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Edge v. Lawler

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


November 12, 2009

RAJ KAREE EDGE, PETITIONER
v.
ROBERT LAWLER; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS

The opinion of the court was delivered by: Amy Reynolds Hay Chief United States Magistrate Judge

Amy Reynolds Hay Chief Magistrate Judge

MEMORANDUM OPINION

Raj Karee Edge ("Petitioner"), a state prisoner, was convicted in a jury trial of first degree murder and conspiracy in the shooting death of Jason Faulk. Petitioner has filed a federal habeas petition pursuant to Section 2254, attacking his convictions. Unfortunately, the habeas petition is not a model of clarity. However, Petitioner does raise several trial court errors and several ineffective assistance of counsel claims. Because the state courts rejected most of the claims on the merits, and because Petitioner fails to show that the state courts' disposition of his claims was contrary to or an unreasonable application of United States Supreme Court precedent, his petition should be denied. In addition, the state courts did not address some of the issues Petitioner raises herein because he did not properly raise the issues in the state court proceedings. Accordingly, we find those issues to be procedurally defaulted and furthermore, we find that Petitioner has not carried his burden to show cause and prejudice or a miscarriage of justice in order to entitle him to have those issues addressed herein on the merits.

Relevant Factual and Procedural History

The trial court recounted the facts underlying the conviction as follows:

In the early morning hours of October, 4, 1998, the appellant, Raj Karee Edge, (hereinafter referred to as "Edge"), John Johnson, (hereinafter referred to as "Johnson"), and Donald Thomas, (hereinafter referred to as "Thomas"), were in a number of bars in the Hill District section of the City of Pittsburgh. While inside one bar, Johnson received a telephone call from his girlfriend, Ebony. She told Johnson that a person by the name of Jason Faulk, (hereinafter referred to as "Faulk"), the homicide victim in this case, had been involved in the burglary of the residence shared by Johnson and Ebony. Edge, Thomas and Johnson then decided to make Faulk pay for the burglary by killing him. The three individuals agreed that they needed to secure more firepower. They then picked up a fourth male by the name of Ronald Williams, (hereinafter referred to as "Williams"), who brought with him a nine millimeter semi-automatic firearm.

The individuals then travelled [sic] to Johnson's neighborhood, the Arlington Heights Section of the City of Pittsburgh, where they thought Faulk might be found. At approximately 3:00 a.m. on October 4, 1998, the group was proceeding along Arlington Avenue when they spotted Faulk, walking along the street. Thomas stopped the car before Faulk noticed the group and a number of the individuals exited the vehicle. Williams and Johnson, each armed with their firearms, approached Faulk and began firing at him. The initial volley caused Faulk to fall to the ground on his hands and knees. A second volley of shots was fired at Faulk and then he went completely to the ground. The third volley of shots was fired by Edge while Faulk was lying on the ground.

The shooting of Faulk, was witnessed by Jackie Green, (hereinafter referred to as "Green"), a woman who lived directly across the street from the incident in an apartment. Green saw Johnson standing over Faulk and shooting him and then saw other individuals involved shooting at Faulk as well. Once the shooting stopped, Johnson ran over to the door of his building [i.e., the building wherein was the apartment Johnson and Ebony shared, which apartment Faulk had allegedly burglarized] opened the door and told the other individuals to give him the straps and bounce. (Trial Transcript at 700). Green testified that she was familiar with those terms and that Johnson was telling the other individuals to give him the guns and run. The individuals, in fact, gave Johnson the weapons. Johnson then went inside and the other individuals ran to the car and left. Green then saw Johnson in his apartment. Green called 911 and a number of police officers arrived on the scene. Faulk was found dead with seven bullet wounds in his body. Green told the officers that Johnson was one of the actors involved and indicated where his residence was located. Upon receiving consent to search the apartment from Ebony, the police recovered three handguns from underneath a mattress upon which Ebony's children were sleeping.

Based upon the investigation performed by City of Pittsburgh homicide detectives, Edge was identified as an individual who might have information regarding the shooting of Faulk and the detectives requested that he meet with them and discuss the incident. Edge agreed, and after properly being given the necessary warnings and rights, Edge waived his rights and agreed to speak with the detectives and signed a waiver of rights form. He then proceeded to detail his involvement in the shooting of Faulk and the circumstances surrounding the incident. After making a number of corrections to the statement given to the homicide detectives, Edge adopted the statement with his signature. As a result of this incident, Edge was charged with criminal homicide, criminal conspiracy, and carrying a firearm without a license.

