United States District Court, Eastern District of Pennsylvania
Enclosed herewith please find a copy of the Report and Recommendation filed by United States Magistrate Judge Hart, on this date in the above captioned matter. You are hereby notified that within fourteen (14) days from the date of service of this Notice of the filing of the Report and Recommendation of the United States Magistrate Judge, any party may file (in duplicate) with the clerk and serve upon all other parties written objections thereto (See Local Civil Rule 72.1 IV (b)). Failure of a party to file timely objections to the Report & Recommendation shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court Judge.
In accordance with 28 U.S.C. §636(b)(1)(B), the judge to whom the case is assigned will 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 judge, receive further evidence or recommit the matter to the magistrate judge with instructions.
Where the magistrate judge has been appointed as special master under F.R.Civ.P 53, the procedure under that rule shall be followed.
REPORT AND RECOMMENDATION
JACOB P. HART, UNITED STATES MAGISTRATE JUDGE
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by an individual currently incarcerated at the State Correctional Institute at Rockview, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
I. Factual and Procedural Background
On July 30, 2004, Nunez was convicted by a jury sitting in the Court of Common Pleas for Philadelphia County of first degree murder, arson, criminal conspiracy, and possession of instruments of crime. Petition at ¶¶ 1-5. On September 22, 2004, he was sentenced to a mandatory life term of imprisonment on the murder charge, plus a consecutive term of 10 to 20 years' imprisonment on the other charges. Petition at ¶ 3.
Nunez's conviction arose out of the September 10, 2002, shooting of an individual named Brian Scott, who sold drugs for him. Trial Transcript of July 27, 2004, Testimony of Rashaan Washington at 64. As it emerged at trial, Nunez was angry at Scott because he had allowed the police to find a large quantity of drugs belonging to Nunez which were in Scott's possession. Id., at 65-67, 76. On the day of the shooting, Nunez, along with Rashaan Washington and Edwin Rodriguez, had borrowed Scott's car. Id. at 74. At some point, Scott phoned Nunez and threatened to call the police on him if his car was not returned quickly. Id. at 75-6. The three other men then picked up Scott. Id. at 81. Eventually, they stopped the car in a parking lot. Id. at 85. Nunez shot Scott in the head and then set the car on fire. Id. at 85-86.
Nunez filed a direct appeal in which he argued that the evidence was insufficient to support his convictions, and also that his convictions were against the weight of the evidence. Commonwealth v. Nunez, No. 2774 EDA 2004 (Pa. Super. June 14, 2006). The Superior Court rejected his appeal in a decision dated June 14, 2006, finding that both arguments had been waived. Id. The Pennsylvania Supreme Court denied Nunez's petition for allowance of appeal. Commonwealth v. Nunez, 911 A.2d 934 (Pa. Nov. 1, 2006).
On or about October 3, 2007, Nunez filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq. Amended PCRA Petition, attached to Commonwealth's Response as Exhibit B, at 2. He subsequently filed an Amended Petition. Id- The Court of Common Pleas then appointed counsel, who filed a second Amended PCRA Petition. Amended Post Conviction Relief Act Petition, attached to Commonwealth's Response as Exhibit D.
In the counseled Amended PCRA petition, Nunez argued that trial counsel, who was also appellate counsel, had been ineffective in waiving the claims regarding the sufficiency of the evidence and the weight of the evidence (although at the same time suggesting that the Appellate Court was mistaken regarding the sufficiency claim). Exhibit D.
On June 31, 2009, after reviewing the petition and the Commonwealth's response thereto, the PCRA court issued notice of its intent to dismiss the petition as meritless, pursuant to Pa R. Crim. P. 907. Commonwealth v. Nunez. CP-51-CR-0205251-2203, 2671 EDA 2009 (Pa. Super. July 6, 2010), attached to Commonwealth's Response as part of Exhibit H at 3. Although PCRA counsel was inadvertently not sent a copy of the notice, Nunez obtained it and filed a. pro se response. Id. Nevertheless, the PCRA court dismissed Nunez's petition on August 21, 2009. Id.
PCRA counsel filed a notice of appeal from the dismissal on September 16, 2009, and a 1925(b) statement of matters complained of on appeal on October 15, 2009. Id. However, on October 22, 2009, Nunez filed a pro se motion seeking to dismiss counsel and represent himself. Id. Leave was granted, after the hearing required by Commonwealth v. Grazier. 552 Pa. 9 (1998). Id. at 4.
As the PCRA court described it, Nunez raised the following issues in his pro se statement under Rule 1925(b):
Whether the Court erred by denying PCRA relief without an evidentiary hearing when PCRA counsel was not served with the rule 907 Notice; whether the Court abused its discretion or committed an error of law by issuing a notice that failed to provide sufficient specific reasons for dismissal in violation of Pa. R. Crim. P. 907 and established case law; whether the Philadelphia County Court of Common Pleas Rule 907 notice form utilized by all criminal judges violates a PCRA petitioner's state and federal due process right to adequate notice; whether PCRA counsel was ineffective for failing to file a motion to vacate the dismissal of his PCRA court's final order pursuant to 42 Pa. C.S.A. § 5505, as to afford the court a reasonable opportunity to correct its alleged Rule 114(B)1) and Rule 907(1) violations to achieve substantial justice and fairness prior to filing a notice of appeal; whether the PCRA Court lacked jurisdiction to order him to file a 1925(b) [statement] when the Superior Court remanded his case solely to conduct a Grazier hearing; and whether PCRA counsel was ineffective for failing to advance alleged arguably meritorious claims initially raised in his pro se amended petition challenging the effectiveness of prior counsel.
Id. at 4-5.
In a decision dated February 29, 2012, the Superior Court denied Nunez's appeal, ruling that his PCRA petition had been properly dismissed without a hearing. Commonwealth v. Nunez. No. 2671 EDA 2009 (Pa. Super. Feb. 29, 2012), attached to Commonwealth's Response as Exhibit I.
Nunez then filed the present petition for habeas corpus relief. In it, he has argued that (1) the evidence adduced at trial was insufficient to support his conviction for criminal conspiracy; (2) appellate counsel was inadequate in waiving the two appellate issues; (3) he was "constructively denied post-conviction counsel at a critical stage of the post-conviction proceeding, which precluded counsel from acting effectively to present and/or advance issues of merits contained within Nunez's pro se pleadings at a meaningful time and manner"; (4) trial counsel was ineffective for failing to assert challenges under ...