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Wallace v. Wydner

January 15, 2010


The opinion of the court was delivered by: Eduardo C. Robreno, J.


Petitioner Mark Wallace (a/k/a "Mark Green"), filed this habeas corpus petition under 28 U.S.C. § 2254, collaterally attacking his sentence and asking the Court to vacate, set aside, or correct it. For the following reasons, Petitioner's § 2254 motion will be denied.

As of the date of this memorandum, Petitioner completed five years in state custody and is presently in federal custody on a sentence stemming from a different and more recent conviction. Over seven years have passed since the filing of Petitioner's federal habeas petition, resulting in a dense, complex procedural history, one the Third Circuit categorized as "extremely involved and somewhat confusing . . . contain[ing] duplicative motions, parallel proceedings, multiple continuances, numerous filings, chaotic changes of counsel, petitions to proceed pro se, and confusing replacements of judges." Wallace v. Dragovich, 143 Fed. Appx. 413, 414 (3d Cir. 2005). However, in order to determine whether each of Petitioner's habeas claims are reviewable, this Court will first address the relevant procedural history and then the current posture of the claims.


On September 8, 2000, Petitioner was convicted, in the Court of Common Pleas, of criminal conspiracy to commit arson, after being found guilty by jury of participating in setting fire to his ex-girlfriend's car and home. Petitioner was sentenced to five to ten years imprisonment, which he began to serve on April 12, 2002.

On July 29, 2002, Petitioner filed his first habeas petition, pursuant to 28 U.S.C. § 2254, which this Court denied without prejudice for failure to exhaust state remedies on February 17, 2004.*fn1 On October 4, 2005, the Pennsylvania Superior Court denied six of the seven claims on appeal*fn2 and, on November 1, 2005, the Pennsylvania Supreme Court denied the petition for allowance of appeal.

On November 30, 2005, Petitioner filed the instant habeas petition, pursuant to 28 U.S.C. § 2254, alleging the same seven (7) claims to which Respondent replied on March 9, 2006.*fn3

Therein, Respondent argued that Petitioner had not exhausted his claims where an allocatur petition was pending before the Pennsylvania Supreme Court. (See Resp't's Resp. 3-6.) On September 18, 2006, Respondent filed a supplement to the response, stating that the allocatur petition was denied on July 6, 2006 and remanded to trial court for re-sentencing on August 9, 2006; therefore, the instant "mixed" petition of exhausted and unexhausted claims should be dismissed.

On January 29, 2007, this Court dismissed the instant habeas petition for lack of prosecution. The Third Circuit remanded the dismissal, on September 12, 2007, directing this Court to "permit renewed argument from the parties." (Third Circuit Order, dated Sept. 12, 2007.) Specifically, the Third Circuit stated: either because he has exhausted his available state court remedies . . . or because some of his claims are exhausted, and the rest are deemed . . . procedurally defaulted, Appellant no longer presents a mixed petition subject to dismissal for failure to exhaust state court remedies . . . . Accordingly, on remand . . . the District Court should consider the merits of the claims and any defenses thereto.


On June 3, 2008, this Court re-referred the case to Magistrate Judge M. Faith Angell for a Report and Recommendation, as consistent with the Third Circuit's Remand Order. On April 27, 2009, Magistrate Judge Angell recommended that Petitioner's case be dismissed on the merits. On May 4, 2009, Petitioner filed objections to the Report and Recommendation, challenging Magistrate Judge Angell's findings and addressing each of the asserted seven counts. Respondent filed responses thereto the following day and, on May 10, 2009, Petitioner filed a reply.

On August 28, 2009, this Court issued an order directing Petitioner to submit supplemental briefing to address whether each of the seven asserted claims is (1) exhausted or (2) procedurally defaulted prior to reaching a decision on the merits (doc. no. 73).*fn4 See United States v. Bendolph, 409 F.3d 155, 173 (3d Cir. 2005) (characterizing exhaustion and procedural default as "defenses"); Smith v. Horn, 120 F.3d 400, 409 (3d Cir. 1990) (same). Petitioner filed supplemental briefing on September 17, 2009 and, on November 20, 2009, Respondent filed a supplement to the response. Petitioner, on November 26, 2009, filed a reply. Accordingly, the case is now ripe for adjudication.*fn5


The Antiterrorism and Effective Death Penalty Act ("AEDPA") sets forth the standards for reviewing state court judgments in federal habeas petitions filed pursuant to 28 U.S.C. § 2254. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of state courts. Id. at 196 (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)).

Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may be granted only when the state court's decision was "contrary to,*fn6 or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,"*fn7 or when the state court's decision was an "unreasonable determination of the facts" based on the evidence adduced at trial." 28 U.S.C. § 2254(d)(1)-(2); Williams, 529 U.S. at 412; Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).

Pursuant to the AEDPA, a person in custody as a result of a state court judgment must "fairly present"*fn8 his federal constitutional claims in state court, thus exhausting his state remedies, before filing his federal habeas petition. 28 U.S.C. § 2254(b). The exhaustion requirement provides state courts an "initial opportunity to pass upon or correct alleged violations of its prisoner's federal rights." Wilwording v. Swenson, 404 U.S. 249, 250 (1971). Petitioner bears the burden to show fair presentation of all claims, satisfied by demonstrating the claims brought in federal court are the "substantial equivalent" to those presented in state court. Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983). Failure to exhaust state remedies will prompt the federal court to dismiss the claim without prejudice, so as to allow the state courts the opportunity to first review the claim. Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993). However, under § 2254(b)(2), a habeas corpus petition "may be denied on the merits, notwithstanding the failure of the applicant to exhaust" available state remedies. Lines v. Larkins, 208 F.3d 153, 160 n.8 (3d Cir. 2000).

Additionally, "where state procedural rules bar a petitioner from seeking further relief in state courts, 'the exhaustion requirement is satisfied because there is an absence of available State corrective process.'" Id. (citing 28 U.S.C. § 2254(b)); see also McCandless, 172 F.3d at 260). As such, exhausted claims pursuant to a state procedural bar are in fact procedurally defaulted, and "federal courts may not consider their merits unless the petitioner establishes 'cause and prejudice' or a 'fundamental miscarriage of justice' to excuse the default." Id. (internal quotation marks omitted); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991).


A. Claims I, II, and V: Ineffective ...

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