United States District Court, E.D. Pennsylvania
NOW this 30th day of October 2017, upon
considering Amilcar Rivas Rivera'sPetitions for writ
of habeas corpus (ECF Doc. No. I), the District
Attorney's Answer (ECF Doc. No. 17), Mr. Rivera's
Counterclaim (ECF Doc. No. 21), Mr. Rivera's Opposition to
the Answer (ECF Doc. No. 41), after careful and independent
review of United States Magistrate Judge Henry S.
Perkin's August 30, 2017 extensive well-reasoned Report
and Recommendation (ECF Doc. No. 42) and Mr. Rivera's
Objections (ECF Doc. No. 46), it is ORDERED:
1. We OVERRULE Mr. Rivera's Objections
(ECF Doc. No. 46) and APPROVE and ADOPT
Judge Perkin's extensive well-reasoned Report and
Recommendation (ECF Doc. No. 42);
2. We DENY and DISMISS Mr.
Rivera's Petition for writ of habeas corpus (ECF
Doc. No. 1) with prejudice and without an evidentiary
3. There is no probable cause to issue a certificate of
appealability as Mr. Rivera has not demonstrated reasonable
jurists would debate the correctness of the procedural
aspects of this ruling nor has he made a substantial showing
of the denial of a constitutional right.
September and October 2011, Amilicar Rivas Rivera and several
co-conspirators allegedly committed almost thirty burglaries
in and around Lancaster, Pennsylvania. On February 12,
2013, Mr. Rivera pleaded guilty' before the Honorable
Joseph Madenspacher to fifty-four charges stemming from the
burglaries. Represented by attorney Elizabeth Low, Mr.
Rivera entered into an open plea and agreed with the
Commonwealth to limit his overall exposure to the sentencing
guidelines. Attorney Low and the assistant district
attorney agreed several of the sentences relating to Mr.
Rivera's second degree burglary charges and attempted
burglary charges would run concurrently with one another and
with Mr. Rivera's first degree burglary
charges. Judge Madenspacher accepted Mr.
Rivera's guilty plea and sentenced Mr. Rivera to fifteen
to thirty years imprisonment. On February 22, 2013, Mr. Rivera
filed a direct appeal seeking modification of his sentence,
which Judge Madenspacher denied on February 26,
2013.Mr. Rivera did not file a direct appeal to
the Pennsylvania Superior Court. Mr. Rivera's sentence
became final on April 10, 2013, thirty days after Judge
Madenspacher's last order on March 11,
Rivera's first PCRA petition.
February 2, 2014, Mr. Rivera pro se timely filed his
first Post Conviction Relief Act ("PCRA") petition,
claiming Attorney Low provided ineffective assistance of
counsel during his guilty plea process. On April 7,
2014, Judge Madenspacher appointed R. Russell Pugh as Mr.
Rivera's PCRA counsel. In his first amended PCRA
petition, Mr. Rivera alleged he plead guilty involuntarily
and unknowingly based on Attorney Low's ineffective
assistance of counsel. Specifically, Mr. Rivera claimed
innocence on several of the burglary charges and argued
Attorney Low told him the Commonwealth would withdraw those
charges if he plead guilty to the remaining charges, actions
the Commonwealth never took. On April 15, 2014, Mr. Rivera
filed a second amended PCRA petition clarifying his arguments
on the same claims." On July 1, 2014, Judge
Madenspacher held an evidentiary hearing on Mr. Rivera's
PCRA ineffective assistance of counsel claims where both Mr.
Rivera and Attorney Low testified. On October 31, 2014, Judge
Madenspacher denied all of Mr. Rivera's PCRA
Rivera timely appealed Judge Madenspacher's denial of his
PCRA petition to the Pennsylvania Superior
Court. On December 3, 2014, Mr. Rivera filed
his statement of matters complained of upon appeal arguing
the PCRA court erred by denying post-conviction relief where
his "guilty plea was conditioned on the withdrawal of
certain charges against him" but the charges were never
withdrawn and Attorney Low "was ineffective
in a) inducing [Mr. Rivera] to plead guilty on an unrealized
promise that certain charges would be withdrawn; and b)
failing to ensure that the Commonwealth performed the promise
made to her client." On June 19, 2015, the Superior
Court affirmed Judge Madenspacher's denial of Mr.
