The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Presently before the court is an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by petitioner Dexter Omar Kirkland ("Kirkland"), an inmate currently incarcerated at the State Correctional Institution at Forest ("SCI-Forest") in Marienville, Pennsylvania. (Doc. 10.) Kirkland is challenging his state sentence in the Court of Common Pleas for York County, Pennsylvania ("trial court"). For the reasons that follow, the petition will be denied.
The events leading to the conviction and sentence of Kirkland, as recounted by the Pennsylvania Superior Court, are as follows. On October 20, 2001, at approximately 2:30 a.m., Kevin Washington was driving his vehicle through the city of York. (Doc. 23-4 at 1.) While stopped at a stop sign, Kirkland and a female companion approached Mr. Washington's vehicle, and Kirkland asked for a light for his cigarette. (Id.) Kirkland then opened the front passenger door and entered the vehicle, while the woman entered through the rear door. (Id.) Kirkland brandished an X-Acto knife, threatened to cut Mr. Washington's throat, and directed him to park the vehicle in a nearby alley. (Id.) Once in the alley, Kirkland began waiving the knife at Mr. Washington's throat, slicing Mr. Washington's arm and leg as he attempted to defend himself. (Id.) He also demanded money from Mr. Washington and threatened to kill him if he did not comply. (Id. at 1-2.) Once Mr. Washington informed Kirkland that he had no money, the woman said, "Let's go, Dex," and the two fled the scene. (Id. at 2) (citing Notes of Testimony, Trial, 5/14/02, "NT __", at 50.) Mr. Washington immediately summoned the police. (Doc. 23-4 at 2.) Sergeant Erik Kleynen of the York City Police Department spoke with Mr. Washington once he arrived at the scene. (Id.) Appearing "visibly shaken," Mr. Washington described the assailants and then was transported to the police station. (Id.) (citing NT 69.) At the station, Sergeant Kleynen used an "imaging machine," which collects photographs from a statewide database, to create a photographic array of possible suspects. (Id.) Based on the description provided by Mr. Washington, Sergeant Kleynen identified Kirkland as a possible suspect and "put [his] information" into the imaging machine. (Id.) (citing NT 69.) He also programmed the machine to select seven other individuals at random to place in the photographic array. (Doc. 23-4 at 2.) Mr. Washington examined the array and initially selected two photographs. (Id.) When Sergeant Kleynen followed up, asking Mr. Washington to identify one photograph from the eight in the array, Mr. Washington identified Kirkland as the assailant. (Id.)
Kirkland was charged with robbery, see 18 Pa. C.S.A. § 3701(a)(1)(ii), and aggravated assault, see 18 Pa. C.S.A. § 2702(a)(1). A jury trial commenced on May 14, 2002. The Commonwealth presented Mr. Washington and Sergeant Kleynen as witnesses. On direct examination, Mr. Washington made an in-court identification of Kirkland as his assailant. (Doc. 23-7 at 54-55.) Mr. Washington also stated that, when shown the photographic array at the police station, he initially could not decide between two of the eight photographs, but when asked to choose one, he identified Kirkland. (Id. at 57-58.) Kirkland's attorney, Eugene R. Campbell, Esq., did not object to the in-court identification made on the basis of the photographic array. However, on cross-examination, Attorney Campbell challenged Mr. Washington's credibility by asking him why he was unable to clearly identify his assailant in the photographic array, which was shown to him within a half hour of the incident, even though he stated that he had had a clear view of the individual in his vehicle. (Doc. 23-8 at 6-7.) The Commonwealth's other witness, Sergeant Kleynen, testified about the procedure he used to compile the photographic array for Mr. Washington. At no point did any counsel question Sergeant Kleynen about how he knew to enter Kirkland's "information" in the imaging machine for use in the array.
On May 15, 2002, the jury found Kirkland guilty of one count of robbery and one count of aggravated assault. On August 12, 2002, the trial court sentenced Kirkland to a term of imprisonment of not less than seven and one half (7 1/2 ) nor more than fifteen (15) years on both counts, to be served concurrently.