A jury trial commenced in this Court on May 9, 2001 and Edge was convicted on all counts. On September 5, 2001, Edge was sentenced to a mandatory life term of imprisonment for first degree murder and, in addition, was sentenced to thirteen and one-half to twenty-seven years of incarceration on Edge's conviction for criminal conspiracy and carrying a firearm without a license, said sentences to run consecutive to his life sentence. Edge thereafter appealed to the Superior Court.. . .

Dkt. [9-3] at 2 to 4 (footnotes omitted). .

In the instant habeas filing, Petitioner raises the following claims:

GROUND ONE: Denial of Fifth Amendment -- Petitioner did not knowingly waive his Miranda rights . . . . Petitioner was not properly informed he was under arrest and charged with murder.

Dkt. [1] at 5.

GROUND TWO: Denial of a fair trial -- Judge prevented Defense presentation of witness bias. . . . Trial Court sustained an objection to petitioner[']s questioning the bias of prosecution witness Jackie Green -- questioning would reveal the witness['] testimony was [a] product of personal animus.

Dkt. [1] at 6.

GROUND THREE: Denial of a fair trial -- Judge permitted testimony of deceased's mother, where prejudicial value [[which] was D.A. objective] outweighed its probative value. . . .

The deceased's mother [Mildred Faulk] was called to testify -- the deceased was her son -- and, that he was shot and killed.

Her testimony went far beyond that - and had the effect of prejudicing the jury against him -- appealing to the emotions of the jury.

Dkt. [1] at 8.

GROUND FOUR: Denial of Effective Assistance of Counsel . . . Trial Counsel failed [to] investigate and properly prepare to impeach Jackie Green; failed to challenge [the] admission of an unrelated gun (25 automatic) into evidence; counsel failed to communicate a plea offer.

Dkt. [1] at 10.

Ground Five: - Reverse Side - . . . . Denial of full and fair opportunity to be heard on collateral attack. This only ripened in the course of appellate [i.e., post conviction] litigation -- and was raised as a state right to counsel -- and is a federal right to due process.

Dkt. [1] at 11.

Unfortunately, the Clerk's office failed to scan the reverse side of the page upon which Petitioner expanded upon Ground Five. This error was only recently discovered. The Court directed the Clerk's office to re-scan the original as a corrected habeas petition so as to include the reverse page that was erroneously not scanned. The corrected habeas petition is Dkt. [17].*fn1

The Respondents filed their Answer to the habeas petition, Dkt. Nos. [8] to [9], as well as a supplemental answer, Dkt. [10]. The Respondents also caused the original State Court record to be transmitted to this Court. All parties have consented to have the Magistrate Judge exercise plenary authority to enter final judgment. Dkt. Nos. [3] & [12]

AEDPA is Applicable

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, §101 (1996) ("AEDPA"), which amended the standards for reviewing State court judgments in federal habeas petitions filed under 28 U.S.C. § 2254, was effective April 24, 1996. Because petitioner's habeas petition was filed in the year 2008, AEDPA is applicable to this case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000).

Where the state courts have reviewed a federal issue presented to them and disposed of the issue on the merits, and that issue is also raised in a federal habeas petition, AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state courts' disposition of that issue. See 28 U.S.C.§ 2254(d) and (e).

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court has expounded upon the standard found in 28 U.S.C. § 2254(d). In Williams, the Court explained that Congress intended that habeas relief for errors of law may only be granted in two situations: (1) where the State court decision was "contrary to . . . clearly established Federal law as determined by the Supreme Court of the United States" or (2) where that State court decision "involved an unreasonable application of[] clearly established Federal law as determined by the Supreme Court of the United States." Id. at 404-05 (emphasis deleted). The Court explained the two situations in the following terms:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 412-13. The Court of Appeals for the Third Circuit has also elucidated the "contrary to" clause by noting that "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Werts v. Vaughn, 228 F.3d at 197 (quoting Matteo v. Superintendent, SCI-Albion, 171 F.3d 877, 888 (3d Cir. 1999)(en banc)). Moreover, it is Petitioner's burden to prove the State court decision is either contrary to or an unreasonable application of clearly established federal law. See Matteo, 171 F.3d at 888; Werts v. Vaughn, 228 F.3d at 197.

