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Stauffer v. Coleman

United States District Court, Third Circuit

September 24, 2013

RUSSELL JOSEPH STAUFFER, Petitioner,
v.
BRIAN COLEMAN, Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SUSAN PARADISE BAXTER, Magistrate Judge.

I. RECOMMENDATION

State prisoner Russell Joseph Stauffer has filed a petition for a writ of habeas corpus. [ECF No. 1]. The petition is second or successive and Stauffer has not received from the U.S. Court of Appeals for the Third Circuit an order authorizing this Court to consider it, as required by 28 U.S.C. § 2244(b)(3)(A). Accordingly, it is respectfully recommended that the petition be summarily dismissed for lack of jurisdiction and that a certificate of appealability be denied. See 28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases In the U.S. District Courts.

II. REPORT

A. Background

In a case before the Court of Common Pleas of Erie County at Criminal Docket No. CP-25-CR-2029-1993, a jury found Stauffer guilty of first degree murder. He was age 32 at the time he committed the crime. Commonwealth v. Stauffer, No. 2021 WDA 2012, slip op. at 7 n.6 (Pa.Super. June 3, 2013) ("Appellant concedes that he was thirty-two years old at the time of the murder.") (attached as Ex. 1). In September of 1994, the trial court imposed the mandatory sentence of life imprisonment. The Superior Court of Pennsylvania affirmed his judgment of sentence and the Supreme Court of Pennsylvania denied a petition for allowance of appeal. Id. at 1-2 (citing Commonwealth v. Stauffer, 687 A.2d 861 (Pa.Super. 1996) (unpublished memorandum), appeal denied, 698 A.2d 66 (Pa. 1997)).

On October 24, 2000, Stauffer, through his attorney Stanton D. Levenson, Esq., filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenged his September 1994 judgment of sentence.[1] That case was docketed as Stauffer v. Brennan, 1:00-cv-308 (W.D. Pa.) and assigned to Judge Sean J. McLaughlin, who referred it to Magistrate Judge Francis X. Caiazza. On April 21, 2003, Magistrate Judge Caiazza issued a Report and Recommendation in which he recommended that the petition be denied on the merits.[2] On June 9, 2003, Judge McLaughlin issued a Memorandum in which he adopted the Report and Recommendation as the Opinion of the Court, denied the petition, and a certificate of appealability.[3] The Third Circuit Court subsequently denied a request for a certificate of appealability that Stauffer had filed with it at Appellate Docket No. 03-2930. The U.S. Supreme Court denied a petition for a writ of certiorari on October 12, 2004.

On June 25, 2012, the U.S. Supreme Court decided Miller v. Alabama, ___ U.S. ___ , 132 S.Ct. 2455 (2012). It held that a mandatory sentence of life without the possibility of parole for a juvenile convicted of homicide violates the Eighth Amendment's prohibition of cruel and unusual punishment by failing to allow individualized sentencing that takes into account the youth of the offender and the nature of the crime. Since the issuance of Miller, numerous Pennsylvania prisoners have filed post-conviction motions in state court seeking relief under the holding in that case. In order to avoid any potential problem regarding the expiration of AEDPA's limitations period, they also have filed "protective" petitions for a writ of habeas corpus in federal court and have asked the federal court to stay the federal case pending the outcome of the state court proceeding.

Stauffer is one of those state prisoners who filed a state post-conviction motion claiming that he is entitled to relief under Miller. The state court docket sheets for his state case, which are available for review online at http://ujsportal.pacourts.us, establish that on September 25, 2012, the Court of Common Pleas denied his post-conviction motion as untimely. Stauffer filed a pro se appeal to the Superior Court. On June 3, 2013, the Superior Court issued a Memorandum in which it affirmed the Common Pleas Court's decision. Because he was age 32 when he committed the murder, the Superior Court rejected his contention that Miller applied to his case. Stauffer, No. 2021 WDA 2012, slip op. at 2-7. Stauffer has filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. That petition was pending before that court at Docket No. 309 WAL 2013 at the time of the issuance of this Report and Recommendation.

In the petition for a writ of habeas corpus [ECF No. 1] that Stauffer has filed with this Court, he raises an equal protection claim based on the holding in Miller. He also has filed a motion in which he requests that this Court stay this case while he completes exhaustion of his state court remedies. [ECF No. 3]. Because it is recommended that this case be dismissed for lack of jurisdiction for the reasons set forth below, that motion will be denied by a separate order.

B. Discussion

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(b) mandates that before a state prisoner may file a second or successive habeas corpus petition in which he challenges a judgment of sentence that he previously challenged in a federal habeas action, he must first obtain an order from the court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). See, e.g., Magwood v. Patterson, ___ U.S. ___ , 130 S.Ct. 2788 (2010). Once the prisoner moves for authorization to file a second or successive petition, a three-judge panel of the court of appeals must decide within thirty days whether there is a prima facie showing that the application satisfies § 2244's substantive requirements, which are set forth in § 2244(b)(2). See U.S.C. § 2244(b)(3)(C). AEDPA's allocation of "gatekeeping" responsibilities to the courts of appeals has divested district courts of jurisdiction over habeas petitions that are second or successive filings. See, e.g., Burton v. Stewart , 549 U.S. 147 (2007).

Because in the instant habeas petition Stauffer is once again challenging his September 1994 judgment of sentence, it is subject to the authorization requirements set out at 28 U.S.C. § 2244(b). He has not received from the Third Circuit Court of Appeals permission to file a second or successive petition. Therefore, this Court lacks jurisdiction over the petition. Burton , 549 U.S. at 152-54. It is the practice of this Court to dismiss second or successive petitions, but we will transfer a case if it would promote the interests of justice. A leading federal habeas treatise explains:

The statute provides that the district court shall dismiss a second or successive petition that has not been authorized by the circuit court. 28 U.S.C.A. § 2244(b)(1), (4); Norris v. Konteh , 67 F.Supp.2d 833, 839 n.7 (N.D. Ohio 1999) ("It appears also that transfer of the instant petition pursuant to 28 U.S.C.A. § 1631 would not be in the interest of justice in this case because such transfer would be contrary to 28 U.S.C.A. § 2244(b)(4)"); accord Jackson v. Mitchem , 998 F.Supp. 1375, 1376 (M.D. Ala. 1998) (dismissal rather than transfer was the appropriate way of handling second or successive petition filed in the district court without court of appeals authorization).
Notwithstanding the "dismissal" language in § 2244(b), federal circuit courts have ruled that if the prisoner erroneously files his motion for leave to file a second or successive petition in the district court instead of the federal circuit court (or if the prisoner improperly files a second or successive petition in the district court without first having obtained authorization by the federal circuit), the district court has the option of transferring the motion or petition to the court of appeals. The Second and Sixth Circuits mandate transfer. In re Sims , 111 F.3d 45, 47, 1997 FED App. 0129P (6th Cir. 1997); Liriano v. U.S. , 95 F.3d 119, 122 (2d Cir. 1996), as amended, (Oct. 7, 1996). The First, Third, Fourth, Eighth and Tenth Circuits permit, but do not mandate, transfer. In re Cline , 531 F.3d 1249, 1252 (10th Cir. 2008); Jones v. Braxton , 392 F.3d 683, 691, 60 Fed. R. Serv. 3d 369 (4th Cir. 2004); Robinson v. Johnson , 313 F.3d 128, 139, 54 Fed. R. Serv. 3d 235 (3d Cir. 2002); Boyd v. U.S. , 304 F.3d 813, 814 (8th Cir. 2002) (per curiam); U.S. v. Barrett , 178 F.3d 34, 41 n.1 (1st Cir. 1999). In Cline, the Tenth Circuit stated that a transfer is appropriate if it would be in the interests of justice. Factors district courts should consider in deciding whether to transfer an unauthorized successive claim include "whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction." 531 F.3d at 1252.

