner's claim."*fn2 Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004) (citing Werts, 228 F. 3d at 196-97).
In Taylor, the Third Circuit Court of Appeals explained in detail the proper analysis of a state court decision under § 2254(d) and related provisions. 2007 WL 2728668, at *9.
A state court decision is "contrary to" Supreme Court precedent if the state court "arrives at a conclusion opposite to that reached" by the Court on a question of law, or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" that of the Court. Williams v. Taylor, 527 U.S. 362, 405, 120 S.Ct. 1495, 146. L.Ed. 2d 389 (2000). An "unreasonable application" of Supreme Court precedent occurs: (1) "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;" or (2) if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407.
If, on the other hand, "the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA and explained in Williams do not apply. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). "In such an instance, the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of the AEDPA." Id.
Whether or not the state courts reached the merits of a claim, § 2254(e)(1) requires that "a determination of a factual issue made by a State court shall be presumed to be correct" unless the petitioner rebuts "the presumption of correctness by clear and convincing evidence." See id. Although it would appear that there is "little material difference between a reasonableness determination and a presumption of correctness as they express the same fundamental principle of deference to state court findings," we have explained in fact the language of § 2254(d)(2) and § 2254 (e)(1) implies an important distinction: § 2254(d)(2)'s reasonableness determination turns on a consideration of the totality of the 'evidence presented in the state-court ...