Rivera's PCRA petition. The same day, Mr. Rivera's
PCRA counsel Mr. Pugh advised Mr. Rivera he could file a
federal habeas petition if Mr. Rivera chose to do
so. Instead, Mr. Rivera petitioned the
Pennsylvania Supreme Court for an allowance of appeal. On
December 8, 2015, the Pennsylvania Supreme Court declined
Rivera's second PCRA denial and appeal.
February 1, 2016, almost two years after filing his first
PCRA petition, Mr. Rivera filed his second PCRA petition. On
March 11, 2016, after giving Mr. Rivera notice under Pa.
R.Crim.P. 907 of its intent to dismiss Mr. Rivera's PCRA
petition as untimely, the PCRA court denied Mr. Rivera's
PCRA petition. The PCRA court declined to give Mr.
Rivera's second PCRA petition an evidentiary
again, Mr. Rivera appealed the denial of his PCRA petition to
the Pennsylvania Superior Court. On February 21, 2017, the
Pennsylvania Superior Court denied Mr. Rivera PCRA relief.
The Superior Court denied relief because Mr. Rivera failed to
timely file his second PCRA petition. On July 21,
2017, Mr. Rivera petitioned for allowance of appeal in the
Pennsylvania Supreme Court. The Pennsylvania Supreme Court
has not yet ruled on Mr. Rivera's petition.
Rivera's habeas petition.
January 19, 2016, Mr. Rivera petitioned for a writ of
habeas corpus in the United States District Court for
the Middle District of Pennsylvania. Mr. Rivera plead five
grounds for relief:
1. Ineffective assistance of guilty plea counsel. Counsel
induced Mr. Rivera to plead guilty and failed to tell Mr.
Rivera he could plead guilty on some charges and go to trial
on other burglary charges. Instead, Mr. Rivera claims counsel
told him the Commonwealth would withdraw on five charges if
Mr. Rivera first signed the guilty plea.
2. Ineffective assistance of PCRA counsel: Mr. Rivera argues
PCRA counsel failed to file effective amended PCRA petition
and failed to present evidence refuting the prosecutions
arguments about the plea deal. Mr. Rivera also claims his
PCRA counsel made false statements in PCRA counsel's
brief and ignored Mr. Rivera's wishes when appealing to
the Superior Court.
3. Prosecutorial misconduct: Mr. Rivera claims the prosecutor
went outside the four corners of the record and presented a
fabricated burglary charge. Mr. Rivera also argues the
prosecutor allowed Mr. Rivera's guilty plea counsel to
give false statements while she testified.
4. Abuse of discretion: Mr. Rivera claims the guilty plea
judge abused his discretion by giving false statements in his
opinion, misapplying rules of criminal procedure, and
construing a letter Mr. Rivera sent the court as a motion.
5. Newly discovered evidence: Mr. Rivera claims he found a
newspaper article purportedly exonerating him of several of
Rivera also filed a supporting Memorandum with thirteen
1. Counsel deprived Mr. Rivera of a voluntary plea because
she lied to him about the Commonwealth's agreement to
withdraw charges if Mr. Rivera plead guilty first.
2. Counsel had no reasonable basis for failing to tell Mr.
Rivera about the ability to sever some of the burglary
3. Mr. Rivera believed he could sever some of the burglary
4. PCRA counsel acted ineffectively by filing an amended PCRA
petition adding an additional burglary claim without Mr.
5. PCRA counsel acted ineffectively by failing to object to
prosecutorial misconduct arising from the prosecutor
introducing allegedly fabricated police reports. Mr. Rivera
also claims the admission of the police reports constitutes
6. PCRA counsel acted ineffectively by failing to object to
prosecutor's speculative questions and refused to
introduce documents refuting prosecutor's speculation.
