The opinion of the court was delivered by: (Chief Judge Kane)
In this petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Alexis Paul ("Paul") challenges his 2004 conviction and sentence in the Court of Common Pleas of Schuylkill County, Pennsylvania on multiple drug charges and related offenses. He was sentenced, following a jury trial, to eleven years and five (5) months to twenty-two (22) years and ten (10) months in prison. Paul is confined at the State Correctional Institution at Houtzdale, Pennsylvania. The petition is ripe for consideration and, for the reasons that follow, will be denied.*fn1
The relevant factual background of this case, as extracted from the December 19, 2007 opinion of the Pennsylvania Superior Court denying Paul's petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, is as follows:
On the morning of October 3, 2003, members of the Pottsville Police department arrived at a two-room apartment located at 825 West Market Street. The apartment was leased to Paul and the officers were seeking him in response to a domestic disturbance complaint filed by his wife. Specifically, Paul's wife claimed that Paul had displayed a handgun in her presence earlier that morning in their home also located in Pottsville.
Upon arrival at the Market Street apartment, police officers identified themselves, banged on the door and requested entry to the premises. Through a window in the door, the officers observed two males inside the apartment; however, no one opened the door at the officers' repeated requests. While waiting for the inhabitants to open the door for them, the officers heard a great deal of noise emanating from inside the apartment which sounded like furniture was being moved and rearranged. A voice from inside yelled to the officers that there was no one by the name of Alexis Paul living in that apartment and that if they wanted to enter the premises they should get a search warrant. One of the officers proceeded to City Hall to obtain a search warrant for the premise; however, while he was filling out the required paperwork, he was radioed to return to the scene because one of the apartment residents had given the police permission to enter and search the premises.
The remaining officers proceeded to enter the apartment and search for the gun. Paul opened the door, identified himself to the officers and was immediately taken into custody and arrested for the domestic violence incident. Paul gave the officers consent to search the apartment and told them that they would not find the alleged gun they claimed he brandished earlier that day.
While looking for the gun, one of the officers noticed what appeared to be fresh plaster dust on the bathroom floor. He looked up and saw a hole in the ceiling wide enough to conceal a handgun. The officer then reached into the hole, and instead of finding the gun, discovered drugs. Specifically, he found a plastic package of what he suspected to be "crack" cocaine and a separately wrapped plastic package containing a powdery substance, which he believed was powder cocaine. Still looking for the handgun, the same officer proceeded to the kitchen where he saw that the drip pan had been disassembled under the refrigerator. The officer placed his hand under the appliance and discovered additional drugs located there, including three separate plastic baggies filled with matter appearing to be marijuana and two digital scales (one with powder residue). By the door near the kitchen sink, officers examined a loose floorboard and, upon closer inspection, uncovered an additional plastic bag containing marijuana. Behind the refrigerator two clear baggies of marijuana were also found. Finally, several hundred dollars and a cellular phone were found on both Paul and the other occupant of the apartment.
As a result of uncovering the drugs in the apartment, the Commonwealth charged Paul with three counts each of possession with intent to deliver (marijuana, crack and powder cocaine) and simple possession, along with possession of drug paraphernalia and criminal conspiracy for possession with intent to deliver to the other male occupant who was 18 years old at the time. Paul filed a motion to suppress the drug evidence claiming the consent to search the apartment was invalid and challenging the applicability of the concept of constructive possession. The motion was denied.
After a consolidated jury trial, Paul was convicted on all counts; he was subsequently sentenced to 137-274 months' imprisonment, plus $40,000 in fines and restitution, with 245 days' credit for time served. The trial court denied Paul's post-sentence motion which sought modification of his sentence and a judgment of acquittal.
