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Burton v. Glunt

United States District Court, Third Circuit

December 11, 2013

FRANKIE GERALD BURTON, Petitioner,
v.
STEVEN R. GLUNT, et al., Respondents.

OPINION

JOEL H. SLOMSKY, J.

I. INTRODUCTION

Before the Court are Objections to the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter recommending the denial of the revised Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Frankie Gerald Burton (“Petitioner”). (Doc. No. 47.) Petitioner seeks relief based on a variety of alleged constitutional violations.

Following a review of the filings by the parties and the pertinent record, the Magistrate Judge issued a Report, recommending that the Petition for a Writ of Habeas Corpus be denied and that a certificate of appealability not be issued. (Doc. No. 44.) As noted, Petitioner has filed Objections to the Report and Recommendation. (Doc. No. 47.) For reasons that follow, the Court will adopt the Magistrate Judge’s Report and Recommendation and deny the revised Petition for a Writ of Habeas Corpus.[1]

II. BACKGROUND

On July 16, 1999, after a seven-day jury trial, Petitioner was convicted of multiple offenses including robbery, indecent assault, aggravated assault, simple assault, theft of movable property, receipt of stolen property, criminal trespass, criminal solicitation, terroristic threats, burglary, attempted theft of a motor vehicle, and attempted kidnapping. Com. v. Burton, Nos. 6091-1998, 6875-1998, slip op. at 1 (C.P. Mtgy. Feb. 14, 2011). These charges stemmed from “a series of offenses relating to a violent and terrorizing crime spree he engaged in on the night of August 30, 1998.” Id. The trial court set forth the facts of that crime spree as follows:

On August 30, 1998, . . . a man on a bicycle approached [K.V.], then aged thirteen, and asked her whether she liked a musical group named “Bones, Thugs and Harmony.” He then asked if she “wanted to get it on, ” blocked her path with his bicycle and grabbed her buttocks. [K.V.] . . . identified that man as [appellant]. The time was approximately 6:47 p.m.
At 7:40, police learned of a woman [Diane Foreman] approximately one mile away in Horsham Township who reported a man matching [appellant’s] description, and riding a bicycle, approached her as she walked on the street, talked to her and finally grabbed her buttocks. Although this victim was approximately 30 years old, . . . her appearance resembled that of a teenage girl. . . . [S]he wore shorts, a t-shirt, sneakers and a ponytail, and . . . [appellant] “kept asking [her] how old [she] was.” She would also testify that [appellant] was wearing a portable CD player on his waistband.
At approximately 8:20 p.m., in Hatboro, Morris Shatzkin, 76, was assaulted by a man he identified as [appellant], who attempted to steal his automobile in the parking lot of a fast-food restaurant. [Mr. Shatzkin testified] that [appellant] “reeked of alcohol, ” that [appellant] demanded his wallet, and that [appellant] told him he ([appellant]) was in trouble and wanted Shatzkin to “take him somewhere.” The location of this attempted robbery was approximately one mile from the previous incident. Between 9:00 p.m. and 9:20 p.m., a man identified as [appellant], and riding a blue Huffy mountain bike, approached [R.E.] and [C.A.], aged 15 and 17, respectively, . . . and attempted to rob them of money. This incident occurred less than one-quarter mile from the attempted carjacking.
At approximately 10:00 p.m., police received a report of an attempted burglary of the McPeak residence, only fifty yards from the attempted robbery of [R.E.] and [C.A.]. At approximately 10:15 p.m., police received a report of a burglary from the Frieman residence, which abuts the back yard of the McPeak residence. For both the McPeak and Frieman residences, children’s toys were in the yards, and were visible from the street. . . . [O]ne of the residents of the burgled homes had seen [appellant] riding his bicycle through the neighborhood, looking down the driveways, into the yards.
Finally, at 10:54 p.m., police received a report that a man matching [appellant’s] description had broken into the Staples residence, less than one-quarter mile away, and had attempted to abduct a girl before fleeing. The girl, [L.S.], was eight years old at the time. She said that when she escaped from [appellant], she saw her dog leap at [appellant] with his fangs bared, as if preparing to bite him on the wrist. The police later investigated the crime scene at the Staples residence and found a black glove that came from the Frieman residence. As with the McPeak and Frieman residences, children’s toys in the back yard were visible from the street.
As soon as they received the last report, police went to a park approximately 50 to 100 yards from the Staples residence. There they found a blue Huffy mountain bike near the park entrance. Next to the bicycle was a woman’s purse, which contained identification belonging to Lisa Frieman. Protruding from the purse was a portable CD player. The officers then saw and apprehended [appellant]. He exuded an odor of alcoholic beverage. A search of his pockets revealed a set of automobile keys belonging to the Staples family. He also carried a CD by the musical group “Bones, Thugs and Harmony.” He was bleeding from what appeared to be puncture wounds on his wrists. He told the officers the bicycle was his, and that he had stolen the purse by breaking through a screen and entering a home. He also stated that he had cut his arm by punching through a glass pane to burglarize another house, and had knocked a girl down a flight of steps during this burglary.