Brian Means, Federal Habeas Manual § 11:81 (2013) (emphasis in original), available at Westlaw FEDHABMAN.

In this case, the better course is to summarily dismiss. There is no basis to conclude that the interests of justice would be promoted by transferring this case to the Third Circuit Court, particularly since Stauffer was age 32 when he committed his crime and, therefore, the holding in Miller does not apply to his case.

C. Certificate of Appealability

Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." In Slack v. McDaniel , 529 U.S. 473, 484 (2000), the Supreme Court stated that "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Applying this standard here, jurists of reason would not find it debatable whether the instant petition is second or successive and should be summarily dismissed. Accordingly, a certificate of appealability should be denied.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be summarily dismissed and that a certificate of appealability be denied.

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Stauffer is allowed to file objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman , 637 F.3d 187, 193 n.7 (3d Cir. 2011).

Appeal from the PCRA Order September 25, 2012 In the Court of Common Pleas of Erie County Criminal Division at No.: CP-25-CR-0002029-1993

BEFORE: SHOGAN, J., LAZARUS, J., and PLATT, J.[*]

MEMORANDUM BY PLATT, J. FILED: June 3, 2013

Appellant, Russell J. Stauffer, appeals pro se from the order denying his second petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant's petition is untimely without a proven exception to the statutory time bar. We affirm.

On September 20, 1994, a jury convicted Appellant of first degree murder and aggravated assault for killing his wife, and the court sentenced him to life imprisonment without parole. ( See Appellant's Brief, at 2). This Court affirmed the judgment of sentence on direct appeal, and our Supreme Court denied allowance of appeal, on June 16, 1997. ( Commonwealth v. Stauffer, 687 A.2d 861 (Pa.Super. 1996) (unpublished memorandum), appeal denied, 698 A.2d 66 (Pa. 1997)).

Appellant filed a timely, counseled first PCRA petition on May 19, 1998, which the PCRA court denied on October 16, 1998. This Court affirmed, and our Supreme Court denied allowance of appeal. ( Commonwealth v. Stauffer, 748 A.2d 777 (Pa.Super. 1999) (unpublished memorandum), appeal denied, 759 A.2d 385 (Pa. 2000)).

Appellant filed the instant petition, pro se, on August 10, 2012, [1] which the PCRA court denied, after a notice of intention to dismiss pursuant to Pa.R.Crim.P. 907, and a written response from Appellant, on September 25, 2012. This timely appeal followed.[2]

Appellant raises two questions for our review.

A. Did [the PCRA] court abuse its discretion in ruling that the Supreme Court ruling in Miller [ v. Alabama, 132 S.Ct. 2455 (2012)] has no bearing on adults in Pennsylvania who received mandatory life without parole sentences?
B. Did [the PCRA] court abuse its discretion when it ruled without analyzing Equal Protection as applied to the facts at hand?

(Appellant's Brief, at 1).

Our standard of review is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations omitted).[3] "Questions regarding the scope of the statutory exceptions to the PCRA's jurisdictional time-bar raise questions of law; accordingly, our standard of review is de novo. " Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008) (citation omitted).

"In the PCRA context, jurisdiction is tied to the filing of a timely PCRA petition.... Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition." Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super. 2013) (citations and internal quotation marks omitted).

The PCRA requires that all petitions be filed within one year of the date the judgment of sentence became final unless the petitioner alleges and proves that the failure to raise a timely claim: (1) was the result of interference by government officials; (2) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by reasonable diligence; or (3) the right asserted is a constitutional right that has been recognized by the United States Supreme Court or the Supreme Court of Pennsylvania after the one-year time period, and has been held to apply retroactively. 42 Pa.C.S. § 9545(b)(1). Commonwealth v. Saunders, 60 A.3d 162, 163-64 (Pa.Super. 2013).

Here, Appellant's judgment of sentence became final on Monday, September 15, 1997, ninety days after our Supreme Court denied allowance of appeal and the time to petition the United States Supreme Court for a writ of certiorari expired.[4] See U.S.Sup.Ct. Rule 13. Therefore, Appellant's instant petition, filed on August 10, 2012, almost fifteen years later, is untimely on its face unless Appellant pleads and proves one of the statutory exceptions to the time bar.

We construe Appellant's claims liberally in the interest of justice and judicial economy; however, pro se status generally confers no special benefit on an appellant. See Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005).

Liberally construed, Appellant's brief argues by implication that he is entitled to an exception to the time bar under Miller v. Alabama, supra and its companion case, Jackson v. Hobbs, also at 132 S.Ct. 2455 (2012). ( See Appellant's Brief, at 4). However, Appellant's reliance is misplaced.

Appellant argues, without citation or other support, that "[t]he [United States] Supreme Court in companion cases Miller v. Alabama ... and Jackson v. Hobbs ... recognized juveniles and adults as comprising a single statutory class insofar as offense and punishment are concerned." ( Id. ). Appellant apparently seeks to invoke section 9545(b)(1)(iii):

[T]he right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(iii).

In this appeal, Appellant neither pleads, nor provides supporting argument or citation to pertinent authority, that Miller announces a new constitutional right, and notably, makes no claim that such a right applies to him or other adult offenders retroactively on collateral appeal.[5] Therefore, Appellant has failed to prove that the exception for a constitutional right "held by that court to apply retroactively" pertains. 42 Pa.C.S.A. § 9545(b)(1)(iii). See Commonwealth v. Wojtaszek, 951 A.2d 1169, 1171-72 (Pa.Super. 2008), appeal denied, 963 A.2d 470 (Pa. 2009) (rejecting reliance on time bar exception of Section 9545(b)(iii), since case cited neither announced new constitutional right, nor applied retroactively). Moreover, Miller simply does not support the claim Appellant asserts.

Appellant argues in effect that the constitutional right to equal protection requires that the holding in Miller be applied to him. We disagree. To the contrary, the entire thrust of Miller is that distinct classes of offenders do exist, and that, based on existing lines of controlling caselaw, juveniles can and must be treated differently from adult offenders: "Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." Miller, supra at 2464 (emphasis added). The Miller Court reasoned, in pertinent part, as follows:

Roper [ v. Simmons, 543 U.S. 551, 569 (2005)] and Graham [ v. Florida, 130 S.Ct. 2011 (2010)] establish that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, they are less deserving of the most severe punishments. Those cases relied on three significant gaps between juveniles and adults. First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking. Second, children are more vulnerable... to negative influences and outside pressures, including from their family and peers; they have limited contro[l] over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child's character is not as well formed as an adult's; his traits are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity].

Id. (most citations and internal quotation marks omitted).

Accordingly, Miller does not provide a statutory exception to the time bar. Appellant's argument that Miller mandates that juveniles and adults be treated the same is totally unsupported by the authority cited, and is therefore, legally frivolous.[6] Additionally, Appellant's invocation of the Universal Declaration of Human Rights presents no statutory exception to the time-bar. ( See Appellant's Brief, at 4).[7]

Therefore, Appellant has failed to plead and prove one of the statutory exceptions to the PCRA time bar. The PCRA court properly determined that it had no jurisdiction to review the merits of his claims.

Order affirmed.

Judgment Entered.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PETITION FOR WRIT OF HABEAS CORPUS

Russell J. Stauffer, Petitioner, by his attorney, Stanton D. Levenson, Esquire. moves this Honorable Court pursuant to 28 U.S.C. §2254 for a writ of habeas corpus, and in support thereof, represents as follows:

1. Petitioner's conviction was in the Court of Common Pleas of Erie County, Pennsylvania,

2. The criminal docket number is 2029 of 1993.

3. Sentence was imposed on September 21, 1994.

4. Petitioner was sentenced to a term of life imprisonment.

5. Petitioner was convicted of first-degree murder and aggravated assault arising from the August 25, 1993 killing of his wife, Angela, at the Capri Motel in Erie, Pennsylvania.