AEDPA also permits federal habeas relief where the State court's adjudication of the claim "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)(2).

Discussion

As a global matter, Petitioner failed to even argue let alone demonstrate that the state courts' adjudications of the claims he raised therein, which he also raises herein, were contrary to or an unreasonable application of then extant United States Supreme Court precedent. For this reason alone, he fails to carry his burden to show entitlement to relief as to those claims. Downing v. Del Papa, 145 Fed.Appx. 578, 580 (9 th Cir. 2005)("Downing fails to argue how the Nevada Supreme Court's judgment 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")(emphasis added); Anderson v. Secretary for Dept. of Corrections, 462 F.3d 1319, 1325 (11 th Cir. 2006)("Petitioner had not met his burden of showing the state courts' decisions were 'contrary to' or 'an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.'"); Sepulveda v. U.S., 330 F.3d 55, 66 (1 st Cir. 2003) (AEDPA requires state "petitioners to bear a different burden; they must demonstrate that the state court's adjudication of the claim '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.'"); Laemmle v. Michaels, Civil Action No. 08-333, 2009 WL 2602065, at * 5 (W.D.Pa. Aug. 24, 2009("Petitioner has cited no federal Supreme Court precedent nor has he even argued that such a disposition is contrary to or an unreasonable application of then extant federal Supreme Court precedent. For this reason alone , he fails to show that he merits relief under AEDPA.")(emphasis added).

As to Ground One, Petitioner claims the trial court erred in admitting his confession to participating in the killing at the trial. The trial court conducted a suppression hearing, where both Petitioner and his mother (who accompanied Petitioner to the police station when he gave his confession) testified as well as the police officers who took Petitioner's confession. The trial court apparently crediting the police officers' version of the events and not crediting the Petitioner's version of the events, made a finding that Petitioner was properly given his Miranda warnings and that he knowingly and voluntarily waived those rights. The trial court rejected Petitioner's contention to the contrary. Dkt. [9-3] at 4 to 5, as did the Superior Court. Dkt. [9-4] at 3 to 4. Petitioner does not argue that the state courts' disposition of this suppression claim is contrary to or an unreasonable application of federal Supreme Court law. Nor does this court find the state court dispositions to be such. Neither is the state courts' adjudication of this claim an unreasonable determination of the facts. As such, this claim fails to afford Petitioner relief.

We turn next to Ground Two, wherein Petitioner claims he was denied a fair trial when the trial court sustained an objection by the prosecution as to a question directed at Jackie Green, which sought to elicit that she disliked John Johnson, the boyfriend of Ebony and a co-conspirator of Petitioners in the murder of Jason Faulk. The Respondents argue that this claim was never presented as a claim of federal constitutional violation but merely as a claim of state evidentiary law. To the extent that they are correct, any federal substantive due process claim of fundamental unfairness would be procedurally defaulted and Petitioner has not shown cause or prejudice for failing to raise this as a federal issue in the State Courts.*fn2 Nor on this record, could Petitioner show a miscarriage of justice so as to overcome the procedural default.*fn3

In the alternative, the Superior Court addressed this claim, finding, first, that the evidence of Ms. Green's dislike of Mr. Johnson was not relevant to her testimony regarding Petitioner's role in the crime and so inferentially not admissible. Dkt. [9-4] at 5 ("Green's bias against Johnson was not relevant in Appellant's trial."). Second, the Superior Court determined that any error in the exclusion of this evidence was harmless. Dkt. [9-4] at 4 to 5. Petitioner fails to even argue that this disposition was contrary to or an unreasonable application of federal Supreme Court precedent. Nor do we find it to be such. See Neder v. United States, 527 U.S. 1, 18 (1999) ("The erroneous admission of evidence in violation of the Fifth Amendment's guarantee against self-incrimination, and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment are both subject to harmless-error analysis under our cases")(citations omitted). Even if we were to review this issue de novo , we would, like the Superior Court, conclude that the exclusion of this evidence, (assuming, solely for the sake of argument such exclusion violated Petitioner's right to fundamental fairness guaranteed by substantive due process), was harmless, in light of Petitioner's own confession and the other evidence of his guilt. Accordingly, this issue does not merit Petitioner relief.

