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Guzman v. Rozum

United States District Court, E.D. Pennsylvania

April 12, 2017

FRANCISCO GUZMAN, Petitioner,
v.
GERALD ROZUM; GARY SANFORD, District Attorney; and, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA Respondents.

          MEMORANDUM

          C. Darnell Jones, II J.

         I. Introduction

         On February 16, 2006, Petitioner Francisco Guzman was convicted in the Philadelphia Court of Common Pleas of first-degree murder, two counts of aggravated assault, carrying a firearm without a license, possession of a criminal instrument, and recklessly endangering another person. (No. CP-51-CR-0500771-2003; Trial Tr. vol. 7, 5-10, Feb. 16, 2006.) On April 10, 2006, he was sentenced to a term of life imprisonment without parole on the murder conviction, a consecutive six (6) to twelve (12)-year term of imprisonment on the assault convictions, and a number of concurrent imprisonment terms on the remaining convictions. (Ct. Com. Pl. Crim. Docket 3-4.) Petitioner now seeks habeas relief from his state-court convictions. Pursuant to Local Civil Rule 72.1.IV(c), the matter was referred to United States Magistrate Judge Carol Sandra Moore Wells for a Report and Recommendation (“R&R”). Judge Wells issued an R&R denying Petitioner's request for relief, and Petitioner filed objections thereto, which are presently pending before this Court. For the reasons set forth below, Petitioner's objections shall be denied.

         II. History

         A. Factual Background

         The following facts are supported by evidence presented at trial.

         Petitioner, along with Felix Baez, Randolph Miller, José Tirado, and Esau Tirado, dealt drugs in the area surrounding the intersection of Clearfield and Wendle Streets in Philadelphia. (Trial Tr. vol. 3, 157-163, Feb. 10, 2006; Trial Tr. vol. 4, 107-110, Feb. 13, 2006.) Petitioner supplied other dealers with drugs to sell and collected money from them once those drugs were sold. (Trial Tr. vol. 4, 109-110.)

         At some point before Christmas Eve in 2000, Petitioner told Esau Tirado, that he “was going to deal with” Felix Baez because Baez owed Petitioner money. (Trial Tr. vol. 4, 111, 122.) Upon hearing that, Esau told his brother, José Tirado, to stop spending time with Baez and specifically, to not get into Baez's van on December 24, 2000. (Trial Tr. vol. 4, 115-117.) José Tirado, however, did not heed Esau's advice and rode with Baez, Randolph Miller, and Michael Cartagena in Baez's van to a bar that day. (Trial Tr. vol. 3, 167; Trial Tr. vol. 4, 117.)

         When they arrived, Baez went into the bar to purchase drinks for the group, while José Tirado, Miller, and Cartagena stayed in the van to smoke marijuana. (Trial Tr. vol. 3, 169-170.) Tirado grew impatient after waiting a few minutes and directed Cartagena to tell Baez to hurry up. (Trial Tr. vol. 3, 170.) Cartagena exited the van, entered the bar, and found Baez playing cards. (Trial Tr. vol. 3, 170.) Baez gave Cartagena his car keys, told him to buy the group's drinks, and drive Tirado home if he wished to go. (Trial Tr. vol. 3, 170-171.) Cartagena bought the drinks, left the bar, and returned to Baez's parked van, entering it through the driver's-side door. (Trial Tr. vol. 3, 170-171.) Cartagena, Tirado, and Miller drank for approximately five minutes while sitting in the vehicle, at which point Tirado asked Cartagena to take him home. (Trial Tr. vol. 3, 171.) As Cartagena attempted to start the van, Petitioner approached and began shooting into the vehicle. (Trial Tr. vol. 3, 171-178.)

