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Jose Nieves-Ramos v. Gerald L. Rozum

November 10, 2011

JOSE NIEVES-RAMOS, PETITIONER
v.
GERALD L. ROZUM, ET AL., RESPONDENTS



The opinion of the court was delivered by: (Judge Rambo)

MEMORANDUM

Petitioner Jose Nieves-Ramos, an inmate currently incarcerated at the State Correctional Institution in Somerset, Pennsylvania ("SCI-Somerset"), initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania. The matter was subsequently transferred to this court. Petitioner is challenging his 2007 judgment of sentence imposed by the Court of Common Pleas of Dauphin County, Pennsylvania ("trial court" or "Dauphin County court"). For the reasons that follow, the petition will be denied.

I. Background

On March 20, 2008, following his pleas of nolo contendere*fn1 to one count each of rape of a child, indecent assault of a person less that 13 years of age, corruption of minors, and unlawful conduct with a minor - sexual offenses, the Dauphin County court sentenced Petitioner to an aggregate term of imprisonment of six to twelve years, followed by eight years of probation, plus costs. (Doc. 17-5, Ex. B.) As stated by the Pennsylvania Superior Court, Petitioner's pleas and sentence followed an incident in November 2006 wherein Petitioner, 20-years old at the time, engaged in sexual intercourse with a 12-year old girl. (Doc. 17-6 at 71, Ex. L, Commonwealth v. Nieves-Ramos, No. 1179 MDA 2009 (Pa. Super. Ct. Mar. 26, 2010) (unpublished memorandum).) No direct appeal was filed.

On July 17, 2008, Petitioner filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. (Doc. 17-5, Ex. C.) The Dauphin County court, now sitting as PCRA court, appointed counsel for Petitioner. (Doc. 17-6 at 72, Ex. L.) The PCRA court held an evidentiary hearing on December 9, 2008. (Doc. 17-5, Ex. E.) On February 27, 2009, Petitioner's appointed counsel petitioned to withdraw based on his belief that the issues being raised were without merit. (Doc. 17-5, Ex. F.) On April 24, 2009, the PCRA court permitted counsel to withdraw and stated its intention to dismiss the PCRA petition. (Doc. 17-5, Ex. G.) On June 12, 2009, the PCRA court dismissed the PCRA petition. (Doc. 17-5, Ex. I.) Petitioner timely appealed. (See Doc. 17-6 at 72, Ex. L.) On March 26, 2010, the Superior Court of Pennsylvania affirmed the denial of PCRA relief. (Doc. 17-6, Ex. L.)

Following these proceedings in state courts, Petitioner timely filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania on June 28, 2010, without an accompanying filing fee or application for leave to proceed in forma pauperis. (Doc. 1.) On July 9, 2010, the Western District court issued an order closing the case, but advised Petitioner that he may reopen the case by filing the proper fee or submitting an application to proceed in forma pauperis. (Doc. 2.) On July 21, 2010, Petitioner resubmitted his habeas petition with the proper filing fee. (Doc. 3.) Thereafter, by order issued on August 18, 2010, the court transferred the matter to this court. (Doc. 9.) After Petitioner filed his Notice of Election, (Doc. 13), by order dated October 21, 2010, this court directed Respondents to file an answer to the petition, (Doc. 14).

Respondents filed a response to the habeas petition on November 3, 2010. (Doc. 17.) As Petitioner has not filed a traverse, this matter is ripe for disposition.

II. Standard of Review - AEDPA Merits Review*fn2 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 in state court shall not be granted unless:

(1) [the decision] was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) [the decision] 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). To establish that the decision was contrary to federal law, "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." Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999) (emphasis in original). Similarly, a federal court will only find a state court decision to be an unreasonable application of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id. at 890.

Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A petitioner may only rebut this presumption with clear and convincing evidence of the state court's error. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000). Consequently, a habeas petitioner "must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 598 (1st Cir. 2000).

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, 317 (1979). "This provision essentially requires the district court to step into the shoes of an appellate tribunal, examining the record below to ascertain whether sufficient evidence existed to support the findings of fact material to the conviction." Breighner v. Chesney, 301 F. Supp. 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)*fn3 ). Mere disagreement with an inferential leap or credibility judgment of the state court is insufficient to permit relief. Porter, 276 F. Supp. 2d at 296; see also Williams v. Taylor, 529 U.S. 362, 410 (2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when the finding lacks evidentiary support in the state court record or is plainly controverted by evidence therein 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 408-10.

Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error:

[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the "substantial and injurious effect" standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Thus, even if the court concludes that constitutional error occurred in the state court, the court may not grant relief unless the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 631; see also Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008).

III. Discussion

In his petition, Petitioner makes the following claims: (1) counsel was ineffective for failing to file a direct appeal; and (2) counsel was ineffective for failing to withdraw Petitioner's nolo contendere pleas because they were not entered into knowingly, intelligently, or voluntarily. (Doc. 3.) Prior to discussing these claims, the court will set forth the standard for reviewing ineffective assistance of counsel claims.

A. Ineffective Assistance of Counsel

The Sixth Amendment guarantees an accused in a criminal prosecution the right to assistance of counsel for his defense. The applicable federal precedent for ineffective assistance claims is the well-settled two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See also Wiggins v. Smith, 539 U.S. 510, 521 (2003) (setting out the Strickland test); Williams, 529 U.S. at 390-91 (same). The first prong of the Strickland test requires a defendant to establish that his attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 688; Wiggins, 539 U.S. at 521. It follows that when a petitioner claims that his counsel failed to raise a claim that the court determines to be meritless, habeas relief under Strickland is not available. See Strickland, 466 U.S.at 691 (failure to pursue "fruitless" claims "may not be challenged as unreasonable"); see also United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999) (stating counsel cannot be deemed ineffective for failing to raise a meritless claim). A court must indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;" that is, the petitioner must overcome the presumption that, under the totality of the circumstances, the challenged action "might be considered sound trial strategy." Id. at 688-89, 690-92. The question is not whether counsel did not err, but whether counsel exercised the customary skill and knowledge that normally ...


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