United States District Court, M.D. Pennsylvania
John E. Jones III, Judge
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.)
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.
STATE PROCEDURAL HISTORY
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
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
Subsequent thereto, the Honorable Senior Judge Kenneth Brown,
sentenced the Defendant as follows:
Delivery of a Controlled Substance, Count 6: 3-6 years state
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.
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
(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
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).
Exhaustion and Procedural Default
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).
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).
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.
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).
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).
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).
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.
claims contained in Grounds One, Two and Three are fully
exhausted and will be addressed on the merits.
Claims Adjudicated on the Merits
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).
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.
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).
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