The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan
MEMORANDUM OPINION AND ORDER
Petitioner, Allen O'Neil Fitzgerald, a/k/a Allen O'Neil Baltimore, a state prisoner incarcerated at the State Correctional Institution at Dallas, Pennsylvania, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition will be denied.
A. Relevant Factual and Procedural History
In this Petition, Petitioner attacks his convictions of robbery, receiving stolen property, and conspiracy. The crimes stemmed from the following facts as testified to at the trial. On November 18, 2001, Franz Greer and his girlfriend, Tenika Jones went to Best Video on Ohio Street on the north side of the City of Pittsburgh. They were accompanied by Ms. Jones' sister, Shelna Jones, who went into the Isaly's store next to the video store. Upon exiting the video store, a man later identified as Lamar Williams approached them and asked if they wanted to buy a camera. As they were discussing the purchase of the camera, Petitioner approached Mr. Greer from behind, stuck a gun into his side and told him to "kick it." At that point, Fitzgerald and Williams stripped Mr. Greer of his jewelry consisting of a gold necklace and four diamond rings, his wallet containing approximately $64 in cash and his cell phone. The assailants then fled in a Pontiac Grand Am.
Mr. Greer got into his vehicle and pursued the assailants. While doing so, he passed a police vehicle, which he flagged down. He informed the police that he had been robbed and the police began pursuing the Grand Am. The assailants continued to flee and a high speed chase ensued for several minutes throughout downtown Pittsburgh. The police lost sight of the vehicle when their car stalled, but discovered it a short distance away. The vehicle, which was still running, had been abandoned with the doors open in front of an apartment building in the Hill District of the City. A person at the scene told the police that he observed two persons run into the apartment building. The police knocked on the door and a tenant permitted them to enter the premises. After searching the first floor apartment, which was empty, they proceeded to the second floor apartment where they found the assailants hiding in separate closets in opposite bedrooms. A search of the area revealed the stolen money and jewelry.
On October 8, 2002, a joint jury trial for Petitioner and co-defendant Williams commenced before the Honorable Lawrence J. O'Toole in the Court of Common Pleas of Allegheny County, Pennsylvania. On October 10, 2002, Petitioner and Williams were found guilty of all charges. On January 2, 2003, Petitioner was sentenced to an aggregate term of incarceration of from twenty-five (25) to fifty (50) years for his convictions of robbery, receiving stolen property, and conspiracy. On January 10, 2003, Petitioner filed post-sentence motions, alleging that the evidence was insufficient to prove robbery and that the sentence was illegal. On May 22, 2003, the Petitioner's post-sentence motions were denied by operation of law.
Following the reinstatement of his direct appeal rights, Petitioner's appointed counsel filed Concise Statements of Matters Complained of on Appeal. On April 7, 2004, the trial court rendered an Opinion addressing and denying Petitioner's Concise Statements (ECF No. 17-2, pp. 27-35). Petitioner, filed a Brief in support of his appeal with the Superior Court of Pennsylvania wherein he raised the following claims (ECF No. 17-3).
1. Appellant is entitled to a new trial because his Pa. Const. Art. I §§ 6 and 9 and U.S. Const. Amend. VI and XIV jury trial and due process rights, as well as his Pa. R. Crim. P. 601A and 631(a) procedural rights were violated when the jury selection phase of his trial was conducted without a judge presiding over that hearing and without that hearing being recorded -- structural defects in the Constitution of the trial mechanism for which prejudice is irrefutably presumed.
2. Appellant is entitled to a new trial because his Pa. Const. Art. I § 9 and U.S. Const. Amend. VI and XIV effective counsel and due process rights were violated when trial counsel rendered ineffective assistance, discernable from the record via his failure to object to the trial judge authorizing an unrecorded extra-judicial jury selection hearing without first having secured a valid waiver from Appellant of his right to have a judge preside at such a hearing and to have the proceedings recorded.