7. There is a conflict of interest between PCRA counsel and
8. Counsel (not clear which one) acted ineffectively by
failing to address prejudice caused by prosecutor's
9. PCRA counsel acted ineffectively by inserting a burglary
charge into a PCRA brief even though PCRA counsel knew Mr.
Rivera did not wish to argue the charge.
10. Prosecutor violated Mr. Rivera's due process rights
by mischaracterizing Mr. Rivera's PCRA claim in referring
to irrelevant burglaries "infecting the trial with
unfairness." 11. Prosecutor went outside the four
corners of the record by referring to several burglaries Mr.
Rivera allegedly participated in.
12. Judge Madenspacher abused his discretion by directing Mr.
Rivera's letter be considered a motion when Mr. Rivera
claims he sent the judge a proper motion two days earlier.
13. Judge Madenspacher abused his discretion by
"[making] judgment on the 735 State Street info., "
even though Mr. Rivera made Judge Madenspacher aware he did
not wish to claim his innocence as to the charge.
Rivera now claims Judge Perkin erred by: 1) finding Mr.
Rivera's second PCRA petition untimely and thus
procedurally defaulted; 2) misconstruing Mr. Rivera's
PCRA petition by blaming PCRA counsel for procedural
defaulted arguments; 3) accepting guilty plea counsel's
statements she never told Mr. Rivera about the
Commonwealth's agreement to withdraw charges if Mr.
Rivera plead guilty; 4) rejecting Mr. Rivera's alibi
arguments; 5) improperly relying upon the findings of the
PCRA court and Pennsylvania Superior Court; and 6) improperly
rejecting an allegedly exculpatory newspaper article and eye
witness alibi testimony.
address each of Mr. Rivera's arguments in turn mindful we
must conduct a de novo review of those portions of
the report to which objections are made. Although the
standard of review for objections is de novo, the
extent of review lies within our discretion and we may
otherwise rely on the recommendations of the magistrate judge
to the extent we deem proper. For portions of the Report and
Recommendation to which no objection is made, we 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." Regardless of whether timely
objections are made by a party, we may accept, not accept, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.
Judge Perkin correctly concluded Mr. Rivera's second PCRA
petition is time-barred and procedurally defaulted, barring
federal habeas review.
Rivera argues Judge Perkin incorrectly concluded his second
PCRA is untimely, unexhausted, and procedurally defaulted. He
also argues Judge Perkin ignored evidence demonstrating his
second PCRA is timely, and Judge Perkin erroneously
determined grounds two through five of his habeas petition
and grounds two through thirteen of his memorandum of law are
procedurally defaulted because they are pending review by the
Pennsylvania Supreme Court. Mr. Rivera is incorrect on all
habeas corpus relief Mr. Rivera seeks is governed by
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), codified at 28 U.S.C. § 2254(d).
Mr. Rivera's habeas petition can only succeed if
Mr. Rivera can show: 1) he has exhausted his claims in state
court; and 2) the state court's resolution of his claim
is contrary to, or is an objectively unreasonable application
of clearly established federal law.
Rivera must present all of his claims to the Pennsylvania
Superior and Supreme courts before a federal district court
may entertain a habeas petition. Under the
federal habeas statute as amended by AEDPA, "we
may not grant a state prisoner's petition for a writ of
habeas corpus unless the applicant has exhausted the
remedies available in the courts of the State or there is an
absence of available State corrective
process." "The exhaustion requirements
ensures that state courts have the first opportunity to
review federal constitutional challenges to state convictions
and preserve the role of the state courts in protecting
federally guaranteed rights." "[S]tate remedies
must be exhausted except in unusual
circumstances." Principles of comity "dictate that
when a prisoner alleges that his continued confinement for a
state court conviction violates federal law, the state court
should have the first opportunity to review his claim and
provide the necessary relief."