Com. v. Burton, 770 A.2d 771, 775-76 (Pa.Super. Ct. 2001) (quoting Trial Court Opinion, 6/19/00, at 16-18 (alterations in original) (citations omitted)) (footnote omitted).

Following his conviction, Petitioner was sentenced to an aggregate term of incarceration of forty-two to one-hundred-eighteen years. Burton, Nos. 6091-1998, 6875-1998, slip op at 1 (C.P. Mtgy. Feb. 14, 2011). On appeal, the Superior Court of Pennsylvania affirmed the judgment of sentence, and the Supreme Court of Pennsylvania denied Petitioner’s request for review on February 10, 2005. Id. at 1-2.

On January 12, 2006, petitioner filed a pro se petition pursuant to Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Id. at 2. Petitioner later obtained counsel who filed an amended PCRA petition on June 25, 2010. Id. A hearing was conducted over the course of three days: August 19, October 25 and November 24, 2010. Id. On November 11, 2010, prior to the conclusion of the PCRA hearing, Petitioner filed a motion to proceed pro se and terminate the representation by his PCRA counsel.[2] (Doc. No. 25 at 39.) On December 30, 2010, the PCRA court denied the amended PCRA petition. Com. v. Burton, Nos. 6091-1998, 6875-1998, slip op. at 4 (C.P. Mtgy. Dec. 30, 2010). Petitioner appealed on January 11, 2011, and the Superior Court affirmed the decision of the PCRA court. Com. v. Burton, No. 255 EDA 2011, slip op. at 10-11 (Pa.Super. Ct. Feb. 8, 2012). The Supreme Court of Pennsylvania subsequently denied Petitioner’s request for allowance of an appeal on June 27, 2012.

During the PCRA process, Petitioner brought the instant habeas litigation by filing a Petition Seeking Abeyance of Stay in the Above Matter on Appeal in the Lower Court on April 3, 2007. (Doc. No. 1.) The Court granted the Motion and stayed Petitioner’s habeas case pending exhaustion of his state court remedies. (Doc. No. 2.) After the Supreme Court of Pennsylvania denied Petitioner’s request for allowance of an appeal from the PCRA court’s decision, Petitioner filed a revised pro se Petition for a Writ of Habeas Corpus on August 20, 2012. (Doc. No. 15.) The Petition contained seventeen claims for relief, some with subparts. (See id. at ¶ 12.) On September 12, 2012, this Court referred the case to Judge Rueter for a Report and Recommendation. (Doc. No. 18.) Judge Rueter issued his Report and Recommendation on April 23, 2013 (Doc. No. 44), and Petitioner filed Objections to the Report on June 26, 2013 (Doc. No. 47). Those Objections are now before the Court.

III. STANDARD OF REVIEW

A. 28 U.S.C. § 2254 Review

Pursuant to 28 U.S.C. § 2254(d), federal habeas relief is precluded on:

any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States, or (2) 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.

28 U.S.C. § 2254(d). This is a deferential standard of review. When the state court has not adjudicated a petitioner’s claims on the merits, however, the federal court conducts de novo review. Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010); see also Coombs v. Diguglielmo, 616 F.3d 255, 261 (3d Cir. 2010) (reviewing petitioner’s Batson v. Kentucky claim de novo since state courts did not review it on the merits). Regardless of whether a petitioner’s claims were adjudicated on the merits, factual determinations made by a state court are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Palmer, 592 F.3d at 392 (quoting Simmons v. Beard, 581 F.3d 158, 165 (3d Cir. 2009)).

B. De Novo Review of Objections to Report and Recommendation

Pursuant to 28 U.S.C. § 636(b)(1)(B) and the local rules of this Court, a district judge may designate a magistrate judge to file proposed findings and recommendations. Any party may file written objections in response to those findings. Id. § 636(b)(1)(C). In the Eastern District of Pennsylvania, Local Rule 72.1.IV(b) governs Petitioner’s objections to the Magistrate Judge’s Report and Recommendation. Under this Rule, Petitioner must “specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections . . . .” Savior v. Superintendent of Huntingdon SCI, No. 11-5639, 2012 WL 4206566, at *1 (E.D. Pa. Sept. 20, 2012) (quoting Local R. Civ. P. 72.1.IV(b)). With respect to pro se litigants, however, this rule may be relaxed. See McCabe v. Pennsylvania, 419 F.Supp.2d 692, 695 (E.D. Pa. 2006) (treating pro se litigant’s letter to court as objection triggering de novo review, “[a]lthough Petitioner did not file formal objections to the Report and Recommendation”).

Once objections are filed, the district judge “shall [then] make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. [The judge] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C). The Third Circuit has “assumed that the normal practice of the district judge is to give some reasoned consideration to the magistrate’s report before adopting it as the decision of the court.” Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987); see also Bolt v. Strada, No.12-1599, 2013 WL 4500466, at *1 (M.D. Pa. Aug. 21, 2013).