We next take up Ground Three, wherein Petitioner contends that the trial court denied him fundamental fairness and violated substantive due process, when the trial court permitted Jason Faulk's mother to take the stand to testify that her son was killed.

Again, the Respondents argue that this issue was presented solely as one of state law evidentiary error and not as a claim of denial of fundamental fairness in violation of substantive due process. Dkt. [8] at 13 to 14; 17. To the extent that they are correct, any claim of substantive due process violation in the admission of Ms. Faulk's testimony would be procedurally defaulted and Petitioner has made no adequate showing of cause and prejudice nor has he shown a miscarriage of justice.

In the alternative, the trial court found that this evidence by Ms. Faulk was relevant to establish that Jason Faulk had been killed and further found that this evidence was in no way prejudicial and hence, no error occurred. Dkt. [9-3] at 6 to 7. The Superior Court found that the trial court did not err in admitting this evidence. See Dkt. [9-4] at 6 ("'The Commonwealth has the burden of proving the guilt of the defendant by whatever material evidence it can muster.' Id . Accordingly, the trial court was not obligated to force the Commonwealth to accept the stipulation" which Petitioner's counsel offered, i.e., agreeing to stipulate that Jason Faulk was dead). The Superior Court then held in the alternative that even if it were error to admit the testimony of Jason Faulk's mother, the error "was harmless as an abundance of evidence existed to support Appellant's conviction, including his own signed confession." Dkt. [9-4] at 6.

Petitioner does not argue that the state courts' disposition of this claim was contrary to or an unreasonable application of then extant federal Supreme Court precedent. Nor do we find it to be such.

In the alternative, even if we were to review this issue de novo , it affords Petitioner no relief. His claim is that he was denied fundamental fairness in his trial due to the admission of Ms. Faulk's testimony. We have reviewed that testimony in the trial transcript which consists of less than three pages. Petitioner has not sustained his burden to show that he was denied fundamental fairness in his trial based upon Ms. Faulk's testimony.

A claim that one was denied substantive "due process" is a claim that one was denied "fundamental fairness." See Riggins v. Nevada, 504 U.S. 127, 149 (1992)("We have said that 'the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial,' Spencer v. Texas , 385 U.S. 554, 563-564 (1967)[.]"); Lisenba v. California, 314 U.S. 219, 236 (1941) ("The aim of the requirement of due process is . . . to prevent fundamental unfairness"); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) ("In order to prevail on a claim that an . . . error deprived the defendant of due process under the Fourteenth Amendment he must show that the error was so pervasive as to have denied him a fundamentally fair trial"). Because the guideposts for decision making under the rubric of due process are lacking, the Supreme Court has cautioned that

In the field of criminal law, we "have defined the category of infractions that violate 'fundamental fairness' very narrowly" based on the recognition that, "[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Dowling v. United States, 493 U.S. 342, 352 (1990). The Bill of Rights speaks in explicit terms to many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order.

Medina v. California, 505 U.S. 437, 443 (1992)(some citations omitted).

"A trial is fundamentally unfair if there is a reasonable probability that the verdict might have been different had the trial been properly conducted." Foy v. Donnelly, 959 F.2d 1307, 1317 (5 th Cir. 1992) (internal quotation marks omitted). Where the evidence of guilt is so strong that there is no reasonable probability that the verdict might have been different, errors, if any were committed, could not deny the defendant fundamental fairness. See, e.g., United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994) ("To the extent any of the incidents constituted error, we believe that in light of the strong evidence of guilt, the errors were harmless and did not deprive Copple of a fundamentally fair trial."). Here, given the overwhelming evidence of Petitioner's guilt, including the eyewitness testimony of Ms. Green and Petitioner's own signed confession, we find that Petitioner has not established that there was "a reasonable probability that the verdict might have been different had the trial been properly conducted." Foy v. Donnelly, 959 F.2d at 1317. Accordingly, this issue affords Petitioner no relief.

Next, we consider, Petitioner's Ground Four. In Ground Four, Petitioner claims that his trial counsel was ineffective for the following reasons: failing to investigate and properly prepare to impeach Jackie Green; failing to challenge the admission into evidence of a .25 caliber automatic gun; and failing to communicate a plea offer.