satisfy the exhaustion requirement, Mr. Rivera must
demonstrate he "fairly presented" his claim to the
state court. He must show his federal habeas
claim is the "substantial equivalent" of the claim
he submitted to the state court. Mere similarity of the
state and federal issues is not enough. The relevant
inquiry is whether Mr. Rivera presented the same facts and
legal theory in the state court as in his federal
habeas petition. Mr. Rivera bears the burden of
proving exhaustion of all state remedies for each
generally bar federal habeas review when a
petitioner fails to comply with state procedural rules
regarding the state court's review of a
claim. If a petitioner fails to exhaust state
remedies and the petitioner is now procedurally barred from
meeting the exhaustion requirements in the state court,
federal habeas courts will deem the claim
procedurally defaulted because state exhaustion is no longer
determine a claim is procedurally defaulted, we may not
review the claim unless the petitioner can demonstrate: 1)
cause for the default and actual prejudice as a result of the
alleged violation of federal law; or 2) the failure to
consider the claim results in a fundamental miscarriage of
justice. To show cause for a procedural default,
the petitioner must show some objective, external factor
prevented them from complying with the state procedural
rules. To demonstrate prejudice, the petitioner must show the
external factor "worked to [petitioner's] actual and
substantial disadvantage, infecting the entire trial with
error of constitutional dimensions."To show a
fundamental miscarriage of justice, petitioner must
demonstrate actual innocence and must show it is more likely
than not a reasonable juror would not have convicted him
absent the alleged error.
habeas petition can only succeed if, in addition to
the state claim being exhausted, the state court's
resolution is contrary to or constituted an objectively
unreasonable application of federal law. "A state court
decision is contrary to clearly established federal law if
the state court (1) contradicts the governing law set forth
in the [Supreme] Court's cases or (2) confronts a set of
facts that are materially indistinguishable from the decision
of the [Supreme] Court and nevertheless arrives at a
[different] result." A state court decision
involves an unreasonable application of clearly established
federal law if the state court identifies the correct
governing rule but unreasonably applies it to the facts of
the case or unreasonably extends the legal principle to a
context where it does not apply. An objectively
unreasonable application requires the state court decision be
both incorrect and unreasonable. State court
factual determinations are given considerable deference under
the AEDPA. A petitioner must establish the state
court adjudication of their claim "resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state
Rivera argues his second PCRA is timely because according to
the AEDPA, he has one year from the date on which his
sentence becomes final to seek habeas
review. He calculates the final-sentence date as
March 28, 2013. Mr. Rivera correctly states, as Judge
Perkin did, he timely filed his first PCRA petition. Mr.
Rivera also correctly notes the Pennsylvania Supreme Court
denied his first PCRA petition on December 8, 2015. Mr.
Rivera correctly argues he could only file one PCRA petition
at a time. Mr. Rivera claims his first PCRA tolled the
one-year state PCRA deadline to file a subsequent PCRA
petition, giving him until December 2016 to file his second
PCRA petition. Mr. Rivera correctly notes he filed his second
PCRA petition on January 27, 2016. All would be well for Mr.
Rivera, except he confuses federal AEDPA law and Pennsylvania
PCRA law is unlike the federal AEDPA. Under the AEDPA, a
properly filed state PCRA petition tolls AEDPA's one-year
deadline to file a federal habeas petition while the
state PCRA petition is pending. But the AEDPA's
federal tolling provision "has no effect on the time
limitation set forth under the Pennsylvania
PCRA." To be timely, a state PCRA petition,
"including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final
[.]" "[T]he period for filing a PCRA
petition is not subject to the doctrine of equitable
tolling" except for three, narrow
exceptions. A PCRA petition may be filed outside of
the one year limit only upon showing: 1) governmental
interference in violation of state or federal constitutions
caused the delay; 2) newly discovered evidence advances the
petitioner's claim; and, 3) the Supreme Court or
Pennsylvania Supreme Court recognizes a new constitutional
right not available to the petitioner at the time of the
petition and applies retroactively. PCRA petitions filed in
Pennsylvania after the one year deadline may not be exhausted
by the state courts because they are too late. Because these
late PCRA claims cannot be exhausted, they become
procedurally defaulted and may not be reviewed as
habeas petitions by the federal district
Rivera's second PCRA petition is untimely because he did
not file it within the one year deadline required by 49
Pa.C.S. § 9541. Mr. Rivera argues his first PCRA
petition tolled the statute of limitations for all subsequent
PCRA petitions while his first petition wound its way through
the Pennsylvania appellate system. Mr. Rivera is incorrect.