6. Petitioner pled not guilty.

7. Petitioner was found guilty by a jury.

8. Petitioner testified at trial.

9. Petitioner appealed from the judgment of conviction.

10. (A) First Appeal

(1) Superior Court of Pennsylvania
(2) Docket number 164 Pgh. 1995
(3) Result: Conviction affirmed on October 15, 1996.
(B) Second Appeal
(I) Supreme Court of Pennsylvania
(2) Docket number 714 W.D.ALLOC. Dkt. 1996
(3) Result: Appeal denied on June 16, 1997.

11. A Petition For Post-Conviction Relief was filed on May 19, 1998.

12. (1) The PCRA petition was filed in the Court of Common Pleas of Erie County. Pennsylvania.

(2) It was a Petition For Post-Conviction Relief.
(3) Grounds raised:
(a) Counsel unreasonably failed to file a motion to suppress evidence seized from Petitioner's motel room.
(b) Counsel unreasonably failed to request a jury instruction on the law applicable to homicide by misadventure.
(c) Counsel unreasonably failed to advise Petitioner of his right to call character witnesses.
(4) An evidentiary hearing was conducted on September 2, 1998.
5. The PCRA petition was denied on October 16, 1998.
6. The denial of this petition was appealed to the Pennsylvania Superior Court which affirmed the trial court's decision on January 6, 2000. A Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court on June 28, 2000.
13. Grounds for relief:

(A) PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL UNREASONABLY FAILED TO FILE A MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS MOTEL ROOM.

The facts in support of this ground appear at Pages 2 and 3 of the Superior Court Opinion.

"Arraigned on September 23, 1993, Appellant filed an omnibus pretrial motion on November 2, 1993 (The Court approved the late filing), challenging his statement to police and moving for a change of venue (ultimately granted). Only on June 9, 1994, some eight months later, did Appellant try to file an amended omnibus pretrial motion rune pro now. seeking to suppress evidence seized from his motel room. The trial court denied this motion the same day. In a letter dated June 21, 1994, Appellant informally asked the Court to reconsider its June 9 denial. Appellant articulated no reason for his delay, and his counsel admitted in the letter quite frankly, for some unexplainable reason, I entirely missed this issue.' By letter dated June 22, 1994, the trial court again denied Appellant's amended motion, finding that Appellant had abandoned the motel premises and that, even had his request to amend the motion been timely, it would be frivolous.'"

Petitioner was prejudiced by counsel's failure to file a motion to suppress evidence because significant evidence seized from the motel room was introduced at trial.

The evidence was seized without a search warrant. Accordingly, had Petitioner been granted a suppression hearing, the Commonwealth would have had the burden of establishing that one of the limited exceptions to the search warrant requirement was applicable to this case. "It is well settled... that a search conducted without a warrant issued upon probable cause is per se unreasonable... subject only to specifically established and well delineated exceptions.'" Coolidge v. New Hampshire , 403 U.S. 443, 454-55.

Counsel's unreasonable failure to file a motion to suppress evidence resulted in the admission of significant evidence against Petitioner. The remedy for counsel's dereliction is to grant Petitioner a suppression hearing. If the Commonwealth, at such a hearing, fails to establish a lawful basis for the seizure of the evidence, Petitioner would be entitled to a new trial.

B. PETITIONER WAS DENIED HIS FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES WHERE THE TRIAL COURT IMPROPERLY HELD THAT HIS MOTION TO SUPPRESS EVIDENCE WAS NOT TIMELY FILED,

On April 2, 1994, Petitioner pled guilty to third-degree murder and aggravated assault. On May 20, 1994, he filed a motion to withdraw his guilty plea. That motion was granted on May 25, 1994, and trial was set for June 3, 1994.

During jury selection on June 3, it was learned that a member of the panel had a newspaper article reporting that Petitioner had withdrawn his guilty plea. A mistrial was thereafter declared and a change of venue was granted. "I.rial was scheduled for September 12, 1994, in Westmoreland County.

On June 9, 1994, six days after the mistrial; fifteen days after the motion to withdraw guilty plea had been granted, and ninety-three days prior to trial, Petitioner tried to file an amended omnibus pretrial motion nuns pro tune, to suppress evidence seized from his motel room. The trial court denied the motion the same day.

The trial court's ruling was clearly erroneous. In Commonwealth v. Throckmorton , 359 A.2d 444, 447 (1976), the Court held:

"Rule 323 does not prohibit the litigation of a suppression motion after the grant of a new trial if there has been no prior determination of the issue. Nothing in the rule limits the Defendant to filing suppression motions prior to his first trial; the rule simply requires that suppression motions be filed after the case has been returned to court or ten days prior to the beginning of the trial session in which the case is listed for trial or, in districts having continuous trial sessions, ten days prior to the date of trial. Thus, Rule 323(b) by its terms, could equally refer to both a retrial and an initial trial, provided that the issue has not yet been determined. Rule 323(j); Pa.R.Crim.P."

See also Commonwealth v. Taggart , 435 A.2d 604 (1981).

By analogy, Petitioner had the right to file his suppression motion either thirty days after the withdrawal of his guilty plea or thirty days after the mistrial declaration.[1] In either event, the motion was timely and should have been heard.

C. PETITIONER WAS DENIED HIS FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AND HIS FIFTH AMENDMENT RIGHT TO DUE PROCESS WHERE THE COURT HELD THAT THE SUPPRESSION ISSUED HAD BEEN PREVIOUSLY LITIGATED.

In his Petition For Post-Conviction Collateral Relief, Petitioner raised inter alia the following issue: "Counsel unreasonably failed to file a motion to suppress evidence seized from Petitioner's motel room." In its order of July 16, 1998, granting Petitioner an evidentiary hearing, the court below limited the hearing to the issue of the effectiveness of counsel "as the suppression issue has already been finally litigated, and therefore, is without merit."

The Court's conclusion that the suppression issue had been "finally litigated" is erroneous. 42 Pa.C.S.A. § 9544 provides:

"(a) Previous litigation. - For purposes of this subchapter, an issue has been previously litigated if:
(2) The highest appellate court in which the Petitioner could have had review as a matter of right has ruled on the merits of the issue; or
(3) It has been raised and decided in a proceeding collaterally attacking the conviction or sentence."

As the Court held in Commonwealth v. Buehl , 658 A.2d 771, 775 (1995): "The purpose of the PCRA is not to provide the Defendant with the means of re-litigating the merits of issues long since decided on direct appeal." As will be demonstrated, this issue has never been "litigated." Accordingly, even though the trial court purported to decide the suppression issue, it wasn't a decision on the "merits."

A search of Petitioner's room at the Capri Motel in Erie, Pennsylvania, was conducted by the police on August 25, 1993, without a search warrant. It is axiomatic that a search without a warrant is per se unreasonable, unless the Commonwealth can establish an exception to the warrant requirement. Coolidge v. New Hampshire , 403 U.S. 443 (1971).

Significant evidence was seized from the motel room and was introduced at trial. Unfortunately, Petitioner's trial counsel failed to include a motion to suppress the evidence seized from the motel in his timely filed omnibus pretrial motion.

As recited infra, the Superior Court, in its opinion on Petitioner's direct appeal, endorsed the trial court's findings of "abandonment" and "frivolousness." Also, as recited infra, the trial court's findings were made without the benefit of a motion or a hearing. Without conducting a hearing, the trial court did not have a legitimate basis to engage in fact finding. Accordingly, the findings of "abandonment" and "frivolousness" were speculative at best. Likewise, the Superior Court's endorsement of those findings was erroneous.

Clearly, Pa.R.Crim.P 323(e) mandates a hearing at which "the Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the Defendant's rights." Pa.R.Crim.P. 323(h)

Petitioner is now in the anomalous position of having been denied the right to file a suppression motion which would have triggered the requirement of the Rule 323(c) hearing, while at the same time, having had the trial court make factual determinations and then rulings of law against him based on those factual determinations. Such a result is patently unfair.