Following his sentencing, Kirkland filed a post-sentence motion in the trial court on August 21, 2002, which was denied on August 29, 2002. Kirkland subsequently filed a notice of appeal in the Pennsylvania Superior Court on September 17, 2002. In that appeal, Kirkland set forth a claim that the trial court had erred in its instructions to the jury on the aggravated assault charge. (Doc. 23-5 at 2.) The Superior Court affirmed the conviction and judgment of sentence by memorandum opinion dated August 8, 2003. Commonwealth v. Kirkland, 833 A.2d 1146 (Pa. Super. Ct. 2003) (Table). The Pennsylvania Supreme Court denied Kirkland's petition for allowance of appeal on February 25, 2004. Commonwealth v. Kirkland, 844 A.2d 552 (Pa. 2004) (Table).
On March 30, 2004, Kirkland filed a pro se petition for post-conviction collateral relief under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq., in the trial court. The trial court, now serving as the PCRA court, appointed counsel, and an amended petition was filed. The PCRA court held a hearing on September 27, 2004, and summarily denied the petition on that same day. Pursuant to a directive of the PCRA court, Kirkland filed a statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) on November 16, 2004. In a 1925(a) statement filed December 10, 2004, the PCRA court affirmed the denial of the PCRA petition. (Doc. 23-3.)
Kirkland appealed to the Superior Court and raised three issues: trial counsel was ineffective for failing to (1) challenge the use and admissibility of the photographic array at trial; (2) file a motion to suppress the victim's out-of-court identification of Kirkland; and (3) request a jury instruction on simple assault. (Doc. 23-4 at 3.) On August 9, 2005, the Superior Court affirmed the denial of post-conviction relief. Commonwealth v. Kirkland, 885 A.2d 577 (Pa. Super. Ct. 2005) (Table). On December 27, 2005, the Pennsylvania Supreme Court denied Kirkland's request for allowance of appeal. Commonwealth v. Kirkland, 891 A.2d 730 (Pa. 2005) (Table).
Kirkland filed a second or successive petition on January 30, 2006. However, as his judgment of sentence was final on May 25, 2004, he was outside the one-year statute of limitations. Thus, the PCRA court dismissed the second PCRA petition as untimely.
On July 24, 2006, Kirkland filed the instant petition for a writ of habeas corpus, as amended on September 28, 2006. (See Doc. 10.) He raises four claims relating to his conviction:*fn1 (1) the Commonwealth impermissibly withheld information that the witness initially picked another individual out of the photographic array; (2) the trial court erred in permitting the victim to make an in-court identification of Kirkland based on an unreliable out-of-court identification through the photographic array; (3) trial counsel was ineffective for failing to object to the admission of the photograph of Kirkland in the photographic array acquired through the statewide database; and (4) trial counsel was ineffective for failing to request a jury instruction on simple assault.
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a state prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Estelle, 502 U.S. at 68; Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997).
A. Exhaustion and Procedural Default
It is well established that all claims that a petitioner in state custody attempts to present to a federal court for habeas corpus review must have been fairly presented to each level of the state courts. 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State"); O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000). "The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992). The burden of establishing that such claims were "fairly presented" falls upon the petitioner. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). See also Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim."). The petitioner must show that "the claim brought in federal court [is] the substantial equivalent of that presented to the state courts." Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989) (citations omitted).
If a petitioner presents unexhausted habeas claims to a federal court, but state procedural rules bar further state court review, the federal court will excuse the failure to exhaust and treat the claims as exhausted. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although deemed exhausted, such claims are considered procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749 (1991); McCandless, 172 F.3d at 260.
Upon a finding of procedural default, review of a federal habeas petition is barred unless the habeas petitioner can show that "(1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered." Peterkin v. Horn, 176 F. Supp 2d 342, 353 (E.D. Pa. 2001), amended by 179 F. Supp 2d 518 (E.D. Pa. 2002). See also Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996).
First, "[a] state [procedural] rule provides an independent and adequate basis for precluding federal review of a state prisoner's habeas claims only if: (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state court's refusal in this instance is consistent with other decisions." Id. at 683-84. "A state [procedural] rule is adequate only if it is 'consistently and regularly applied.'" Id. at 684 (citations omitted).
Next, a federal habeas court cannot review the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice, or that a fundamental miscarriage of justice will result if the court does not review the claims. See Coleman, 501 U.S. at 750-51; McCandless, 172 F.3d at 260. To demonstrate cause for a procedural default, the petitioner must show that some objective external factor impeded petitioner's efforts to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual prejudice, the petitioner must show "not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
Lastly, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger, 266 F.3d at 224. The miscarriage of justice exception applies only in extraordinary cases where a "constitutional violation has ...