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Rosembert v. Mahally

United States District Court, M.D. Pennsylvania

January 3, 2017

ALBERTO MELLON ROSEMBERT, Petitioner,
v.
SUPERINTENDENT LAWRENCE MAHALLY, PENNSYLVANIA STATE ATTORNEY GENERAL, Respondents.

          MEMORANDUM

          Hon. John E. Jones III, Judge

         Petitioner Alberto Mellon Rosembert (“Rosembert”), a Pennsylvania state inmate, commenced this action on April 13, 2015, with the filing of a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Rosembert challenges the Judgment of Sentence entered on April 23, 2012, in Court of Common Pleas of Luzerne County Criminal case number CP-40-CR-000198-2011. (Id.)

         In response to the petition, Respondents filed an answer, memorandum of law and appendices. (Doc. 18). At the direction of the Court, Respondents expanded the record on December 1, 2016, and the petition is now ripe for disposition. For the reasons that set forth below, the petition will be denied.

         I. STATE PROCEDURAL HISTORY

         The following procedural history, which was adopted by the Pennsylvania Superior Court during appellate review, was set forth in the Court of Common Pleas of Luzerne County's opinion addressing Rosembert's petition for collateral review.

The Defendant, Alberto Mellon Rosembert, was arrested on October 14, 2010 for the following charges: Corrupt Organizations, 18 Pa.C.S.A. 911(b)(3); Corrupt Organizations; 18 Pa.C.S.A. 911 (b)(1-4); Manufacture, Delivery and Possession with Intent to Deliver a Controlled Substance, 35 Pa.C.S.A. 780-113(a)(3), 7 counts; Criminal Use of a Communication Facility; 18 Pa. C. S. A. 7512(a).
On January 3, 2012, Attorney David Lampoon was appointed to represent the Defendant. Thereafter, on April 23, 2012, the Defendant, Alberto Mellon Rosembert, plead guilty to the following offenses before the Honorable Senior Judge Kenneth Brown; Corrupt Organizations (Count 1); Delivery of a Controlled Substance (Count 4) (Heroin); Delivery of a Controlled Substance, (Count 6) (Heroin). The Defendant, Alberto Mellon Rosembert, waived his right to a presentence investigation and agreed on the record to proceed to immediate sentencing.
Subsequent thereto, the Honorable Senior Judge Kenneth Brown, sentenced the Defendant as follows:
Delivery of a Controlled Substance, Count 6: 3-6 years state confinement;
Delivery of a Controlled Substance, Count 4: 2-4 years state confinement, consecutive to Count 6; Corrupt Organizations, Count 1: 21 months to 4 years state confinement, consecutive to Count 6 and Count 4.
The Defendant filed the instant Post-Conviction Collateral Relief Petition (hereinafter Petition) claiming ineffective assistance of counsel seeking to be allowed to withdraw his guilty plea or to have his appellate rights reinstated.
ISSUES PRESENTED
Whether Counsel was ineffective:
(1) In preparation for trial?
(2) In failing to challenge the prior record score used or the weight of the heroin?
(3) In failing to file an appeal to the Superior Court on Defendant's behalf?

(Doc. 18-2, pp. 1-2). The PCRA Court held a hearing on August 28, 2013., and issued an opinion on October 2, 2013, denying relief. (Id. at 4, 9; Doc. 18-3, p.2). Rosembert pursued a timely appeal to the Pennsylvania Superior Court presenting the same issues raised in his PCRA petition. (Doc. 18-3, p. 4). On January 26, 2015, the Superior Court affirmed the PCRA Court's denial of the petition. (Id. at 6). Rosembert filed the instant petition pursuant to 28 U.S.C. 2254 on April 13, II. GROUNDS RAISED IN FEDERAL PETITION

         Rosembert pursues the following grounds in his federal petition raised in his PCRA proceedings.

(1) “Whether trial counsel was ineffective in preparation for trial?
(2) “Whether trial counsel was ineffective in failing to challenge the prior record score use to convict due to the weight of the heroin?”
(3) “Whether trial counsel was ineffective in failing to file a [direct] appeal to the Superior Court?”
(4) Whether trial counsel was ineffective for failing to raise mulitple “unlitigated issues” on appeal and during collateral proceedings?

(Doc. 1, pp. 6-9).

         III. DISCUSSION

         A. Exhaustion and Procedural Default

         The court shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). However, such an application “shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process). The state courts must have the first opportunity to redress any claimed violation of a habeas petitioner's federal rights. Picard v. Connor, 404 U.S. 270, 275-76 (1971). The habeas statute codifies this principle by requiring that a petitioner exhaust the remedies available in the courts of the State, 28 U.S.C. § 2254(b)(1)(A), meaning a state prisoner must “fairly present” his claims in “one complete round of the state's established appellate review process, ” before bringing them in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (stating “[b]ecause the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process); see also Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard, 404 U.S. at 275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).

         Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

         “Fairly presenting” a federal claim to the state courts requires the petitioner to present both the factual and legal substance of the claim in such a manner that the state court is on notice that the federal claim is being asserted. See McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Citations to the Constitution or to federal case law can provide adequate notice of the federal character of the claim. Evans v. Court of Common Pleas, 959 F.2d 1227, 1232 (3d Cir. 1992). A petitioner may also alert the state courts through “reliance on state cases employing [federal] constitutional analysis in like fact situations, ” or “assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution.” Id. Thus, a federal claim may be fairly presented to the state courts even when the petitioner makes no express reference to federal law. McCandless, 172 F.3d at 261.

         The federal claims raised in the state courts need not be identical to the claims pursued in federal court. See Picard, 404 U.S. at 277 (recognizing that petitioner is entitled to “variations in the legal theory or factual allegations used to support a claim”). But, the exhaustion requirement would “serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts.” Id. at 276. A petitioner has exhausted a federal claim only if he or she presented the “substantial equivalent” of the current claim to the state court. Id. at 278; see also McCandless, 172 F.3d at 261 (holding that petitioner must present both “factual and legal substance” of claim to state courts).

         Rosembert concedes that the “unlitigated” “claims outlined in GROUND 4 of this Petition have not been fully exhausted due to Appellate Counsel's ineffectiveness on the previous appeal.” (Doc. 1, pp. 9-11). Review of the record confirms this concession with regard to the claims of trial court loss of jurisdiction and abuse of discretion, and trial counsel's ineffectiveness in failing to challenge jurisdiction, file a direct appeal, and raise double jeopardy issues. If a petitioner presents unexhausted habeas claims to a federal court, but state procedural rules bar further state court review, the federal court will excuse the failure to exhaust and treat the claims as exhausted. Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although deemed exhausted, such claims are considered procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749 (1991); Lines, 208 F.3d at 160. “[F]ederal courts may not consider the merits of such claims unless the applicant establishes ‘cause and prejudice' or a ‘fundamental miscarriage of justice' to excuse his or her default. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).” McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); see also Trevino v. Thaler, 133 S.Ct. 1911, 1917 (2013).

         To demonstrate “cause, ” the petitioner must demonstrate that some objective external factor impeded his efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate “actual prejudice, ” the petitioner must show that the errors worked to his actual and substantial disadvantage “infecting his entire [proceeding] with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). The miscarriage of justice exception applies only in extraordinary cases where a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496. “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). This requires a petitioner to “support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

         Rosembert fails to establish cause in that he fails to identify an objective external factor that impeded his efforts to comply with procedural rules in presenting these claims to the state courts. In the absence of cause, the court will not address the issue of prejudice. In turn, the miscarriage of justice exception is inapplicable because Rosembert has failed to provide new reliable evidence of his actual innocence.

         The claims contained in Grounds One, Two and Three are fully exhausted and will be addressed on the merits.

         B. Claims Adjudicated on the Merits

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal courts reviewing a state prisoner's application for a writ of habeas corpus may not grant relief “with respect to any claim that was adjudicated on the merits in State court proceedings” unless 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).

         “[B]ecause the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction, ” Greene v. Fisher, __U.S.__, 132 S.Ct. 38, 43 (2011) (internal quotations and citations omitted), “[t]his is a difficult to meet and highly deferential standard . . . which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citation omitted). The burden is on Rosembert to prove entitlement to the writ. Id.

         A decision is “contrary to” federal law if “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision is an “unreasonable application” of federal law if the state court identified the correct governing legal rule but applied the rule to the facts of the case in an objectively unreasonable manner. Renico v. Lett, 559 U.S. 766, 773 (2010). A decision is based on an “unreasonable determination of the facts” if the state court's factual findings are objectively unreasonable in light of the evidence presented to the state court. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         The test for ineffective assistance of counsel is a well settled and firmly established one containing two components. “First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. The state courts set forth the following law governing review of ineffective assistance of counsel claims:

“To obtain relief on a claim of ineffective assistance of counsel, the Petitioner must show (1) the underlying claim is of arguable merit; (2) no reasonable basis existed for Counsel's action or inaction; and (3) counsel's error caused prejudice such that there is a reasonable probability that the proceeding would have been different absent such error. Commonwealth vs. Dennis. 17 A.3rd 297, 301 (Pa. 2011), citing Commonwealth vs. Pierce, 527 A.2nd 973, 975 (Pa. 1987).
In reviewing any particular claim of ineffectiveness, the Court need not determine whether the first two prongs of this standard are met if the record shows the Petitioner has not met the prejudice prong. Commonwealth vs. Travaglia, 541 Pa. 108, 661 A.2nd 357 (1995) cert. denied 516 U.S. 1121, 116 S.Ct. 931; Commonwealth v. Collins, 888 A.2nd 564 (Pa. 2005). Further, it is clear that the burden of proving ineffectiveness of counsel rests with the Petitioner because counsel's stewardship of the trial ...

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