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Joshua Fisher. v. Warden

May 24, 2011


The opinion of the court was delivered by: Judge Conner


Petitioner Joshua Fisher ("petitioner"), a Pennsylvania state inmate, initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on January 13, 2010. (Doc. 1.) He challenges 2007 Court of Common Pleas of York County sentences imposed following his plea of guilty to possession with intent to deliver cocaine and for possession with intent to deliver marijuana. (Doc. 1.) For the reasons that follow, the petition will be denied.

I. Background & Procedural History

The factual and procedural background contained in this section are primarily extracted from the Superior Court of Pennsylvania December 1, 2009 opinion, which states as follows:

In November 2006, Pennsylvania State Police Officer Christopher Keppel received information from a confidential informant of cocaine and marijuana distribution by a person named Josh from a residence located at 719 South Pershing Avenue in York County. After further investigation, Officer Keppel determined that [petitioner] resided there and orchestrated the purchase of cocaine by a person other than the original informant. Thereafter, Officer Keppel initiated a second, controlled narcotic buy through another confidential informant who had personal knowledge that [petitioner] was selling cocaine and marijuana at the subject residence.

Subsequently, Officer Keppel applied for a search warrant for the property and secured the residence with a police surveillance unit. When [petitioner] and two other men left the residence by vehicle, police followed them to the nearby bar and restaurant. Once Officer Keppel obtained the search warrant from a district magistrate, he radioed the surveillance unit to take [petitioner] into custody and return him to the subject property to be present for the search. During the search, police recovered three ounces of cocaine, five pounds of marijuana, several firearms, and drug packaging paraphernalia.

On August 23, 2007, [petitioner] pled guilty to two counts of possession with intent to deliver (PWID) pursuant to 35 P.S. § 780-113(a)(30) and received a negotiated sentence of five to ten years' imprisonment. [Petitioner] did not challenge the convictions on direct appeal.

On September 5, 2008, [petitioner] filed a timely, counseled PCRA petition. In that petition, [petitioner] alleged that trial counsel, Harry M. Ness, was ineffective for failing to file a suppression motion. Specifically, [petitioner] alleged that police arrested him without a warrant or probable cause, and that the search of the residence commenced prior to the execution of the search warrant. Thus, [petitioner] contended that counsel was ineffective for failing to challenge the obtained evidence by filing a suppression motion. The PCRA court held a hearing on November 26, 2008 wherein [petitioner] and Attorney Ness testified. The PCRA court denied relief in an opinion and order filed January 20, 2009. (Doc. 8-3, at pp. 148-49.)

Petitioner filed a timely appeal rasing the following issues for review: Whether the standard of review applied by the PCRA court to [petitioner's] claims of ineffective assistance of counsel is contrary to or an unreasonable application of clearly established law [ ]?

Whether counsel's performance was objectively unreasonable for failure to file and litigate a motion to suppress evidence obtained as a result of the warrantless arrest of his client in violation of the Melendez decision, and whether there was a reasonable probability of a different outcome is [sic] he had filed the suppression motion? (Id. at 149.) The Superior Court concluded that the PCRA court did not err in denying petitioner relief. (Id. at 155.)

He filed the instant petition raising the issue of "ineffective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution." (Doc. 1, at 6.) Specifically, he contends that counsel was ineffective for failing to file a suppression motion (Doc. 2, at 10) challenging the alleged search of his residence prior to the issuance of a search warrant and his warrantless arrest, and for failing to challenge the sufficiency of the affidavit of probable cause attached to the search warrant.

II. Standards of Review

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (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, 67-8 (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); Estelle, 502 U.S. at 67-8; see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).

Before a federal court can review the merits of a state prisoner's habeas petition, it must determine whether the petitioner has met the requirements of exhaustion. Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

Once a court is satisfied that the exhaustion requirement has been met, and a merits review of a claim is warranted, as is the case here, section 2254(d) of Title 28 of the United States Code provides, in pertinent part, that an application for a writ of habeas corpus premised on a claim previously adjudicated on the merits shall not be granted unless the decision is contrary to, or involves an unreasonable application of, clearly established federal law, or is 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). AEDPA thus limits a federal court's authority to grant habeas relief when a state court has previously considered and rejected the federal claim on the merits.

The United States Court of Appeals for the Third Circuit recently set forth the following analyses applicable to the three legal inquiries:

Consistent with Supreme Court precedent, we read § 2254(d) to require three distinct legal inquiries. See, e.g., Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 785 (2011). The first is whether the state court decision was "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). The second is whether the state court decision "involved an unreasonable application of" such law. § 2254(d)(1). And the third is whether the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented" to the state court. § 2254(d)(2).

The test for § 2254(d)(1)"s "unreasonable application of" clause is as follows: "[a]n 'unreasonable application' occurs when a state court 'identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts' of petitioner's case." Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S. 519, 520 (2003)). For purposes of § 2254(d)(1), "[i]t is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal quotations omitted). "Under § 2254(d)(1)'s 'unreasonable application' clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 75-76 (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)). Rather, "[t]he state court's application of clearly established law must be objectively unreasonable" before a federal court may grant the writ. Andrade, 538 U.S. at 75.

The test for § 2254(d)(1)'s "contrary to" clause is whether the state court decision "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme] Court but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405, and Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)). Of course, a state court's resolution of a question that the Supreme Court has not resolved can be neither contrary to, nor an unreasonable application of, the Court's precedent. See Kane v. Garcia Espitia, 546 U.S. 9 (2005).

The test for § 2254(d)(2)'s "unreasonable determination of facts" clause is whether the petitioner has demonstrated by "clear and convincing evidence," § 2254(e)(1), that the state court's determination of the facts was unreasonable in light of the record. See Rice v. Collins, 546 U.S. 333, 338-339 (2006) ("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.'") (quoting § 2254(e)(1)) (citing Miller-El v. Dretke, 545 U.S. 231, 240 (2005))); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) ("Under the § 2254 standard, a district court is bound to presume that the state court's factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence."). Importantly, the evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication. Cullen v. Pinholster, --- U.S. ---, 2011 WL 1225705, at *11 (Apr. 4, 2011).

Rountree v. Balicki, - F.3d -, No. 09-1189, 2011 WL 1815965, at * 5-6 (3d Cir. May 13, 2011). Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316 (1979). Only when the finding lacks evidentiary support in the state court record or is plainly controverted by the evidence should the federal habeas court overturn a state court's factual determination. Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-09.

Relief can only be granted if petitioner demonstrates that the state court's decision satisfies one of the ...

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