IV. ANALYSIS

In his revised Petition for a Writ of Habeas Corpus, Petitioner raised seventeen claims for relief, some with subparts. The Magistrate Judge reviewed all seventeen claims, and this Court will now review Petitioner’s objections to the Report and Recommendation. Because the Magistrate Judge found many of the claims procedurally defaulted, the Court will briefly discuss the standard for determining when a claim is procedurally defaulted.

Under federal habeas corpus standards, the concepts of procedural default and exhaustion go hand-in-hand. It is firmly established that a petitioner must present all of his claims to a state’s intermediate court, as well as to its supreme court, before a federal district court may entertain a petition for a writ of habeas corpus. See 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012) cert. denied, 133 S.Ct. 669 (2012); Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citations omitted). To satisfy this exhaustion requirement, a petitioner must show that the claim raised in the federal habeas petition was “fairly presented” to the state courts. Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). To demonstrate that a claim has been fairly presented to the state courts, a petitioner must show that the claim is “the substantial equivalent of that presented to the state courts. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts.” Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989) (citations omitted).

When a petitioner cannot obtain state court review of his claims because of noncompliance with state procedural rules, [3] the doctrine of procedural default generally operates to bar federal habeas review. See Coleman v. Thompson, 501 U.S. 722, 729-32 (1991). According to the Third Circuit, “[p]rocedural default occurs when a claim has not been fairly presented to the state courts (i.e., is unexhausted) and there are no additional state remedies available to pursue . . . .” Rolan, 680 F.3d at 317 (citations omitted).[4] Upon a finding of procedural default, “federal habeas review of the claims is barred unless the [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

Thus, procedural default will be excused if a petitioner can show cause, or a reason, for the default and prejudice resulting from the alleged federal violation. “Cause” for default “ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492 (1986). For example, cause is shown when “the factual or legal basis for a claim was not reasonably available to counsel, or . . . ‘some interference by officials, ’ made compliance impracticable . . . .” Id. at 488 (internal citations omitted). On the other hand, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” Id. at 486.

To demonstrate prejudice, Petitioner must show:

“[N]ot merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied “fundamental fairness” at trial.

Id. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). If both cause and prejudice are successfully shown, procedural default will be excused, and the Court may review the merits of the claim. Procedural default of a claim may also be excused if the petitioner successfully demonstrates that failure to consider the claim will result in a fundamental miscarriage of justice.

A. Petitioner’s Objection Regarding Claim One is Unavailing, As a Citation to a Single Federal Case Does Not Make a Claim of Alleged Violations of State Law Cognizable on Federal Habeas Review

Petitioner first objects to the Magistrate Judge’s finding that Petitioner’s claim―that the trial court erred in granting the State’s motion to consolidate the charges and denying Petitioner’s motion to sever the charges―is not cognizable on federal habeas review. (Doc. No. 47 at 1.) The Magistrate Judge found that Petitioner did not assert a federal constitutional violation in his first claim, and therefore, the claim is not cognizable here because habeas relief cannot be granted for alleged violations of state law. (Doc. No. 44 at 15-16.) Petitioner objects to the Magistrate Judge’s finding and contends that his citation to Haley v. Blue Ridge Transfer Co., Inc., 802 F.2d 1532 (4th Cir. 1986) renders this claim cognizable. (Doc. No. 47 at 1.) Petitioner’s objection is unavailing.

First, Petitioner did not rely on the Haley case in making his arguments. Instead, the case is simply cited by the Supreme Court of Pennsylvania in Carter by Carter v. U.S. Steel Corp., 529 Pa. 409 (1992), on which Petitioner relies. (Doc. No. 25 at 18.) Second, even if Petitioner relied on Haley in his first claim, simply citing a single federal case does not establish that Petitioner’s claim based on a federal constitutional violation. For these reasons, the Court agrees with the Magistrate Judge’s finding that Petitioner’s first claim alleges violations of state law and is therefore not cognizable on federal habeas review.

B. Petitioner’s Objections Regarding Claim Two are Not Persuasive, As He Failed to Demonstrate that the Procedural Default of this Claim Should be Excused

For multiple reasons, Petitioner objects to the Magistrate Judge’s finding that his second claim is procedurally defaulted. In his second claim, Petitioner alleged that the trial court erred in allowing various witnesses to identify him in court after they failed to identify him in a pretrial photo array. (Doc. No. 25 at 19-25.) The Magistrate Judge was not persuaded by Petitioner’s arguments, and Petitioner now lodges various objections. First, Petitioner objects to the Magistrate Judge’s finding that Petitioner’s claim regarding witness Morris Shatzkin is procedurally defaulted. (Doc. No. 47 at 1-2.) Second, Petitioner objects to the Report for finding that his claim regarding witness Angela Johnson is also procedurally defaulted. (Id. at 2.) Third, Petitioner disagrees with the Magistrate Judge’s finding ...


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