The Respondents point out that Petitioner failed to properly raise the claims that counsel was ineffective for failing to impeach Jackie Green and failing to challenge the admission of the .25 caliber gun into evidence. Petitioner does not contend otherwise and our review of the record supports the Respondents' position. See, e.g., Dkt. [9-3] at 17 (Direct Appeal Brief to the Superior Court);*fn4 Dkt. [9-5] at 18 (the amended counseled PCRA petition);*fn5 Dkt. [9-6] at 5.*fn6

From our review of the original state court record, it appears that Petitioner did raise these two claims of trial counsel's alleged ineffectiveness in his original un-counseled PCRA petition, however, those claims were abandoned in the counseled-amended PCRA petition and also on appeal to the Superior Court and, hence waived under state law and procedurally defaulted under federal law.*fn7

We also note that Petitioner attempted to revive these waived claims in his pro se petition for allowance of appeal field after his PCRA counsel was permitted to withdraw by the Superior Court. Dkt. [9-7] at 9. However, such cannot rescue his claims from being procedurally defaulted. Sistrunk v.Vaughn, 96 F.3d 666, 671 n.4 (3d Cir. 1996) ("the rules [of Pennsylvania's appellate procedure] dictate that an issue raised at the trial level but not preserved on appeal will not be considered by any subsequent appellate court."); Commonwealth v. Agie, 296 A.2d 741, 741 (Pa. 1972)("We have consistently held that issues not raised in the court below are waived and cannot be raised for the first time on appeal to this Court.")(citations omitted). Accordingly, we find that Petitioner has procedurally defaulted the claims of his trial counsel's alleged ineffectiveness for failing to (1) investigate and properly prepare to impeach Jackie Green and (2) for failing to challenge the admission into evidence of a .25 caliber automatic gun into evidence. Petitioner has not persuasively demonstrated cause and prejudice for such a default. Nor is any apparent from the record. The only claim he would seemingly now have is a claim that his PCRA counsel was ineffective for failing to raise these claims of trial counsel's alleged ineffectiveness,*fn8 and as noted earlier, it appears that he does make such a claim of cause based upon his PCRA counsel's performance. Dkt. [9-7] at 9 to 11. However, as we saw above, Petitioner has no federal right to counsel at the PCRA stage and the rule is where there is no federal right to counsel, counsel's ineffectiveness at that stage cannot serve as cause to excuse a procedural default. Coleman v. Thompson, 501 U.S. 722, 757 (1991) ("Because [the petitioner] had no right to counsel to pursue his appeal in state habeas, any attorney error that led to the default of [his] claims in state court cannot constitute cause to excuse the default in federal habeas."); Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993) ("Under Coleman , ineffective assistance of post-conviction counsel cannot constitute 'cause' because the Sixth Amendment does not entitle a defendant to post-conviction counsel"). Moreover, Petitioner has not even argued nor could he successfully argue for a miscarriage of justice. Hence, having procedurally defaulted these two claims of trial counsel's ineffectiveness, and having failed to show either cause and prejudice or a miscarriage of justice, these two claims of trial counsel's putative ineffectiveness cannot afford Petitioner relief.

The next issue we consider is the issue of trial counsel's alleged ineffectiveness for failing to communicate a plea offer to Petitioner. This issue was raised in the PCRA proceedings, and indeed was the sole issue raised in the amended PCRA petition and the sole issue raised on appeal to the Superior Court from the PCRA Court's denial of relief. The PCRA trial court conducted a hearing on this claim where both Petitioner and Petitioner's trial counsel testified. Petitioner's trial counsel testified that no plea offer was made. The PCRA court credited the testimony of Petitioner's trial counsel and found as a fact that no plea offer had been made. Dkt. [9-5] at 34 to 35. Specifically, the PCRA trial court found that "[w]hen reviewing the record and the testimony in this particular proceeding in light of Edge's contention that he would have accepted a plea agreement had it been communicated to him, it is clear that there were no plea negotiations ever undertaken [because Jason Faulk's family objected and the prosecutor acceded to the Faulk family's objections] and, accordingly, there was no plea agreement ever offered to Edge's counsel which should have been communicated to him. Since there was no plea agreement. . . ." Dkt. [9-5] at 35 to 36. The Superior Court affirmed. Specifically, the Superior Court determined that "since the PCRA court found that no plea offer had been made and since the record testimony supports this conclusion, we must likewise find that no plea offer was made and that, therefore, there can be no finding of ineffectiveness. Appellant's underlying issue is wholly without merit." Dkt. [9-7] at 5. Petitioner does not argue that this disposition is contrary to or an unreasonable application of federal Supreme Court precedent, nor does he explicitly argue that this is an unreasonable determination of the facts. This court finds that the state courts' adjudication of this claim was not contrary to or an unreasonable application of federal Supreme Court precedent. Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000) ("counsel cannot be deemed ineffective for failing to raise a meritless claim"). Nor did the state courts' adjudication involve an unreasonable determination of the facts in light of the evidence presented at the PCRA hearing and in light of the credibility determinations made by the PCRA trial court. Accordingly, this issue affords Petitioner no relief.