3. Appellant is entitled to relief because his Pa. Const. Art. I § 9 and U.S. Const. Amend. VI and XIV effective counsel and due process rights were violated when trial counsel ineffectively failed (a) to seek to have Appellant's prior Robbery conviction referred to as a "crime of dishonesty"; (b) to seek an immediate cautionary instruction upon disclosure of defendant's past conviction; and (c) to object to a final instruction telling the jurors that they could consider the "type of crime previously committed" by defendant.
On June 21, 2005, the Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence (ECF No. 17-5, pp. 29-33). Petitioner filed a timely petition for allowance of appeal to the Supreme Court of Pennsylvania, which was denied by that Court on June 6, 2006. Petitioner filed a timely petition for certiorari with the United States Supreme Court, which was denied on January 8, 2007
On March 29, 2007, Petitioner filed a pro se PCRA Petition. Thereafter appointed counsel filed an Amended PCRA petition on Petitioner's behalf raising the following issue.
Trial counsel was ineffective for failing to object to the absence of a judge and stenographer at the jury selection phase of trial.
On February 21, 2008, the trial court issued an Order dismissing Petitioner's PCRA Petition as meritless. Petitioner filed a Notice of Appeal to the Superior Court of Pennsylvania and on December 30, 2008, the Superior Court of Pennsylvania affirmed the trial court's order denying Petitioner's PCRA petition. Petitioner's timely Petition for Allowance of Appeal to the Pennsylvania Supreme Court was denied on August 20, 2009.
On October 14, 2009, Petitioner filed a pro se Petition for Writ of Habeas Corpus in this Court raising four claims. Respondent filed their Answer on December 22, 2009 (ECF No. 15). Petitioner then filed an Amended Petition raising only two of his four claims (ECF No. 23). First, Petitioner states that he is entitled to habeas corpus relief because his jury trial, due process, and procedural rights were violated when he was convicted by a jury that was selected at a "judgeless", "recordless", jury selection hearing when he did not specifically waive his rights to such during a waiver colloquy. Second, Petitioner states that he is entitled to relief because his Sixth Amendment effective counsel rights and Fourteenth Amendment Due Process rights were violated when his attorney ineffectively failed to object to a "judgeless", "recordless" jury selection hearing absent Petitioner's voluntary, knowing, and intelligent consent to such a proceeding. Respondent filed a Second Answer on May 27, 2010 (ECF No. 28) wherein it noted that these claims were included in Petitioner's first habeas corpus petition and were addressed by Respondent in its original answer. The Petition is ripe for review.
B. Standards Governing Federal Habeas Corpus Review
1. Exhaustion Requirement
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To comply with the exhaustion requirement, a state prisoner first must have fairly presented his constitutional and federal law issues to the state courts through direct appeal, collateral review, state habeas proceedings, mandamus proceedings, or other available procedures for judicial review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996); Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996). Moreover, a petitioner must present every claim raised in the federal petition to the state's trial court, intermediate appellate court and highest court before exhaustion will be considered satisfied. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). The petitioner has the burden of establishing that exhaustion has been satisfied. Ross v. Petsock, 868 F.2d 639, 643 (3d Cir. 1989); O'Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir. 1987).
Exhaustion is not a jurisdictional limitation, however, and federal courts may review the merits of a state petitioner's claims prior to exhaustion when no appropriate state remedy exists. Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997); Doctor, 96 F.3d at 681; Carter v. Vaughn, 62 F.3d 591, 594 (3d Cir. 1995). A petitioner shall not be deemed to have exhausted state remedies, however, if he has the right to raise his claims by any available state procedure. 28 U.S.C. § 2254(c).
An application for a writ of habeas corpus may be denied on the merits, however, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. 28 U.S.C. § 2254(b)(2).
Here, Petitioner raised his claims on direct review and in his PCRA proceeding. Thus, his claims are "exhausted" for purposes of federal court review.
In describing the role of federal habeas proceedings, the Supreme Court of the United States, in Barefoot v. Estelle, 463 U.S. 880, 887 (1983), noted:
[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence.... The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996, (AEDPA), which further "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
Amended Section 2254 of the federal habeas corpus statute provides the standard of review for federal court review of state court criminal determinations and provides, in relevant part, as follows:
(d) An 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 with respect to any claim that was adjudicated on the merits in State ...