The trial court skipped several critical steps. After his conviction, Petitioner's trial counsel tiled a timely motion for post-conviction relief. The trial court, in its opinion of December 12, 1995, denying post-conviction relief noted that it didn't grant the motion to suppress because it was untimely. (Trial Court Opinion, Page 2)[2] At that point, the trial court should have moved on to the next issue. Instead, the court went on to decide that Petitioner had abandoned the motel room and, therefore, "his first assignment is meritless." (Trial Court Opinion, Page 2).

Since no suppression motion was tiled, it was both erroneous and unfair for the trial court to purport to decide the merits of this issue. Had the Court permitted the Petitioner to file a suppression motion nuns pro tune, issues other than lack of abandonment would have been raised. Petitioner would have argued even if the police were lawfully in his motel room, they were, nonetheless, required to obtain a search warrant before seizing any of the evidence in question. Petitioner would have also argued that sonic of the items were not in plain view.

An evidentiary hearing serves to sharpen the issues raised and sometimes results in the development of unforeseen issues. Had an evidentiary hearing been conducted, Petitioner would have presented evidence through the testimony of his brother, harry Stauffer, his father, Charles Stauffer, and the presentation of the 911 tape that he did not abandon the motel room. He would have also presented evidence that some of the items seized were not in plain view, thereby requiring a warrant for their seizure.

To decide these important constitutional issues without an appropriate motion and without an evidentiary hearing was clearly erroneous. Accordingly, that issue was not "finally litigated."

D. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL UNREASONABLY FAILED TO REQUEST A JURY INSTRUCTION ON HOMICIDE BY MISADVENTURE WHERE THAT WAS PETITIONER'S SOLE DEFENSE.

In its opinion denying Petitioner's PCRA petition, the court below did "... agree that the claim has arguable merit. The Petitioner's testimony would have supported an instruction on homicide by misadventure." (Trial Court Opinion. Page 2). The Court, however, denied the claim funding that counsel's "... decision was based on a trial strategy intended to benefit his client." (Trial Court Opinion, Page 2).

The Law in Pennsylvania is settled that a PCRA Petitioner must not only demonstrate that the issue underlying the ineffectiveness claim has arguable merit, but, also that counsel's omission did not have a "reasonable basis." Commonwealth v. Peterkin , 649 A.2d 121 (1994).

To satisfy this prong of the test, Petitioner must prove that counsel's strategic decision was "so unreasonable that no competent lawyer would have chosen it, " Commonwealth v. Fowler , 642 A.2d 517 (1994), or that the "alternatives not chosen offer a potential for success substantially greater than the tactics utilized." Commonwealth v. Clark , 626 A.2d 154, 157 (1993).

At the evidentiary hearing, trial counsel testified that it was his strategy to concede involuntary manslaughter in order to avoid a homicide conviction (36a)[3] Unfortunately, the defense of homicide by misadventure was hardly considered. On the evening prior to jury selection, trial counsel's co-counsel raised the issue of homicide by misadventure for the first time. (37a & 38a). Based upon Petitioner's version of the incident, co-counsel believed homicide by misadventure was applicable (37a). This was the one and only time this defense was discussed (37a).

Interestingly, trial counsel believed Petitioner's testimony was consistent with homicide by misadventure, (41a) and that he could have gotten the instruction based upon petitioner's testimony alone (44a).

Trial counsel testified that he did not want to argue the defense of homicide by misadventure to the jury for fear of losing credibility (44a & 45a). This was because the medical testimony appeared to be inconsistent with the defense (44a & 45a).

It is critical here to understand that Petitioner's testimony was only consistent with homicide by misadventure. At no time did he admit any intent to harm his wife, much less kill her. Thus, while counsel argued only manslaughter to the jury, Petitioner's testimony supported only accident. Therefore, without a charge on homicide by misadventure, the jury had no framework within which to credit and apply Petitioner's testimony. Without such an instruction, his testimony was meaningless and his defense was a nullity. Accordingly, the alternative not chosen-accidental homicide-not only "offered a potential for success substantially greater than the tactics utilized, " Commonwealth v. Clark, supra ., it offered the only potential for success. Under the circumstances it is no surprise that the jury convicted Petitioner of first-degree murder.

In addition, counsel's strategic decision was "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Fowler, supra . Even assuming Arguendo that counsel's decision not to argue homicide by misadventure was reasonable, his failure to request a jury instruction was not.

Having the jury instructed on homicide by misadventure would have given meaning to Petitioner's testimony and would have also offered the potential for acquittal. At the same time, merely requesting the instruction would not have required counsel to argue the defense to the jury. Thus, Petitioner could have only benefited from such an instruction.

Counsel's failure to request an instruction which could have only benefited his client was a decision "so unreasonable that no competent lawyer would have chosen it." Commonwealth v. Fowler, supra .

14. All of the grounds for relief herein asserted have been raised in the various state courts.

15. Petitioner does not have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack.

16. Petitioner was represented at trial and on direct appeal by Gene P. Placidi, 305 W. 611" Street, Erie, PA 16507.

17. Petitioner was sentenced on the murder conviction only. The Court held that the aggravated assault conviction merged with the murder conviction for sentencing purposes.

18. Petitioner has no/Inure sentence to serve after he completes his sentence imposed by the judgment under attack.

WHEREFORE, Petitioner prays that the Court grants him the relief to which he is entitled in this proceeding.

DECLARATION

1, Russell Stauffer, hereby declare under penalty of perjury that the foregoing is true and correct.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus be denied and that a certificate of appealability be denied.

II. REPORT

The Petitioner, Russell J. Stauffer (Stauffer), a state prisoner incarcerated at the State Correctional Institution at Albion, Pennsylvania, has filed a Petition for a Writ of Habeas Corpus pursuant to the provisions of 28 U.S.C. § 2254. He raises the following claims for relief in his Petition:

1. The Petitioner was denied his Sixth Amendment right to the effective assistance of counsel where trial counsel unreasonably failed to file a motion to suppress evidence seized from his motel room.
2. The Petitioner was denied his Fourth Amendment right to be free from unreasonable searches and seizures where the trial court improperly held that his motion to suppress evidence was not timely filed.
3. The Petitioner was denied his Fourth Amendment right to be free from unreasonable searches and seizures and his Fifth Amendment right to due process where the court held that the suppression issue had been previously litigated.
4. The Petitioner was denied his Sixth Amendment right to the effective assistance of counsel where trial counsel unreasonably failed to request a jury instruction on homicide by misadventure where that was the Petitioner's sole defense.

A. Relevant Facts and Procedural History

The relevant facts, taken from the Pennsylvania Superior Court's October 15, 1996 Opinion, are as follows. Shortly after 5:00 a.m. on August 23, 1993, Stauffer called 911 seeking paramedic assistance at the Capri Motel where he and his wife, the victim, Angela Stauffer, were registered as guests. When the paramedics arrived they found the Petitioner's brother, Harry Stauffer, administering CPR to the victim who was naked and bruised. Stauffer had left the motel and was on his way to his father's house in Pittsburgh when the paramedics arrived. The paramedics were unable to resuscitate the victim who was pronounced dead on arrival at the hospital due to a transected liver, the result of blunt force trauma. The paramedics contacted the Erie Police Department who went to the motel, found the motel room door ajar, and secured and searched the premises without first obtaining a search warrant. Stauffer never returned to the motel room.

Sometime thereafter, Stauffer returned to Erie and was arrested and charged with the murder of his wife. On April 21, 1994, he pleaded guilty to third degree murder and aggravated assault. Prior to sentencing, on May 24, 1994, Stauffer withdrew his guilty plea. Due to the extensive publicity, the venue of the trial was moved to Westmoreland County, Pennsylvania. On September 21, 1994, Stauffer was found guilty of murder in the first degree and received the mandatory sentence of life imprisonment without the possibility of parole.