Lastly, we take up Ground Five. It is not entirely clear what Petitioner is arguing in Ground Five. However, he appears to be arguing primarily that he was denied "a full and fair opportunity to be heard on collateral attack. This only ripened in the course of appellate litigation -- [i.e., appellate litigation of the PCRA petition, wherein his PCRA counsel sought to withdraw upon appeal] and was raised as a state right to counsel -- and is a federal right to due process." Dkt. [1] at 11, ¶ 13 (a). Petitioner expounds upon this theme when he contends that "post conviction counsel was permitted to withdraw without obtaining a full and fair review of Petitioner's issues" and further contends that PCRA "counsel failed to investigate and develop the facts surrounding the plea offer, and rebutt [sic] the assertion no deal was offered because the decease's mother refused it. Counsel's withdrawal [at the appeal stage of the PCRA proceedings] denied petitioner his due process right to be heard fully and fairly." Dkt. [17] at 12 (capitalization changed).

Hence, it appears that Petitioner seeks in Ground Five to raise a claim that his PCRA proceedings were fundamentally unfair because he could not successfully raise all of the claims he had wanted to and that such denial of fundamental fairness was due, at least in part, to the ineffective assistance of PCRA counsel. None of this affords Petitioner relief because the rule is errors in the course of a state's post conviction process simply are not cognizable in a federal habeas petition. Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998)("The federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation. . . . Federal habeas power is 'limited ... to a determination of whether there has been an improper detention by virtue of the state court judgment.'"); Bryant v. Maryland, 848 F.2d 492, 493 (4 th Cir. 1988); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5 th Cir.), cert . denied, Johnson v. Monroe, 522 U.S. 1003 (1997); Nichols v. Scott, 69 F.3d 1255, 1275 (5 th Cir.1995) ("An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself.") (internal quotation marks omitted); Roe v. Baker, 316 F.3d 557, 571 (6 th Cir. 2002) ("relief may not be granted to a habeas petitioner for alleged deficiencies in a state's post-conviction procedure"); Jolly v. Gammon, 28 F.3d 51, 54 (8 th Cir. 1994); Franzen v. Brinkman, 877 F.2d 26, 26 (9 th Cir. 1989); Hopkinson v. Shillinger, 866 F.2d 1185, 1219-20 (10 th Cir. 1989), on reh'g, 888 F.2d 1286 (1989), overruling on other grounds recognized by Davis v. Maynard, 911 F.2d 415, 417 (10 th Cir. 1990); Spradley v. Dugger, 825 F.2d 1566, 1568 (11 th Cir. 1987). Contra Dickerson v. Walsh, 750 F.2d 150, 153 (1 st Cir. 1984). Accordingly, Ground Five affords Petitioner no relief.

As none of the grounds Petitioner raises affords him relief, the petition will be denied. Certificate of Appealability A certificate of appealability ("COA"), which is a prerequisite for allowing an appeal to a Court of Appeals, should not be issued unless the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). A "substantial showing" requires a habeas petitioner to show that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right[.]" Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also Walker v. Government of The Virgin Island, 230 F.3d 82, 89-90 (3d Cir. 2000).

Applying this standard to the instant case, the court concludes that jurists of reason would not find it debatable whether the petition fails to state a valid claim of the denial of a constitutional right. Accordingly, a certificate of appealability should be denied.

An appropriate Order follows.


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