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Pedro Vializ-Vega v. Jerome Walsh

June 26, 2012


The opinion of the court was delivered by: Juan R. Sanchez, J.


Petitioner Pedro Vializ-Vega, a prisoner in the State Correctional Institution in Dallas, Pennsylvania, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. United States Magistrate Judge Linda K. Caracappa has issued a Report and Recommendation (R&R) recommending the petition be dismissed as untimely. Upon review of the R&R and upon consideration of Vializ-Vega's objections thereto, this Court agrees Vializ-Vega's habeas petition should be dismissed; however, the Court will dismiss the petition on the alternative ground that Vializ-Vega's claims are procedurally defaulted and he has failed to make the requisite showing of cause and prejudice or a miscarriage of justice.


In May 2003, Vializ-Vega was convicted in the Court of Common Pleas of Berks County of involuntary deviate sexual intercourse, sexual assault, endangering the welfare of a child, indecent assault, indecent exposure, and corruption of minors, all arising out of his molestation of his step-granddaughter over a period of five to six years, when the victim was between eight and fourteen years old. App. to Answer to Pet'n for Writ of Habeas Corpus (App.) 30. In November 2003, Vializ-Vega received an aggregate sentence of 10 to 20 years of incarceration. App. 31-35.

Vializ-Vega appealed, and the Pennsylvania Superior Court affirmed his judgment of sentence on August 11, 2004. App. 92-100. The Pennsylvania Supreme Court denied Vializ-Vega's petition for allowance of appeal on February 16, 2006. App. 103.

On February 16, 2007, Vializ-Vega filed a pro se motion for post-conviction collateral relief pursuant to the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. § 9541 et seq., alleging his trial counsel was ineffective for failing to call witnesses on Vializ-Vega's behalf, and also alleging he did not understand some of the interpretation provided by the court-appointed interpreter. App. 105-13. PCRA counsel was thereafter appointed for Vializ-Vega, and on April 18, 2008, counsel filed a "no merit letter" pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), requesting leave of court to withdraw.*fn1 The PCRA court granted counsel's motion to withdraw on May 9, 2008, and also notified Vializ-Vega of its intention to dismiss his PCRA petition pursuant to Pennsylvania Rule of Criminal Procedure 907. Over Vializ-Vega's objection, the PCRA court dismissed his PCRA petition on June 9, 2008. Vializ-Vega appealed the dismissal, and the Superior Court affirmed on May 12, 2009.

On June 1, 2009, Vializ-Vega submitted a one-page document styled as a "Pro-se Appe[]llant's Notice of Appeal, Regarding New Matter" to the PCRA Court. App. 190. In the body of the document, Vializ-Vega stated he "would like to seek leave to include a recent, New Matter, (to the PCRA Court)," in light of the Pennsylvania Supreme Court's March 2009 decision in Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009), which he characterized as having provided some "clarification regarding Counsel's failure to 'interview' Witnesses." App. 190. The document went on to state, "IN MY Pro-se PCRA, petition I intend to provide the Name, Address, Age, and Testimony of my Witness(es) that Counsel failed to investigate, or interview." Id. Notwithstanding these references to a forthcoming PCRA petition, the document was styled as a notice of appeal regarding new matter, referred to Vializ-Vega as the "appe[]llant," and specifically stated, "This Motion should be Docketed as . . . A Notice of Appeal, pending the Petitioner's formal Appeal Brief." Id.