The Petitioner filed a timely notice of appeal wherein he raised the following issues for review:

1. The Court erred by failing to grant his motion to suppress all of the evidence seized from his motel room.
2. The Erie District Attorney's Office should have been disqualified for having William DePlanchett as a detective when he formerly was hired by the Defendant as an investigator.
3. The verdict was not supported by sufficient evidence.
4. The Petitioner's statements to witnesses Nancy Allan and Tammy Nance should have been excluded as irrelevant and hearsay.
5. The testimony of Bill Kuzmin and Harry Stauffer concerning physical abuse witnessed by them should have been excluded as irrelevant.
6. It was error to allow the testimony of witnesses that Angela Stauffer said she was still in love with Dr. Jay and not the defendant.
7. The forensic scientist John Robertson did not testify to a reasonable degree of medical certainty that the scuff marks on the victim's clothing were caused by the Defendant's boot.
8. The ceiling tile, which had blood on it, should not have been admitted into evidence.
9. A mistrial should have been granted because the Commonwealth mentioned in its opening statement that blood was found on the toe of one of the Defendant's boots after stipulating that that evidence would not be raised.
10. The court erred in failing to recuse itself after calling the Defendant a liar when he withdrew his guilty plea.
11. The jury should have been instructed that a verdict of first degree murder results in a mandatory life sentence.

In an Opinion dated December 12, 1995, the Trial Judge, the Honorable Michael T. Joyce, denied the Petitioner's claims for relief. The Pennsylvania Superior Court affirmed the judgment of the trial court on October 15, 1996. Stauffer's Petition for Allowance of Appeal was denied by the Supreme Court of Pennsylvania on June 16, 1997.

On May 19, 1998, the Petitioner filed a petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §9542, wherein he raised the following issues.

1. Trial counsel rendered ineffective assistance by failing to file a timely motion to suppress.
2. Trial counsel rendered ineffective assistance by failing to request a jury instruction on the defense of homicide by misadventure.
3. Trial counsel rendered ineffective assistance by tailing to advise the Petitioner on his right to call character witnesses.

On September 2, 1998, the PCRA court held an evidentiary hearing with respect to Stauffer's claims of counsel's ineffectiveness. On October 15, 1998, the court denied the Petitioner's PCRA Petition. He then filed a timely Notice of Appeal and on October 26, 1999, the Superior Court affirmed the order of the PCRA Court. On June 28, 2000, the Supreme Court of Pennsylvania denied Stauffer's timely filed Petition for Allowance of Appeal.

Stauffer's counseled petition for habeas corpus was docketed as filed in this court on October 24, 2000. Parenthetically, after reviewing the response to this court's December 2002 Order, it has been determined that the Stauffer's petition was filed within two days of the expiration of the one-year limitations period. See 28 U.S.C. § 2244(d)

B. Exhaustion Requirement

The provisions of the federal habeas corpus statute found at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To comply with the exhaustion requirement, a state prisoner first must have fairly presented his constitutional and federal law issues to the state courts through direct appeal, collateral review, state habeas proceedings, mandamus proceedings, or any other available procedures which provide for judicial review. See, e.g., Castille v. Peoples, 489 J.S.: 346, 351 (1989); Doctor v. Walters , 96 F.3d 675, 678 (3d Cir. 1996); Burkett v. Love , 89 F.3d 135, 137 (3d Cir. 1996). Moreover, a petitioner must present every claim raised in the federal habeas petition to the state's trial court, intermediate appellate court and highest court before exhaustion will be considered satisfied. O'Sullivan v. Bcerckel , 526 U.S. 839 (1999). The petitioner has the burden of establishing that the exhaustion requirement has been satisfied. Ross v. Petsock , 868 F.2d 639, 643 (3d Cir. 1989); O'Halloran v. Ryan , 835 F.2d 506, 509 (3d Cir. 1987).

Stauffer's claims were presented to all three levels of the Pennsylvania state courts through the direct appeal process and through his PCRA proceeding. Consequently, this Court will proceed to review the merits of his claims.

C. Standard of Review

Section 2254 of the federal habeas corpus statute sets out the standard for federal court review of state court criminal determinations. 28 U.S.C. 2254. Specifically, a federal court must accord a presumption of correctness to a state court's factual findings, which presumption a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e). Where a state court's factual findings are not made explicit, a federal court's "duty is to begin with the [state] court's legal conclusion and reason backward to the factual premises that, as a matter of reason and logic, must have undergirded it." Campbell v. Vaughn , 209 F.3d 290, 289 (3d Cir. 2000). In determining the precise implicit factual findings a state court made in reaching a conclusion, a federal court must infer that the state court applied federal law correctly. Id . (citing Marshall v. Lonberner , 459 U.S. 422, 433 (1982)).

Moreover, a federal court may not issue the writ unless it concludes that the state court's adjudication resulted in a decision that was "contrary to, " or 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). In Williams v. Taylor , 529 U.S. 362 (2000), Justice O'Connor, writing the opinion of the Court in Part discussed the independent meanings of the "contrary to" and "unreasonable application" clauses contained within section 2254(d)(1).

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially in-distinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams , 529 U.S. at 411-13.

The Supreme Court further held that a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable. Id. at 409. "Under §2254(d)(1)'s unreasonable application clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. These standards apply also to mixed questions of fact and law, such as whether trial counsel provided effective assistance of counsel. Werts v. Vaughn , 228 F.3d 178, 204 (3d Cir. 2000), cert. denied, 121 S.Ct. 1621 (2001). Stauffer's claims will be reviewed in accordance with these standards.

D. Failure to File Suppression Motion - Ineffective Assistance of Counsel

The Petitioner's first claim is that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel failed to file a timely suppression motion with respect to evidence that was seized from the motel room where the body of the victim was found. The Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial." Lockhart v. Fretwell , 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington , 466 U.S. 668, 684 (1984)).

Thus the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.

Fretwell , 506 U.S. at 369 (citing United States v. Cronic , 466 U.S. 648, 658 (1984)). See also Kimmelwan v. Morrison , 477 U.S. 365, 374 (1986) (the essence of a claim alleging ineffective assistance of counsel is this: whether counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect).

The Supreme Court has formulated a two-part test for determining whether counsel rendered constitutionally ineffective assistance: 1) counsel's performance was unreasonable; and 2) counsel's unreasonable performance actually prejudiced the defense. Strickland , 466 U.S. at 687. To determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to judge counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct. Strickland , 466 U.S. at 690. A petitioner who claims that he or she was denied effective assistance of counsel carries the burden of proof. Cronic, 466 U.S. at 638.

The first prong of the Strickland test requires a defendant to establish that his or her attorney's representation fell below an objective standard of reasonableness by committing errors so egregious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland , 466 U.S. at 688. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the totality of the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689. The question is not whether the defense was free from errors of judgement, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place. Id.

The second prong requires a defendant to demonstrate that counsel's errors deprived him or her of a fair trial and that the result was unfair or unreliable. Strickland , 466 U.S. at 689. To prove prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland , 466 U.S. at 694. A "reasonable probability" is one that is sufficient to undermine confidence in the outcome. Id.

In at least one instance, the Supreme Court has recognized that counsel may provide ineffective assistance by failing to pursue a pretrial motion. In Kimmelman v. Morrison , 477 U.S. 365 (1986), the Court determined that a habeas petitioner could raise a claim of ineffective assistance when his trial counsel failed to file a timely pre-trial motion to suppress evidence allegedly obtained in violation of the Fourth Amendment. Notwithstanding, the Court instructed that the mere failure to file a timely suppression motion does not constitute per so ineffective representation. Kimmelman , 477 U.S. at 383. To demonstrate actual prejudice under the second prong of the Strickland Lest, a habeas petitioner must prove that the Fourth Amendment claim. is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. Kimmelman , 477 U.S. at 375.