Paul filed a direct appeal after which this Court affirmed his judgment of sentence, save for vacating the sentence on the three counts of simple possession that should have merged for sentencing purposes with the counts of possession with intent to deliver. Paul's subsequent petition for allowance of appeal was denied by our Supreme Court. He then filed a timely pro se PCRA petition; counsel was subsequently appointed and filed an amended petition on Paul's behalf. A hearing was held on the petition; the PCRA court ultimately denied collateral relief. Counsel then sought to withdraw, pursuant to Turner/Finley,*fn2 claiming that there is no basis for pursuing an appeal. The trial court granted counsel's request to withdraw and Paul now appeals pro se. (Doc. No. 19-11 at 3-6, Commonwealth v. Paul, 1572 MDA 2006 (Pa. Super. Dec. 19, 2007.))*fn3
On December 19, 2007, the Pennsylvania Superior Court found no merit to Paul's PCRA petition, and affirmed his conviction and sentence. (Id.) A petition for allowance of appeal filed with the Pennsylvania Supreme Court was thereafter denied on July 24, 2008. (Doc. No. 19-12.) Paul now files the instant petition wherein he raises the following grounds for relief:*fn4
(1) Trial court error in failing to grant his motion to suppress the evidence uncovered from the search of the apartment;
(2) Trial court error in failing to reinstate his direct appeal rights because his appellate counsel was ineffective, was a public defender and was also his trial counsel;
(3) Denial of meaningful review of PCRA petition because counsel failed to address all issues and abandoned Paul for purposes of appeal;
(4) Ineffective assistance of trial counsel in (a) failing to move for a mistrial after a reference was made in the presence of the jury to the fact that Paul was in prison and (b) failing to move for a severance of the Defendants for trial;
(5) Illegal and excessive sentence;
(6) Denial of fair trial based upon lack of impartial jury; and
(7) Failure of the Commonwealth to establish the existence of a conspiracy.
(Doc. No. 1, Pet. at 9-11.)
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, 498-99 (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 petition 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).
To satisfy the exhaustion requirement, a federal habeas petitioner must have presented the facts and legal theory associated with each claim through "one complete round of the State's established appellate review process."*fn5 O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); see also Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). The exhaustion requirement is satisfied if a petitioner's claims are either presented to the state courts directly on appeal from the judgment of sentence, or through a collateral proceeding, such as a PCRA petition. Swanger v. Zimmerman, 750 F.2d 291, 195 (3d Cir. 1984). It is not necessary for a petitioner seeking federal habeas relief to present his federal claims to state courts both on direct appeal and in a PCRA proceeding. Id. However, a petitioner is not deemed to have exhausted the remedies available to him if he has a right under the state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S. 346, 350 (1989). The petitioner bears the burden of demonstrating that he has satisfied the exhaustion requirement. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000)(citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)).
Beyond questions of exhaustion, a federal court may be precluded from reviewing claims under the "procedural default doctrine." Gray v. Netherland, 518 U.S. 152, (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996). The purpose of the procedural default rule is to prevent habeas petitioners from avoiding the exhaustion doctrine by defaulting their claims in state court. Coleman, 501 U.S. at 732.
A state's procedural rules are entitled to deference by federal courts; a petitioner's violation of a state procedural rule may constitute an independent and adequate state law ground for denial of federal review of habeas claims under the procedural default doctrine. Id. at 750. Moreover, violations of a state's procedural rules may constitute an independent and adequate state ground sufficient to invoke the procedural default doctrine even where no state court explicitly has concluded that a petitioner is procedurally barred from raising his claims. Glass v. Vaughn, 65 F.3d 13, 15 (3d Cir. 1995), cert. denied, 516 U.S. 1151 (1996). However, the procedural default doctrine only applies when a state procedural rule is consistently or regularly applied. Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997)(quoting Johnson v. Mississippi, 486 U.S. 578, 588-89 (1988))*fn6 . A petitioner whose constitutional claims have not been addressed on the merits due to procedural default can overcome the default, thereby allowing federal court review, if he or she can demonstrate either: (1) "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law; or (2) failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001); Lines, 208 F.3d at 166.
The United States Court of Appeals for the Third Circuit has instructed that a petition containing exhausted and unexhausted but procedurally barred claims is not a mixed petition requiring dismissal under Rose v. Lundy, 455 U.S. 509 (1982). See Wenger, 266 F.3d at 227. Instead, the Court of Appeals held that the district court should review the merits of the exhausted claims, but must not decide the merits of the claims that are barred under the procedural default doctrine. Id.
Once a court has determined that the exhaustion requirement is met, and therefore review of the issues presented in a habeas petition on the merits is warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). That section states, in relevant part, that exhausted claims that have been adjudicated on the merits by the state courts are subject to review under the standard of whether they are "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(2). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") places the burden on a petitioner to make this showing. Williams v. Taylor, 529 U.S. 362 (2000).
In a recently issued opinion, the United States Court of Appeals for the Third Circuit set forth the following description of the framework for analysis required under § 2254(d):
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, 178 L.Ed.2d 624 (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 ...