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Shawn David Livingston v. David Pitkins

July 23, 2012


The opinion of the court was delivered by: Judge Conaboy


Background This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was initiated by Shawn David Livingston during his confinement at the Laurel Highlands State Correctional Institution, Somerset, Pennsylvania (SCI-Laurel Highlands).*fn1

Named as Respondent is SCI-Laurel Highlands Superintendent David Pitkins. Service of the petition was previously ordered.

Livingston was convicted of possession with intent to deliver cocaine and criminal use of a communication facility following a jury trial in the Adams County, Pennsylvania Court of Common Pleas. Those charges stemmed from Petitioner's arrest at the residence of Jeffrey Flickinger. A summary of facts as established by the Pennsylvania state courts provides that Flickinger began regularly purchasing cocaine from Livingston a/k/a Shorty in November, 2003. On January 16, 2004, members of the Adams County Drug Task Force executed an unrelated search warrant at Flickinger's home during which drug paraphernalia was seized. After being given his Miranda rights, Flickinger admitted to selling cocaine from his home and identified his cocaine source as being a Black individual from New York named Shorty. Flickinger added that he would be willing to contact Shorty and arrange a delivery of cocaine to his residence. After telephoning and telling a person described as being Shorty that he had a buyer seeking an ounce of cocaine at his home, Flickinger informed the authorities that Shorty would be arriving within twenty (20) minutes with the requested cocaine.

The Task Force set up surveillance both inside and outside of Flickinger's residence and two additional calls were placed to Shorty. Within two minutes of the last call, Livingston/Shorty parked a car in front of Flickinger's home and walked to the front porch of the residence. When he stepped inside, officers identified themselves, at which time the Petitioner fled. Livingston was apprehended in a neighbor's yard and taken into custody. A baggie which Petitioner tossed while being chased was recovered and found to contain three (3) individual parcels of cocaine.

Livingston was taken inside the Flickinger home and when he overheard an officer, Detective Hartlaub, express doubt as to whether the substance tossed by Petitioner was actually cocaine, Livingston stated to Hartlaub from another room that the cocaine was real.*fn2 In addition, the number on a cellphone seized from Petitioner matched the number that had been called by Flickinger in an effort to contact Shorty. Livingston also acknowledged that he was a resident of Bronx, New York. Based upon the above factors, Petitioner was arrested and charged with possession with intent to deliver cocaine and criminal use of a communication facility.

Petitioner's privately retained trial counsel filed a pre-trial motion to suppress the contraband seized on January 16, 2004 as well as his statement to Detective Hartlaub. Trial counsel also sought via a motion in limine to preclude introduction of any prior bad acts testimony by Flickinger counsel. Those matters were addressed in a May 21, 2004 pre-trial suppression hearing. By Order dated May 28, 2004, Petitioner's pre-trial motions were denied. A jury trial subsequently commenced on June 10, 2004.

After being convicted on both charges, Petitioner was sentenced on October 25, 2004, to an aggregate six (6) to fifteen (15) year term of imprisonment. Following a direct appeal, Petitioner's conviction and sentence were affirmed by the Pennsylvania Superior Court. See Commonwealth v. Livingston, 888 A.2d 8 (Pa. Super. 2005). The direct appeal asserted that the trial court erred by: (1) not suppressing information and evidence derived from an unauthorized interception of oral communication; (2) allowing admission of statements of prior bad acts made without substantiation by a confidential informant whose reliability was not established; (3) not suppressing statements made by Livingston prior to being given his Miranda warnings;*fn3 (4) determining that there was probable cause to arrest Petitioner without a warrant based upon a confidential informant's statement; and (5) denying Petitioner's pro se motion for modification of sentence. See Doc. 1, p. 3-a.

Petitioner then initiated a pro se action pursuant to Pennsylvania's Post Conviction Relief Act (PCRA).*fn4 Following appointment of counsel, submission of an amended petition, and an evidentiary hearing, the trial court denied the PCRA petition on March 31, 2008. An appeal of that decision was denied by the Superior Court on June 4, 2009. Livingston's PCRA action alleged that trial counsel provided ineffective assistance by: (1) failing to either object to incriminating prior bad acts testimony or request a curative jury instruction; (2) advising Petitioner not to testify; (3) properly litigate issues during the suppression hearing; (4) advising Petitioner to reject a plea bargain; and (5) neglecting to object to an accomplice jury instruction. See Doc. 1, p. 4a.