Here, Stauffer's claim is based on the introduction during his trial of evidence seized from his motel room, which was the scene of the murder. As already explained, the Petitioner must establish some prejudice that resulted from his counsel's conduct in order to warrant federal habeas relief. Sec Strickland , 466 U.S. at 697 (holding that the court need not determine whether counsel's performance was deficient before examining the question of whether the defendant suffered any prejudice as a result of the alleged deficiencies). That said, to prevail here Stauffer first must show that a motion to suppress based on a warrantless entry would have been meritorious if brought in the first instance by his trial counsel. The state court concluded that a motion seeking to suppress evidence -assuming that it had been filed- would have been denied because Stauffer did not have a legitimate expectation of privacy in the motel room under the Fourth Amendment because he had abandoned the premises.

On federal court review, my role is only to review the question of whether the state court's determination was either contrary to or an unreasonable application of clearly established federal law as determined by Supreme Court precedent.

The Fourth Amendment of the United States Constitution assures people the right to be secure in their persons, houses, papers, and effects by protecting against "unreasonable" searches and seizures.[1] In order to effectuate the rights secured by the Fourth Amendment, the judiciary created the "exclusionary rule" as a means to deter the frequency of Fourth Amendment violations. Under the exclusionary rule, the government is barred from using physical evidence that it obtained through an illegal search or seizure as substantive evidence of guilt in its case-in-chief. See United States v. Leon , 462 U.S. 897, 906 (1984;; United States v. Havens , 446 U.S. 620, 628 (1980).

Under the circumstances here Stauffer cannot prevail on his ineffective assistance claim under the Fourth Amendment because the Commonwealth did not engage in any unreasonable search or seizure to gain access to the evidence it secured in the motel room. Although a motel room can be the object of Fourth Amendment protection as much as a person's home, Hoffa v. United States , 385 U.S. 293, 301 (1966), Fourth Amendment protection is dependent on the right to private occupancy of the room because, at the conclusion of the rental period, the guest loses his or her right to use the room and any associated privacy. United States v. Croft , 429 F.2d 884, 887 (10th Cir. 1970). Thus, while the Supreme Court has recognized that a motel guest has a legitimate expectation of privacy in his or her motel room, Stoner v. State of California , 376 U.S. 483 (1964), the federal courts agree that if a defendant abandons his or her interest in his or her motel room and its contents, he or she no longer has any legitimate expectation of privacy and is therefore precluded from challenging the search of the room on Fourth Amendment grounds. See, e.g., Abel v. United States , 362 U.S. 217, 241 (1960) (search of defendant's hotel room after he had checked out and paid bill did not violate Fourth Amendment); United States v. Caballero-Chavez , 260 F.3d 863, 866 (8th Cir. 2001) (search of hotel room after guests denied staying at the hotel did not violate the Fourth Amendment); United States v. Alvarez , 6 F.3d 287, (5th Cir. 1993), cert. denied, 511 U.S. 1010 (1994); United States v. Barlow , 17 F.3d 85, 88 (5th Cir.1994) ("One cannot manifest a reasonable expectation of privacy in an item once it has been abandoned."); United States v. Sledge , 650 F.2d 1075 (1981) (holding that warrantless search of defendants' apartment was justified where officers had reasonable grounds to conclude that premises had been abandoned so that authority to permit entry reverted to landlord even though defendants had a subjective or undisclosed intent to return); United States v. Akin , 562 F.2d 459 (7th Cir.1977) (holding that warrantless search of hotel room was proper where defendant abandoned the room prior to the search as evidenced by open door and no evidence of luggage), cert. denied, 435 U.S. 933 (1978).

Whether property has been abandoned is a question of fact. Caballero-Chavez , 260 F.3d at 866. In conducting a review, courts look to the totality of the circumstances including the question of whether the suspect physically relinquished the property. Id. (internal quotation and citation omitted). See also United States v. Tuqwell , 125 F.3d 600, 602 (8th Cir.1997) (noting that abandonment is determined on the basis of the objective facts available to the investigating officers, not on the basis of the defendants' subjective intent.), cert. denied, 522 U.S_ 1061 (1958); United States v. Minker, 313 F.2d 632 (3d Cir.) (holding that abandonment raises questions of fact and intent of the person who allegedly abandoned the property), cert. denied, 372 U.S. 953 (1962).

Here, based on the trial testimony, the Superior Court determined that when the police arrived at the Capri Motel, Stauffer was on his way to Pittsburgh en route to his father's house. The Superior Court further found that the Petitioner never made any attempt to return to the motel. Moreover, all of the evidence taken from the motel room was in plain view; nothing was found in any locked container or closed suitcase. "When a federal court reviews a state court's findings of fact, its decision must stand unless it was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding." Lam v. Kelchner , 304 F.3d 256, 263 (3d Cir. 2002) (citing 28 O.S.C. 22.54(d)(2)). The factual findings made by the Superior Court are supported by the record. More importantly, Stauffer has not produced any evidence, let alone clear and convincing proof, to dispute the factual findings made by the court. Ultimately, after all is said, as to this claim his failure to meet his burden strikes the death knell in his federal habeas petition.

Based upon its factual findings, the Superior Court concluded that Stauffer had abandoned the motel room and, therefore, no longer had any legitimate expectation of privacy sufficient to invoke any Fourth Amendment protections. On habeas review, the Superior Court's decision remains to be the law in this case unless it is "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 26 J.S.C. § 2254(d)(1). As recently stated by the Court of Appeals for the Third Circuit:

The Supreme Court has provided authoritative guidance on how federal courts are to review legal and mixed determinations under § 2254(d) (1). See Williams v. Taylor , 529 J.S. 362, 413 (2000). A state-court decision is "contrary to" the Supreme Court's clearly established precedent "if the state court applies a rule that contradicts the governing law set forth in (Supreme Court] cases." Id. at 405. A decision is also contrary if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Id. at 406. The "unreasonable application" standard addresses a different part of the court's analysis. It allows habeas relief when the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. This standard will be met if the "state court's application of clearly established federal law was objectively unreasonable." Id. at 409. It is not, however, met by a merely "incorrect application of federal law." Id. at 410.

Lam , 304 F.3d at 263.

With respect to Stauffer's counseled habeas corpus petition, he has not identified any authority which shows that the Superior Court's decision is contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States as is required under 28 U.S.C. 2254(d)(1). In fact, the authority cited and relied on by this Court, as discussed supra, shows that the Superior Court's determination is wholly consistent with other decisions reached by the federal courts. Simply stated, Stauffer has not demonstrated that he would have prevailed had the trial court held a suppression hearing with respect to the evidence seized from his motel room. Moreover, he has failed to show that it is more likely than not that his conviction would not have occurred had the evidence been excluded. Consequently, he has not demonstrated that he is entitled to habeas corpus relief with respect to his counsel's failure to file a timely motion to suppress the evidence seized from the motel room.

E. Timeliness of Suppression Motion

Next, Stauffer claims that he was denied his Fourth Amendment right to be free from unreasonable searches and seizures because the trial court improperly held that his motion to suppress evidence was not timely filed. First, as stated above, the Petitioner has not produced any credible evidence which demonstrates that his Fourth Amendment rights were violated by the search of his motel room. Second, he has not alleged any basis for federal habeas corpus relief with respect to his claim.

