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Clifton Parker v. John Kerestes et al

February 29, 2012

CLIFTON PARKER, PETITIONER
v.
JOHN KERESTES ET AL., RESPONDENTS



The opinion of the court was delivered by: Paul S. Diamond, J.

DECISION

On September 30, 2011, the Magistrate Judge issued a Report and Recommendation, recommending denial of the instant Petition for writ of habeas corpus. (Doc. Nos. 1, 14.) See 28 U.S.C. § 2254. Petitioner Clifton Parker filed a timely Objection. (Doc. No. 18.) Upon careful consideration of the Report and Recommendation and Petitioner's Objection, I will approve and adopt the Report and Recommendation and deny the Petition.

Because I write for the Parties, and this case's factual background is set out in the Report and Recommendation, I will not repeat it here.

I. LEGAL STANDARD

I must conduct a de novo review of any objections to a Magistrate Judge's Report and Recommendation. 28 U.S.C. § 636(b); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).

II. DISCUSSION

1. Exhaustion

Petitioner argues in Claim 3 of his Petition that the state trial court admitted his statement to police in violation of Miranda. He argues in Claim 4(d) that his counsel was ineffective for failure to call character witnesses. The Magistrate Judge recommends denial of these claims because Petitioner failed to exhaust them in state court. (Doc. No. 14 at 10-14.) See 28 U.S.C. § 2254(c); Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010). Petitioner argues that he "reasonably informed the state court" of Claim 3 by "referencing 'inadequate Miranda warnings' in his direct appeal brief." (Doc. No. 18 at 2.) Making a fleeting reference to a possible claim does not exhaust it. "Both the legal theory and facts underpinning the federal claim must have been presented to the state courts, and the same method of legal analysis must be available to the state courts as will be employed in the federal court." Evans v. Court of Common Pleas, De. County, Pa., 959 F.2d 1227, 1231 (3d Cir. 1992) (citations omitted). The Magistrate Judge thus correctly determined that Petitioner failed to exhaust Claim 3.

Petitioner argues that he failed to raise Claim 4(d) at PCRA because he faced "[o]bjective impediments to filing a second PCRA, including unsettled legal principles as to effects of alternative filings." (Doc. No. 8 at 2.) Petitioner does not elaborate on these "objective impediments," and he cites no authority for his assertion that they are "grounds for finding cause and prejudice." (Id.) Accordingly, he provides me no grounds to grant relief as to Claim 4(d). See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (vague and general allegations insufficient to justify habeas relief).

2. Involuntary Waiver of Miranda Rights

Petitioner argues in Claim 1 that the trial court erred in refusing to suppress written statements he made to police. The Magistrate Judge recommends denial of Claim 1 because Petitioner did not exhaust its federal elements. Petitioner presented this claim to state courts as a violation of Pennsylvania law, and not as a "violation of the laws or treaties of the United States." (Doc. No. 14 at 14-16.) 28 U.S.C. § 2254(a). Petitioner objects because, when "misapplication of state law has the effect of depriving a person of life, liberty, or property without due process of law in violation of the Fourteenth Amendment, the resulting Federal constitutional error can be corrected by a Federal habeas court." (Doc. No. 18 at 3.) See Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997) (citing Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (O'Connor, J., concurring in the judgment)). This purported misapplication of Pennsylvania law does not excuse Petitioner from exhausting his federal claims in state court. Accordingly, I will deny Claim 1. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001).

3. Improper Jury Instruction

Petitioner argues in Claim 2 that the trial court erred by giving the jury an improper "no adverse inference" instruction after Petitioner chose not to testify. The Magistrate Judge recommends denial of this claim because it presents a state law violation, and not a "violation of the laws or treaties of the United States." (Doc. No. 14 at 17-19.) 28 U.S.C. ยง 2254(a). In his Objection, he again argues that misapplication of state law violated his due process rights under the Fourteenth Amendment. See Smith, 120 F.3d at 414. Upon reviewing the record, however, I conclude that he did not raise the federal element of this claim before state courts (Doc. No. 11), and also did not raise this argument before the Magistrate Judge (Doc. No. 1). See Bailey v. U.S. Marshals Serv. Headquarters, 426 F. App'x 44, 47 ...


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