         Michael Cartagena testified that he was “looking face to face with the defendant . . . for a minute” immediately before the shooting began.[1] (Trial Tr. vol. 3, 174-176.) José Tirado was shot three times and died at the scene.[2] (Trial Tr. vol. 3, 92-93, 178.) Miller was shot once in his arm, and Cartagena's jacket was grazed by a bullet. (Trial Tr. vol. 3, 176; Trial Tr. vol. 5, 92-93, Feb. 14, 2006.) Miller spent several days recovering at Temple University Hospital and suffered permanent nerve damage to his left arm as a result of his wound. (Trial Tr. vol. 4, 20; Trial Tr. vol. 5, 92.)

         On Christmas Day-the day after José Tirado was killed-Petitioner went to Esau Tirado's house and told Esau's mother that he was “sorry that that happened to your son. It was not meant to happen.”[3] (Trial Tr. vol. 4, 120.) Iliana Tirado (Esau's and José's sister) was also at the house when Petitioner arrived, and she testified that Petitioner apologized for José's death and told Esau that “you knew it was going to happen . . . because I let you know.” (Trial Tr. vol. 4, 180-182.) Petitioner then directed Esau Tirado to get into his car, whereupon Tirado noticed that Petitioner was carrying a nine-millimeter handgun.[4] (Trial Tr. vol. 4, 121.) Petitioner asked Tirado whether he had seen Baez because Petitioner wanted Baez to pay his debt. (Trial Tr. vol. 4, 122.) Tirado responded that he had not, and Petitioner drove Tirado back to his house. (Trial Tr. vol. 4, 122.)

         Also on December 25, 2000, Michael Cartagena was interviewed by police regarding the shooting that took place the night before. (Trial Tr. vol. 3, 180.) Cartagena did not tell the detectives who he believed the shooter to be at that time because he “was still shaken up by the incident.” (Trial Tr. vol. 3, 181.) When he spoke with detectives again on May 17, 2001, Cartagena identified the Petitioner from a photograph lineup as “Pete.”[5] (Trial Tr. vol. 3, 183.) Cartagena told them that he had known Petitioner for approximately two years from having seen him deal drugs in his neighborhood near the intersection of Clearfield and Wendle Streets in Philadelphia. (Trial Tr. vol. 3, 157-158, 212-213, 218.) Randolph Miller testified that he also knew Petitioner from his involvement in the drug dealings that frequently occurred at the corner of Clearfield and Wendle Streets. (Trial Tr. vol. 4, 7-8.)

         On January 2, 2003, the police told Michael Cartagena that they had arrested Petitioner. (Trial Tr. vol. 3, 221.) Cartagena positively identified Petitioner as the individual who shot into Baez's van on December 24, 2000, wounding Randolph Miller and killing José Tirado. (Trial Tr. vol. 3, 220-221.)

         B. Procedural Background

         i. Direct and Collateral Appeal

         Following the trial court's denial of Petitioner's post-sentence motions, Petitioner filed a timely appeal to the Superior Court of Pennsylvania. Commonwealth v. Guzman, No. 1624EDA 2006, slip op. at 1 (Pa. Super. Ct. July 3, 2007). The Superior Court affirmed Petitioner's judgment of sentence, id., and the Supreme Court of Pennsylvania denied allocatur on May 14, 2008, Commonwealth v. Guzman, 932 A.2d 253 (Pa. 2008).

         On June 6, 2008, Petitioner filed a timely pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-9546. (Pet'r's Mot. Post Conv. Relief, June 6, 2008.) An Amended PCRA Petition was filed by Petitioner's appointed counsel on May 21, 2010. (Pet'r's Am. Pet. Post Conv. Relief, May 21 2010.) On November 23, 2010, the PCRA court gave notice to Petitioner of its intent to dismiss his Amended PCRA Petition without a hearing. (Notice, Nov. 23, 2010 (citing Pa. R. Crim. P. 907).) In accordance therewith, the PCRA court entered an Order on February 18, 2011, dismissing Petitioner's Amended PCRA Petition. (Order, Feb. 18, 2011.)The Superior Court of Pennsylvania affirmed that Order on September 5, 2012. Commonwealth v. Guzman, No. 788 EDA 2011, slip op. at 8 (Pa. Super. Ct. Sept. 5, 2012). The Supreme Court of Pennsylvania denied allocatur on March 27, 2013. Commonwealth v. Guzman, 63 A.3d 1244 (Pa. 2013).