A state prisoner may seek federal habeas corpus relief only if he or she is in custody in violation of the Constitution or federal law. Smith v. Phillips 455 U.S. 209 (1982) ; Geschwendt v. Ryan , 967 F.2d 877 (3d Cir.), cert. denied, 506 U.S. 977 (1992); Zettlemoyer v. Fulcomer , 923 F.2d 284 (3d Cir.), cert. denied, 502 U.S. 902 (1991). Stated differently, a writ of habeas corpus can be granted under 28 O.S.C. § 2254(a) only on the basis of some transgression of federal law which is binding on the state courts. Engle v. Isaac , 456 U.S. 107, 119 (1982). Also, federal habeas corpus relief cannot be based on violations of state law or state procedural rules. Id. Thus, habeas relief is not available whenever a state prisoner merely alleges that a state law or procedural rule is contrary to general notions of fairness, unless the Constitution or other federal law specifically protects against the alleged unfairness or guarantees adherence to a procedural right in the state courts.

In his federal petition Stauffer argues that the trial court erred by misapplying former Pennsylvania Rule of Criminal Procedure 323.[2] Because the Petitioner has raised this question as an issue of state law, he is not entitled to habeas corpus relief with respect to this claim. Moreover, to the extent that he is attempting to raise a Fourth Amendment claim, it is precluded under the doctrine set out by the United States Supreme Court in Stone v. Powell .

From an historical perspective as viewed by the Supreme Court, the Fourth Amendment guarantee against unreasonable searches and seizures was primarily a reaction to the evils associated with the use of the general warrant in England and the writs of assistance in the Colonies and was intended to protect the sanctity of a person's home and the privacies of life from searches under unchecked general authority. Stone v. Powell 428 U.S. 465 , 483 (1976). In order to protect against future violations of the Fourth Amendment, the judiciary created an "exclusionary rule, " which allows defendants to seek exclusion at trial of evidence obtained by police officers in violation of the Fourth Amendment. James v. Illinois , 493 U.S. 307 (1990). Thus, the "exclusionary rule" is not a matter of a constitutional right; instead, it is a judicially created means of effectuating the rights secured by the Fourth Amendment by prohibiting the use of illegally-obtained evidence in the government's direct case as substantive evidence of guilt. United States v. Havens , 446 O.S. 620, 628 (1980).

Consequently, the Supreme Court has held that the exclusionary rule is not a basis for habeas relief if the state afforded the defendant a full and fair opportunity to litigate his Fourth Amendment claim. Stone v. Powell , 428 U.S. 465 (1976).[3] Parenthetically, unable to resist its urge not to quote substantial portions of opinions in support of its findings, the court in this instance will deviate from its normal practice and quote a large part of the Supreme Court's opinion in Stone because of its relevance to Stauffer's claim. The applicable quotation in Stone follows:

A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty. Application of the rule thus deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice. These long-recognized costs of the rule persist when a criminal conviction is sought_ to be overturned on collateral review on the ground that a search-and-seizure claim was erroneously rejected by two or more tiers of state courts.
Evidence obtained by police officers in violation of the Fourth Amendment is excluded at trial in the hope that the frequency of future violations will decrease. Despite the absence of supportive empirical evidence, we have assumed that the immediate effect of exclusion will be to discourage law enforcement officials from violating the Fourth Amendment by removing the incentive to disregard it. More importantly, over the long term, this demonstration that cur society attaches serious consequences to violation of constitutional rights is thought to encourage those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.
We adhere to the view that these considerations support the implementation of the exclusionary rule at trial and its enforcement on direct appeal of state-court convictions_ But the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs. To be sure, each case in which such claim is considered may add marginally to an awareness of the values protected by the Fourth Amendment. There is no reason to believe, however, that the overall educative effect of the exclusionary rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions. Nor is there reason to assume that any specific disincentive already created by the risk of exclusion of evidence at trial or the reversal of convictions on direct review would be enhanced if there were the further risk that a conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant. The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal. Even if one rationally could assume that some additional incremental deterrent effect would be presented in isolated cases, the resulting advance of the legitimate goal of furthering Fourth Amendment rights would be outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.
In sum, we conclude that where the State has provided an opportunity for full and Lair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.

Stone , 428 U.S. at 490-494 (internal quotations and citations omitted).

The crucial question to be answered when a state prisoner raises an exclusionary rule argument in a federal habeas petition is whether the petitioner was afforded an opportunity for a full and fair litigation of his claim in the state proceedings. If the existing state practice provided the habeas petitioner with a procedural vehicle for raising his or her claim, the district court need not inquire further, absent some allegation that the petitioner was unfairly prohibited from taking advantage of this opportunity. See, e.g., Doleman v. Muncy , 579 F.2d 1258, 1264-1265 (4th Cir.1978).

The Stone habeas preclusion applies to a state court error in deciding the Fourth Amendment claim, Singletary v. Frey , 793 F.2d 212 (8th Cir.), cert. denied, 479 U.S. 934 (1986), reh'g denied, 479 U.S. 1047, and to a state court's determination that a violation of a habeas petitioner's Fourth Amendment rights constituted harmless error. Gilmore v. Marks , 799 F.2d 51 (3d Cir. 1986) (rejecting argument that erroneous determination of habeas petitioner's Fourth Amendment claim overcomes Stone because that claim is really a due process violation), cert. denied, 479 U.S. 1041 (1987)). Moreover, Stone applies where a petitioner fails to avail himself or herself of available procedures for invoking the protections of the exclusionary rule despite the fact that no state hearing was ever held on his or her Fourth Amendment claims. See, e.g., Brunson v. Higgins , 708 F.2d 1353 (8th Cir. 1983); Hubbard v. Jeffes 653 F.2d 99 (3d Cir. 1981) ; United States ex rel. Maxey v. Morris , 591 F.2d 386 (7th Cir. 1979); Doleman v. Muncy , 579 F.2d 1258 (4th Cir. 1978); Caver v. Alabama , 577 F.2d 1188 (5th Cir. 1978).

Thus, a federal court may not reexamine: 1) a state court's determination that no Fourth Amendment violation occurred; 2) a state court's determination that a Fourth Amendment violation did occur; 3) a state court's determination that a Fourth Amendment violation occurred but introduction of its fruits was harmless; or 4) a state court's determination that a motion to suppress was untimely filed.

In reviewing Stauffer's claim, the trial court determined that his pre-trial motion to suppress the evidence was untimely filed under Pennsylvania Rule of Criminal Procedure 323. In addition, the Superior Court determined that there was no violation of the Fourth Amendment because the Petitioner had abandoned the premises prior to the search by the Eric police detectives. Under the Supreme Court doctrine announced in Stone, this Court is precluded from reviewing the Pennsylvania Superior Court's determinations. Consequently, Stauffer has failed to demonstrate that he is entitled to habeas corpus relief with respect to his second claim.

F. Failure to Conduct a Hearing

In his third claim, Stauffer claims that he was denied his Fourth Amendment right to be free from unreasonable searches and seizures and his Fifth Amendment right because the PCRA court held that the suppression issue had been previously litigated without conducting a suppression hearing. Again, the Petitioner is attempting to secure federal habeas corpus relief on the basis of the state court's alleged misinterpretation of Pennsylvania state law and Pennsylvania state procedural More importantly, this issue clearly is precluded from habeas relief under Stone already referred to a great length supra. Consequently, Stauffer has again failed to demonstrate that he is entitled to habeas corpus relief with respect to his third claim.

G. Jury Instruction on Homicide by Misadventure

The Petitioner's fourth and final claim is that he was denied his Sixth Amendment right to the effective assistance of counsel because his trial counsel unreasonably failed to request a jury instruction on homicide by misadventure. Stauffer raised this claim in his PCRA proceeding and hearings were held wherein trial counsel testified that he had made a strategic decision to present a defense based on mitigation in an attempt to win a manslaughter verdict rather than be exposed more directly to a murder conviction. He further testified that he believed that the medical testimony -such as the fact that the victim would have had to he struck by a vehicle traveling at thirty-five miles per hour to have sustained the injuries caused by the Defendant- was inconsistent with the defense of homicide by misadventure.