The PCRA court received Vializ-Vega's submission on June 24, 2009, and, construing it as a notice of appeal, forwarded it to the Superior Court on June 29, 2009.*fn2 App. 189-91. The docket for Vializ-Vega's case in the Court of Common Pleas does not reflect any further filings by Vializ-Vega in that court following the transmittal of his notice of appeal regarding new matter to the Superior Court. See App. 22-23. Rather, on September 12, 2009, Vializ-Vega filed a notice of appeal and appellate brief in the Superior Court, purporting to appeal the PCRA court's June 24, 2009, "decision" transferring his "subsequent Pro-se PCRA Petition" to the Superior Court without his "knowledge, desire or legal interest." App. 192-98. In the brief accompanying his notice of appeal, Vializ-Vega argued the PCRA court abused its discretion in treating his notice of appeal regarding new matter as a notice of appeal rather than as a PCRA petition, and requested the Superior Court to remand the case "to afford the PCRA Court the opportunity to address the merits of [his] PCRA Petition." App. 195. He also argued the PCRA court violated Pennsylvania Rule of Criminal Procedure 907 by forwarding his submission to the Superior Court without issuing a notice of intent to dismiss advising Vializ-Vega of the defects in the submission. Vializ-Vega asserted his filing was timely under 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(ii) because it was based on four newly discovered exculpatory witnesses whose identities had previously been unknown and unknowable to him, and who "[w]ould have all testified at trial for [Vializ-Vega], and explained his actual innocence and provided an Alibi Defense."*fn3 App. 194-95. Vializ-Vega characterized the underlying claim he wanted the PCRA court to review as one of ineffective assistance of trial and appellate counsel for failing to investigate, interview, present, and preserve the testimony of these witnesses, who were known or should have been known to counsel. App. 194.

In its responsive brief, the Commonwealth agreed it appeared Vializ-Vega intended his notice of appeal regarding new matter to be "a second PCRA petition, although improperly titled," App. 209, but argued remand was unnecessary because the petition was untimely. On October 20, 2009, the Superior Court quashed Vializ-Vega's appeal. Although the court surmised Vializ-Vega's "intent . . . was to file a supplemental petition citing newly decided case law in support of the claim that trial counsel had failed to interview witnesses," the court found that since the trial court docket "evidence[d] no order that would warrant the filing of a new appeal[,] . . . no appeal [could] be taken." App. 213 (citing Pa. R. App. P. 301).

On April 5, 2010, Vializ-Vega filed the instant federal habeas corpus petition and an accompanying legal memorandum. In the petition itself, Vializ-Vega alleges he was denied the right to appeal when the PCRA court sent his June 1, 2009, new PCRA petition to the Superior Court without addressing the merits of his claims. Pet'n 8; see also id. at 13 (alleging the Clerk deprived Vializ-Vega of due process by "fail[ing] to process [his] PCRA and sen[ding] it to the wrong Court"). In the accompanying memorandum, Vializ-Vega argues the PCRA court should have accepted his second PCRA petition as timely because it was filed within 60 days of his discovery of the new evidence and the Pennsylvania Supreme Court decision on which his claims were based. Pet'r's Mem. 1-4, 12. Vializ-Vega also alleges his trial and appellate counsel were ineffective. Id. at 6-10. Although the precise contours of Vializ-Vega's ineffective assistance of counsel claim are not entirely clear from his submission, construing his papers liberally, this Court will treat the petition as raising the same ineffective assistance claim he sought to raise via a second PCRA petition, i.e., that his trial and appellate counsel were ineffective for failing to investigate, interview, present, and preserve the testimony of four exculpatory witnesses whose identifies were unknown and unknowable to Vializ-Vega at the time of trial.


As an initial matter, this Court notes that insofar as Vializ-Vega seeks to challenge the PCRA court's alleged mishandling of his June 1, 2009, submission, such claims of error by the PCRA court are not cognizable on federal habeas review. See Abu-Jamal v. Horn, 520 F.3d 272, 297 (3d Cir. 2008) ("[A]lleged errors in collateral proceedings are not a proper basis for habeas relief."), judgment vacated on other grounds by Beard v. Abu-Jamal, 130 S. Ct. 1134 (2010). Rather, "the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation." Id. (citations omitted); see also Woodard v. Vaughn, No. 07-5316, 2008 WL 2945382, at *4 (E.D. Pa. July 30, 2008) (holding even if state court erroneously treated petitioner's PCRA petitions as untimely second and third petitions instead of as amendments to his first petition, such "procedural error" was "not cognizable on habeas review"). Thus, Vializ-Vega's claims that the PCRA court deprived him of due process or denied him the right to appeal by treating what he intended as a second PCRA petition as a notice of appeal do not present a cognizable basis for habeas relief. Because Vializ-Vega has also alleged a claim of ineffective assistance of counsel, this Court will proceed to address the timeliness of this claim.

A federal habeas petition by a prisoner in state custody is subject to a one-year statute of limitations, which runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...

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