         ii. Petitioner's Habeas Claims

         Pursuant to 28 U.S.C. § 2254, Petitioner timely filed the instant pro se habeas action on November 11, 2013 in the Western District of Pennsylvania (“§ 2254 Petition”).[6] (Pet. 29, ECF No. 1-3.) The matter was transferred to the Eastern District of Pennsylvania on November 14, 2013. (Order 4, ECF No. 1.) Petitioner's claims for relief are as follows:[7]

1. The trial court erred by admitting testimony from Iliana Tirado over Petitioner's defense counsel's objection;
2. The trial court erred by admitting evidence indicating that Petitioner was a drug dealer and violent person;
3. The weight of the evidence did not support the verdict;
4. Both of Petitioner's trial lawyers were ineffective because they failed to present available alibi witnesses and unreasonably instructed Petitioner not to present an alibi defense;
5. One of Petitioner's trial lawyers (Attorney Gary Server) was ineffective because he advised Petitioner to not present an alibi defense;
6. Petitioner's trial lawyers were ineffective because they failed to request adequate limiting instructions regarding testimony that portrayed Petitioner as a drug dealer and violent individual;
7. The trial court erred by refusing to grant a mistrial pursuant to Petitioner's objection to the admissibility of Iliana Tirado's testimony;
8. Petitioner's trial lawyers were ineffective because they failed to object to the trial court's transferred intent instruction;
9. Petitioner's trial lawyers were ineffective because they failed to object to the prosecutor's remark during her opening statement that Petitioner admitted to Esau Tirado he unintentionally killed José Tirado;
10. No warrant was ever issued that authorized Petitioner's arrest;
11. The statutes Petitioner violated were never lawfully enacted;
12. The court, criminal procedure, and evidence rules pursuant to which Petitioner was prosecuted violate the Constitution of the United States and were never lawfully enacted;
13. The Constitution of the Commonwealth of Pennsylvania is unconstitutional and was never lawfully adopted;
14. Petitioner's life sentence violated the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania because at the time of sentencing, he was under the age of 25; and
15. Petitioner's constitutional rights to a fair trial, equal protection under the law, and to be free from cruel and unusual punishment were violated because he was not provided an interpreter when he was first taken into custody or at trial.

(Pet. 16-27; Am. Pet. 2-7.)

         Thereafter, this Court entered an Order referring Petitioner's § 2254 Petition to the Honorable Carol Sandra Moore Wells, United States Magistrate Judge, for a Report and Recommendation. (Order, ECF No. 5.) The Commonwealth filed a Response to the Petition on September 5, 2014, arguing that no relief was due because Petitioner's claims were either not cognizable on habeas review, procedurally defaulted, or without merit. (Resp. 2, ECF No. 12.)

         Petitioner replied on November 28, 2014. (Reply, ECF No. 19.)

         iii. Report and Recommendation / Petitioner's Objections

         Magistrate Judge Wells issued her R&R on June 16, 2016, in which she determined that all of Petitioner's claims for habeas relief were either not cognizable, procedurally defaulted, or meritless. (R&R 16, ECF No. 24.) Petitioner lodged eight objections to the Magistrate Judge's R&R. (Excs. to R&R, ECF No. 27 (hereinafter “Objs.”).) The Commonwealth responded to Petitioner's objections on September 15, 2016 (ECF No. 32), and Petitioner replied thereto on October 19, 2016 (Resp. to Commonwealth's Objs., ECF No. 34 (hereinafter “Resp.”)). The matter is now ripe for review by this Court.

         III. Standards of Review A. Objections to Report and Recommendation

         When objections are filed to the R&R of a Magistrate Judge, the District Court must conduct de novo review of those portions of the R&R to which objection is made. 28 U.S.C. § 636(b)(1). If there are no objections to the R&R or when reviewing those portions of the R&R to which no objections are directed, the court should, as a matter of good practice, “satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72(b), advisory committee notes; see also Oldrati v. Apfel, 33 F.Supp.2d 397, 399 (E.D. Pa. 1998) (“In the absence of a timely objection . . . this Court will review [the Magistrate's] Report and Recommendation for ‘clear error.'”) (citations omitted).