The Supreme Court of Pennsylvania has explained the defense of homicide by misadventure as follows.

Homicide by misadventure (which is excusable) is the accidental killing of another, where the slayer is doing a lawful act, unaccompanied by any criminally careless or reckless conduct. Three elements enter into the defense of excusable homicide by misadventure: (1) The act resulting in death must be a lawful one; (2) It must be done with reasonable care and due regard for the lives and persons of others; and (3) the killing must be accidental and not intentional or without unlawful intent, or without evil design or intention on the part of the slayer. All these elements must concur and the absence of any one of them will involve in guilt. Even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act, such as pointing or presenting a gun, pistol or other firearm at another person in such a manner as to constitute an offense under the Laws of the state, or unlawfully striking another with an intent to hurt, although not with an intent to kill, or driving an automobile at an unlawful rate of speed.

Commonwealth v. Jackson , 464 Pa. 292, 295-96, 346 A.2d 746, 747 (1975) (internal quotation and citation omitted). In order to be entitled to an instruction on homicide by misadventure, the act which causes death must be lawful, done with reasonable care and with due regard for the Lives of others; it must also be an accident without design or intent. Commonwealth v. Duffy. 355 Pa.Super. 145 , 512 A.2d 1253, 1260 (1986), appeal denied, 514 Pa. 641, 523 A.2d 1130 (1987). As stated elsewhere here, Stauffer's counsel testified that his trial strategy was to design his defense in a manner which focused the jury on a manslaughter offense rather than the crime of murder, especially a murder in the first degree.

A person may be guilty of voluntary manslaughter under Pennsylvania law if, at the time of the killing, he or she acted under a sudden and intense passion resulting from serious provocation by the victim. 18 Pa. Cons. Stat. 2503(a); Commonwealth v. Walker , 540 Pa. 80, 656 A.2d 90, 95-96, cert. denied, 516 U.S. 854 (1995). Stauffer's trial counsel further testified at the PCRA hearing that, based on his experience as a criminal defense attorney, he believed that presenting two conflicting defenses, i.e., homicide by misadventure and homicide by manslaughter, would have adversely affected his client's and well as his own credibility with the jury. In light of defense counsel's testimony, the PCRA court determined that he had a reasonable trial strategy for deciding not to request a jury instruction on homicide by misadventure.

When reviewing the reasonableness of counsel's performance the court must "indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Berryman v. Morton , 100 V.3d 1089, 1094 (3d Cir. 1996) (quoting Reese v. Fulcomer , 946 F.2d 247, 253 (3d Cir. 1991), cert. denied, 503 U.S. 988 (1992)). The question of effectiveness of counsel under Strickland is a mixed question of law and fact; it requires the application of a legal standard to the historical, fact determinations. Berrrman 100 F.3d at 1095. A stale court's finding that counsel had a trial strategy is a finding of fact to which the presumption applies. Id. Likewise, a state court's determination that a decision was a tactical one is a question of fact. Id . However, a state court's determination of whether such strategy or decision was reasonable is a question of law that is subject to de novo review by the federal courts. Id.

Again, in his counseled habeas petition, Stauffer has not demonstrated that the Superior Court's determination that trial counsel's decision to not pursue an instruction for homicide by misadventure was contrary to, or an unreasonable application of, clearly established federal or constitutional law. Nor has this Court found any authority to support Stauffer's argument. Consequently, Stauffer has not demonstrated that he is entitled to relief with respect to his fourth and final claim.

Moreover, Stauffer has failed to establish the second inquiry under Strickland, i.e., actual prejudice. The Supreme Court has instructed that, in assessing the prejudice factor, the appropriate question is "whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland 466 U.S. at 695. It is not enough for a petitioner to establish merely that the errors had some conceivable effect on the outcome of the proceeding. To prove prejudice, a petitioner must demonstrate that "there is a reasonable probability that, hut for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability [is] a probability sufficient to undermine confidence in the outcome." Id. In making this assessment, the effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial. "(Al verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. at 696. See also Buehl v. Vaughn , 166 F.3d 163, 172 (3d Cir.) ("it is firmly established that a court must consider the strength of the evidence in deciding whether the Strickland prejudice prong has been satisfied."), cert. dismissed, 527 U.S. 1050 (1999).

In reviewing Stauffer's sufficiency of the evidence claim, the Superior Court found that the evidence admitted at trial was clearly sufficient to show the Petitioner's premeditation, malice, motive and specific intent to support a conviction for first degree murder. With respect to this issue the Pennsylvania Superior Court said:

The evidence admitted at trial, viewed in the light most favorable to the Commonwealth, was clearly sufficient to show appellants premeditation, malice, motive and specific intent. Testimony at trial revealed, and the jury reasonably chose to believe, that on the night of the murder the victim was going to tell (Stauffer) that she was in love with another man and that she was leaving him for this other man. Further testimony quoted (Stauffer) as stating "if I can't have her, nobody else will" and that (Stauffer) would kill the victim before he would let her go.

Commonwealth's Answer to Writ of Habeas Corpus, Op. of Superior Ct. at unnumbered 17. Finally, evidence of the Petitioner's prior abuse to his wife demonstrated ill will and malice. Given this evidence, there is no basis for this court to conclude that the jury would have found Stauffer basically innocent of all charges based on the defense of homicide by misadventure, particularly where they had the option of convicting him of a lesser crime committed in the heat of passion; i.e., voluntary manslaughter. All told, there is a no reasonable probability that, but for the omission of such instruction, the result of the Stauffer's trial would have been different. Because he has not demonstrated that he suffered actual prejudice due to counsel's failure to have requested the instruction for homicide by misadventure, Stauffer has failed to demonstrate that his counsel provided ineffective assistance. See, e.g., Berrvman, F.3d at 1101 ("The right to counsel does not require that a criminal defense attorney leave no stone unturned and no witness unpursued... An attorney need not fully investigate every potential avenue if he or she has reasonable grounds for not doing so."). Stauffer is not entitled to habeas relief with respect to this claim.

H. Certificate of Appealability

The Antiterrorism and Effective Death Penalty Act of 1996 included several major reforms to the federal habeas corpus laws. Section 102 of the Act (28 U.S.C. § 2253(c) (as amended)) codifies standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. Amended section 2253 provides that "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." Stauffer has not made any showing that he has been denied any of his constitutional rights. Accordingly, a certificate of appealability should be denied.

III. CONCLUSION

It is recommended that the Petition for Writ of Habeas Corpus he denied and that a certificate of appealability be denied.

In accordance with the Magistrate's Act, 28 U.S.C. 636 (b)(1)(B) and (C), and Rule 72.1.4 (8) of the Local Rules for Magistrates, objections to this Report and Recommendation are due by May 7, 2003. Responses to objections are due by May 19, 2003. Failure to file timely objection.s may constitute a waiver of any appellate rights.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MEMORANDUM ORDER

Russell J. Stauffer's Petition for Writ of Habeas Corpus was received by the Clerk of Court on October 21, 2000, and was referred to United States Magistrate Judge Francis X. Caiazza for Report and Recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

The Magistrate Judge's Report and Recommendation, filed on April 21, 2003, recommended that Russell J. Stauffer's Petition for Writ of Habeas Corpus he dismissed and that a certificate of appealability he denied. The parties were allowed ten days from the date of service to file objections. Service was made on the Petitioner by First. Class United States Mail and on the Respondent. Objections were filed by the Petitioner on May 9, 2003. After de novo review of the pleadings and documents in the case, together with the Report and Recommendation and objections, the following order is entered:

AND NOW, this 9th day of JUNE, 2003;

IT IS HEREBY ORDERED that Russell. J. Stauffer's Petition for Writ of Habeas Corpus is dismissed and that a certificate of appealability is denied. The Report and Recommendation of Magistrate Judge Caiazza, dated April 21, 2003, is adopted as the opinion of the court.


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