United States District Court, E.D. Pennsylvania
Jeffrey L. Schmehl, J.
an inmate serving a life sentence for first degree murder,
filed a petition for a writ of habeas corpus in which he
raised, inter alia, eleven claims of ineffective
assistance of trial counsel. (ECF 1). The District Judge to
whom the petition was assigned referred the petition to a
United States Magistrate Judge for the purpose of issuing a
Report and Recommendation. (ECF 3). The Magistrate Judge
issued a Report and Recommendation that the petition be
denied, finding, inter alia, that ten of the eleven
of the ineffective assistance of counsel claims were
procedurally defaulted. (ECF 45). After the petitioner filed
Objections (ECF 48), the District Judge overruled the
Objections, approved and adopted the Report and
Recommendation, dismissed the petition for a writ of habeas
corpus and denied a certificate of appealability. (ECF 49).
Petitioner's request for a certificate of appealabilty
from the Court of Appeals for the Third Circuit (ECF 50) was
denied. (ECF 54).
petitioner's habeas petition was dismissed, the United
States Supreme Court recognized a narrow exception to its
previous holding in Coleman v. Thompson, 501 U.S.
722, 729-32 (1991) that attorney errors in a post conviction
proceeding do not establish cause to excuse a procedural
default. Martinez v. Ryan, 132 S.Ct. 1309, 1315
(2012). The Supreme Court held that in states like
Pennsylvania where state law requires ineffective assistance
of trial counsel claims to be raised in an initial review
collateral proceeding, a petitioner may establish
“cause” sufficient to overcome a procedural
default if “appointed counsel in the initial-review
collateral proceeding, where the claim should have been
raised, was ineffective under the standards of Strickland
v. Washington, 466 U.S. 668 . . . (1984).”
Martinez, 132 S.Ct. at 1318. The Court continued
that “[t]o overcome the default, a prisoner must also
demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.”
Id. The Court in Martinez specifically
distinguished between finding cause based on ineffective
assistance of counsel during the initial-review proceedings
and at appellate collateral proceedings. Id. at
petitioner subsequently filed a motion for relief from
judgment pursuant to Rule 60(b)(5) & (6), asking the
Court to consider whether Martinez permits review of
his procedurally defaulted ineffective assistance of counsel
claims. (ECF 58). The District Judge referred the motion to
the same Magistrate Judge for the purpose of issuing a Report
and Recommendation. (ECF 59).
Court of Appeals subsequently held that Martinez can
serve as a proper basis for relief under Rule 60(b)(6)
Cox v. Horn, 757 F.3d 113, 121, 124-25 (3d Cir.
case was then reassigned to the docket of the undersigned.
(ECF 93). The Magistrate Judge issued a Report and
Recommendation that petitioner's motion under Rule 60(b)
for relief from an order dismissing and denying his petition
for a writ of habeas corpus be denied without the issuance of
a certificate of appealability. (ECF 96). Petitioner has now
filed Objections to the Magistrate Judge's Report and
Recommendation. (ECF 100).
conducting a careful de novo review of the
petitioner's Objections, the Court overrules all of the
Objections, with one exception.
Magistrate Judge concluded Martinez did not apply to
Claims Eight, Nine and Eleven of the habeas petition because
petitioner had failed to raise these three claims on appeal
under the Pennsylvania Post Conviction Relief Act
(“PCRA”) and, therefore, these claims were
procedurally defaulted. (ECF 96, pp. 13-14). The Magistrate
Judge further found that petitioner could not overcome his
procedural default of the remaining eight ineffective
assistance of counsel claims in his habeas petition because
petitioner had failed to show that any of them were
“substantial” under Martinez.
(Id., pp. 14-26).
Objections, Petitioner argues that Claim Eleven of his habeas
petition was never actually presented at the initial-review
collateral proceeding and therefore should not have been
considered procedurally defaulted for failing to raise the
claim on PCRA appeal under the PCRA. Rather, petitioner
argues that the Magistrate Judge should have performed a
Martinez analysis on Claim Eleven. The Court agrees.
Claim Eleven of his habeas petition, petitioner alleged that
trial counsel was ineffective for “failing to present
any viable defense due to the cumulative effect of errors
within this petition.” (ECF 1, pp. 33-35). While
petitioner did include a claim entitled “Trial Counsel
was Ineffective for Failing to Present any Viable
Defense” in his pro se petition under the
PCRA, appointed counsel did not include such a claim in
either his counseled PCRA petition or amended counseled
petition. Further, such a claim was never considered or
discussed by Judge James A. Lineberger in his Opinion denying
relief in the initial-review proceeding under the PCRA. (ECF
85-3). Indeed, in her Report and Recommendation, the
Magistrate Judge listed the eight claims that petitioner
raised in his counseled PCRA petitions. (ECF 96, p. 6 citing
Am. PCRA Pet. & Supplemental Am. PCRA Pet., ECF 24 Ex.
G). Conspicuously absent from the list is any ineffective
assistance of trial counsel claim for failing to assert a
petitioner files a pro se PCRA petition, but
subsequently obtains counsel and files an amended petition,
the PCRA court will review only the counseled petition.
Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa.
1999); see Griggs v. DiGuglielmo, 2007 WL 2007971,
at *2 n.2 (E.D. Pa. Jul. 3, 2007) (Yohn, J.) (claim not
fairly presented to state court where raised in a pro
se, but not counseled, PCRA petition). Here, appointed
PCRA counsel did not present the failure of trial counsel to
present a viable defense claim to the initial PCRA court in
either the counsel petition or amended counseled petition.
Therefore, this claim was never fairly presented to the PCRA
court on initial review. Martinez is therefore
applicable to this claim. Accordingly, the Court
will remand this case to the Magistrate Judge to consider
whether petitioner's procedural default of Claim Eleven
of his habeas petition should be excused under
it is hereby ORDERED that:
Petitioner's Objections to the Magistrate Judge's
Report and Recommendation [Doc.100 ] are
SUSTAINED in part and
OVERRULED in part.
Petitioner's Objections are OVERRULED
and the Rule 60(b) motion [Doc. 75] is
DENIED with respect to Claims 1-10 of his
original habeas petition, alleging ineffective assistance of
counsel. The ...