         B. Exhaustion and Procedural Default

         The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §§ 2241-2266 (“AEDPA”), deals with the right of all persons in state custody, or in federal custody, to file a petition in federal court seeking the issuance of a writ of habeas corpus. In the context of a prisoner in state custody, if such a writ of habeas corpus is issued by a federal court, the prisoner will be released from such state custody on the grounds that certain rights accruing to that prisoner pursuant to the United States Constitution have been violated; habeas corpus motions pursuant to the AEDPA are the only possible means by which “state prisoners attacking the validity of the fact or length of their confinement” may obtain this type of relief from state custody. Torres v. Fauver, 292 F.3d 141, 146 (3d Cir. 2002) (quoting Preiser v. Rodriguez, 411 U.S. 475, 490 (1973)) (internal quotation marks omitted).

         By means of the AEDPA, Congress also created a series of intentionally restrictive gate-keeping conditions which must be satisfied in order for a prisoner to prevail on a habeas petition. The strict AEDPA gate-keeping procedures were enacted by Congress in order to support the policy of creating finality with respect to state and federal criminal prosecutions. One such gate-keeping procedure is the requirement of exhaustion. “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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); see also Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010) (“A district court ordinarily cannot grant a petition for a writ of habeas corpus arising from a petitioner's custody under a state court judgment unless the petitioner first has exhausted his available remedies in state court.”) (citing 28 U.S.C. § 2254(b)). In other words, the petitioner must have “fairly presented” the federal habeas claims to the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995); Evans v. Court of Common Pleas, Del. Cnty., Pa., 959 F.2d 1227, 1231 (3d Cir. 1992) (citations omitted). “To ‘fairly present' a claim, a petitioner must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). A petitioner in Pennsylvania must appeal such claims to the Pennsylvania Superior Court. Whitney v. Horn, 280 F.3d 240, 250 n.10 (3d Cir. 2002). Petitioner carries the burden of proving exhaustion. Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir. 2001) (citing Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993)).

         Where a claim was not exhausted in state court, it is said to be procedurally defaulted. To bring a procedurally defaulted claim in federal proceedings, Petitioner must demonstrate either: (a) cause for the default and actual prejudice arising from the alleged violation of federal law; or, that (b) failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish the “cause” requirement, Petitioner must “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). Establishing “prejudice” requires the “petitioner [to] prove ‘not 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.'” Id. at 193 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Alternatively, to establish a fundamental miscarriage of justice, Petitioner must demonstrate actual innocence. Schlup v. Delo, 513 U.S. 298, 324-32 (1995).

         C. Merits Review

         Where Petitioner's claims were adjudicated on the merits in state court, the AEDPA deference standard applies to this Court's review of the merits determination. Rolan v. Coleman, 680 F.3d 311, 321 (3d Cir. 2012). The AEDPA limits federal habeas review of state-court judgments. Werts, 228 F.3d at 195. A petition for habeas corpus may only be granted if: (1) the state court's adjudication of the claim “resulted in a decision contrary to, or involved in an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or” (2) the adjudication “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)(1)-(2). When a claim has been adjudicated on the merits in state court, federal habeas review is limited to the record before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398-99 (2011).

         D. Ineffective Assistance of Counsel

         The Sixth Amendment right to counsel “is the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To prove that counsel was ineffective, Petitioner must establish that: (1) counsel's performance was constitutionally deficient; and (2) that deficiency prejudiced Petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance “requires showing that counsel made errors so serious that he or she was not functioning as the ‘counsel guaranteed to the defendant by the Sixth Amendment.'” Id. In essence, Petitioner must show that “counsel's representation fell below an objective standard of reasonableness” under prevailing professional norms. Id. at 688. Petitioner must overcome the presumption that, under the circumstances, the challenged action “might be ...


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