United States District Court, E.D. Pennsylvania
ANTHONY GAINES, EX. REL, Petitioner, Pro se, PHILADELPHIA, PA.
For COMMONWEALTH OF PENNSYLVANIA, Respondent: RYAN DUNLAVEY, LEAD ATTORNEY, PHILA DISTRICT ATTORNEY, PHILADELPHIA, PA.
REPORT AND RECOMMENDATION
RICHARD A. LLORET, UNITED STATES MAGISTRATE JUDGE.
A Petition for Writ of Habeas Corpus was filed on June 7, 2013, while the Petitioner, Anthony Gaines, was incarcerated at SCI-Pittsburgh. See Petition for Writ of Habeas Corpus, Doc. No. 1 [" Petition" ]. That Petition raised three issues for review: 1) that he was denied his right to compulsory process because his counsel failed to subpoena witnesses on his behalf 2) he was denied a right of counsel because the court accepted his waiver of counsel, but failed to remove the public defender as counsel of record, and 3) he was denied his right to a speedy trial. The Philadelphia District Attorney's Office attempted to correspond with the Petitioner on numerous occasions before and after their response to his Petition was filed. I issued an Order on October 24, 2014, directing the Petitioner to show cause why his case should move forward now that he was no longer incarcerated and setting a November 3, 2014 hearing on the matter. See Doc. No. 18. The Petitioner did not appear at the scheduled hearing.
In order to give a state the opportunity to correct violations of a state prisoner's rights, a petitioner must exhaust all available state remedies before filing a petition with the federal courts. See 28 U.S.C. § 2254(b)(1). Exhaustion requires a showing by the Petitioner that each of his claims was fairly presented to the state courts. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). His filing of a Writ of Habeas Corpus occurred while he was incarcerated, thereby meeting the " in custody" requirement of 28 U.S.C. § 2254; see also Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).
Nevertheless, Petitioner failed to exhaust his habeas claims. The first claim, that there was a denial of his right to compulsory process, was never presented to the Superior Court by Petitioner's counsel. On appeal, counsel is granted deference in selecting issues most likely to succeed. See Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). Courts must assume a " petitioner's appellate counsel made an informed judgment call that was counsel's to make." See Sistrunk v. Vaughn, 96 F.3d 666, 671 (3d Cir. 1996). As the Respondent notes, Petitioner's counsel focused on " convincing the Superior Court that the Commonwealth failed to put on sufficient evidence to prove Gaines guilty of his most serious conviction, possession with intent to deliver." See Resp. Br. at 7. His appellate counsel succeeded in persuading the Superior Court there was insufficient evidence to merit the conviction. See Commonwealth v. Gaines, 3173 EDA 2012, at 5 (Pa. Super. Mar. 28, 2014) (noting that the court was " constrained to once again vacate Appellant's judgment of sentence and remand for resentencing").
His second claim related to ineffective assistance of counsel because the trial court failed to remove his trial counsel is similarly defaulted. Gaines admitted that he did not raise this issue in state court " because he believes that it is a 'waste of time' to raise an ineffective assistance of counsel claim before the trial court found him guilty." See Resp. Br. at 7. As the Respondent notes, a petitioner cannot bypass a state court because he thinks that court would be unresponsive to his claims. See id . at 7-8 (citing Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)).
His third and final claim of a right to a speedy trial was waived due to a failure to raise it in his original appeal. See Com. v. Gaines, 3173 EDA 2012, at 3 (Mar. 28, 2014) (citing Com. v. Anderson, 2002 PA Super 204, 801 A.2d 1264, 1266 (Pa. Super. 2002)). Because Gaines had the benefit of a direct appeal, he cannot file another direct appeal attacking matters outside of the issue related to the remand. See Anderson, 801 A.2d at 1266. Buried within that speedy trial claim is Gaines's assertion that " [c]ounsel abandoned [the speedy trial] issue without giving me any notice and without my permission." See Exhibit, Doc. No. 3, at 12. Nothing in Gaines's petition provides any explanation of how counsel " abandoned" the petition. In any event, the assertion that appellate counsel was somehow ineffective on appeal was disposed of during collateral review. See Resp. Br. at 8 (citing N.T. 3/9/10 at 24-28 (finding of the Honorable Daniel J. Anders related to speedy trial claims); Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) (barring federal courts from re-examining state court determinations of state law questions)). As Judge Anders found no merit to these claims and Third Circuit precedent prevents us from questioning state court determinations of state law, this argument too is meritless.
Even if Gaines's Petition was not in procedural default, this Petition fails due to a failure to prosecute his claims. The Federal Rules of Civil Procedure apply to habeas claims " only 'to the extent that [they are] not inconsistent with' applicable federal statutory provisions and rules." See Gonzalez v. Crosby, 545 U.S. 524, 529, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (quoting Fed. R. Civ. Pr. 81(a)(2)). One of those Federal Rules permits a dismissal for failure to prosecute an action. See Fed.R.Civ.P. 41(b). This sanction is reserved for cases " where there is a clear record of delay or contumacious conduct by the plaintiff." See Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 866 (3d Cir. 1984). The Third Circuit outlines six factors for review,  but " not all of the Poulis factors need be satisfied in order to dismiss a petition. Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir. 1992).
Simply put, the Petitioner abandoned this Habeas action the moment he was released from custody. He has made no effort to contact this court or the Philadelphia District Attorney's Office. He has made no additional filings with this court. All mail sent to the Petitioner's address was returned to the sender. The District Attorney's Office, under no formal obligation of their own, contacted multiple members of the Petitioner's family to find the Petitioner's address. Still, no correspondence was answered or acknowledged by the Petitioner.
While the Poulis factors ask a court to consider the effectiveness of sanctions other than outright dismissal, any other sanctions at the court's disposal would have no impact on this situation. The Petitioner's abandonment of his Habeas action upon release from incarceration is apparent from the record. Afforded ample opportunities for response, the Petitioner was silent. I find no other recourse but to dismiss this Petition for lack of prosecution. Any further action on this matter would only delay the consideration of other habeas petitions awaiting consideration.
Based upon the foregoing discussion, I recommend that Gaines's habeas petition be dismissed with prejudice. It is further recommended that there is no probable cause to issue a certificate of appealability. The petitioner may file objections to this Report and Recommendation within fourteen days after being served with a copy thereof. See Local Civ. Rule 72.1. Failure to file timely objections may ...