Petitioner's pending action claims entitlement to federal habeas corpus relief on the grounds that: (1) PCRA counsel was ineffective for failing to file an amended PCRA petition asserting claims of ineffective assistance by trial and appellate counsel; (2) trial counsel provided ineffective assistance for failing to fully apprise Petitioner of the Commonwealth's pre-trial plea offer; (3) trial counsel erred by advising Livingston not to testify at trial; (4) trial counsel was deficient for not objecting to the trial court's accomplice jury instruction; (5) trial counsel was ineffective for not objecting to the introduction of prior bad act testimony; and (6) the cumulative affect of trial counsel's errors denied Petitioner a fair trial. Respondents have filed a response arguing that Livingston is not entitled to relief.*fn5 This matter is ripe for consideration.


Ineffective Assistance of PCRA counsel Collateral relief under the PCRA "permits motions for post-conviction collateral relief for allegations of error, including ineffective assistance of counsel, unlawfully induced guilty pleas, improper obstruction of rights to appeal by Commonwealth officials, and violation of constitutional provisions." Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991).

Respondents contend that Petitioner's pending argument

(Claim 1) that his PCRA counsel was ineffective for failing to file an amended PCRA petition is not properly asserted because it is precluded from consideration by 28 U.S.C. § 2254(i). See Doc. 13, p. 17. § 2254(i) provides the "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." The unambiguous statutory language of § 2254(i) clearly precludes habeas relief for ineffective or incompetence of collateral counsel. Courts considering similar claims have reiterated that ineffectiveness of PCRA counsel cannot be a basis for federal habeas corpus relief. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987); Taylor v. Horn, 504 F.3d 416, 437 n. 17 (3d Cir. 2007).

Accordingly, Petitioner is not entitled to federal habeas corpus relief with respect to his argument (Claim 1) that his PCRA counsel was ineffective for failing to file an amended PCRA petition.

Exhaustion of State Court Remedies

Title 28 United States Code Section 2254(b)(1) provides that an application for a writ of habeas corpus filed on behalf of a person in custody pursuant to the judgment of a State court cannot be granted unless the applicant has exhausted the remedies available in the courts of the State; or there is an absence of available state corrective process; or there are existing circumstances which render the state process ineffective.*fn6 The exhaustion requirement is not a mere formality. It serves the interests of comity between the federal and state systems, by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights. Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004).

The Third Circuit Court of Appeals has stated that "[U]nder 28 U.S.C. § 2254(c), such a petitioner 'shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001).

"A state prisoner is generally barred from obtaining federal habeas relief unless the prisoner has properly presented his or her claims through one 'complete round of the State's established appellate review process.'" Woodford v. Ngo, __ U.S. __, 126 S.Ct. 2378, 2386-87 (2006) (internal citations omitted); O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)(while exhaustion does not require state prisoners to invoke extraordinary remedies, the state courts must be afforded one full opportunity to resolve any constitutional issues via completion of the State's established appellate review process). The Supreme Court in O'Sullivan explained, that state prisoners must "file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State." Id. at 847. The Supreme Court added that, in determining whether a state prisoner has preserved an issue for presentation in a federal habeas petition, it must be determined not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts. See id. at 848.

Fair presentation requires that the "substantial equivalent" of both the legal theory and the facts supporting the federal claim are submitted to the state courts, and the same method of legal analysis applied in the federal courts must be available to the state courts. Evans v. Court of Common Pleas, 959 F. 2d 1227, 1230 (3d Cir. 1992); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). Moreover, to satisfy exhaustion, the state court must be put on notice that a federal claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). The exhaustion requirement is satisfied if the petitioner's claims are presented through a collateral proceeding, such as a petition under the PCRA, and it is not necessary to present federal claims to state courts both on direct appeal and in a PCRA proceeding. Evans, 959 F.2d at 1230.

Respondents acknowledge that Claims Two through Five of Livingston's Petition were raised before the Pennsylvania state courts and "those issues were not procedurally defaulted." Doc. 13, p. 20. Consequently, Respondents concede that "this Court may address the merits of these claims on federal constitutional grounds." Id.

However, with respect to Claim Six (the cumulative affect of trial counsel's errors denied Petitioner a fair trial), they argue that said claim ...

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