While his first PCRA tolled the statute of limitations for a
federal habeas petition under AEDP A, it did nothing
to toll the one year deadline for filing all of Mr.
Rivera's Pennsylvania PCRA petitions. Mr. Rivera's
sentence became final on March 28, 2013, meaning he had until
March 28, 2014 to file all his PCRA petitions. When Mr.
Rivera filed his second PCRA petition in January 2016, the
one year PCRA deadline had long since passed. Both the
Lancaster County PCRA court which initially reviewed Mr.
Rivera's second PCRA petition and the Pennsylvania
Superior Court found Mr. Rivera's second PCRA petition
untimely and declined to rule on it. This leaves Mr.
Rivera's second PCRA petition unexhausted. Because Mr.
Rivera's second PCRA claim is unexhausted, Judge Perkin
correctly recommended we deny it as untimely and procedurally
Rivera also argues Judge Perkin improperly disregarded
evidence demonstrating Mr. Rivera filed his second PCRA
petition on January 19, 2016. Mr. Rivera argues he provided
Judge Perkin with three separate documents proving he mailed
both his federal habeas petition and his second PCRA
petition on January 19, 2016. Mr. Rivera claims the mailbox
rule saves his habeas petition because he claims he
mailed his petition within the one-year deadline. Even if Mr.
Rivera did mail his second PCRA petition on January 19, 2016,
Judge Perkin correctly finds Mr. Rivera's second petition
falls far outside the one-year deadline to file his PCRA
petitions. Mr. Rivera's second PCRA petition is untimely
and procedurally defaulted regardless of the date he mailed
it in January, 2016.
Mr. Rivera argues Judge Perkin prematurely found counts two
through five of his habeas petition and counts two
through thirteen of his memorandum are unexhausted because
Mr. Rivera asserts his second PCRA petition is pending before
the Pennsylvania Supreme Court.Mr. Rivera argues he must
present his PCRA claims to the Pennsylvania Supreme Court
before we may entertain his habeas petition. Mr.
Rivera argues because his second PCRA petition is still
pending before the Pennsylvania Supreme Court, Judge Perkin
prematurely found all but his first count unexhausted. Mr.
Rivera would have us wait until the Pennsylvania Supreme
Court ruled on his PCRA petition to do so.
Rivera loses either way. Under Pennsylvania Supreme Court
Order No. 218, PCRA petitions are removed from the
Court's discretionary review, making review
unavailable. This denial of review means a PCRA
petitioner exhausts state appeal rights once the Pennsylvania
Superior Court denies their PCRA petition, giving a
petitioner the right to file a federal habeas
petition. Mr. Rivera's second PCRA claim sits before the
Pennsylvania Supreme Court. But under Supreme Court Rules,
his federal habeas petition is proper and not
premature. Even if we were to find Judge Perkin prematurely
ruled on his habeas petition, it would be because he
has not exhausted his state appellate rights, making his
entire habeas petition improper.
Judge Perkin properly found Mr. Rivera's ineffectiveness
arguments are directed at PCRA counsel and not guilty plea
Rivera argues Judge Perkin improperly construed his arguments
for guilty plea counsel's ineffectiveness as to arguments
for PCRA counsel's ineffectiveness. "The
ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section
2254." Judge Perkin found Mr. Rivera
"appears to assign blame for the failure to exhaust many
if not all [of his PCRA] claims on PCRA
counsel." Mr. Rivera objects. Mr. Rivera attempts
to conflate the unreviewable alleged mistakes of his PCRA
counsel with the alleged mistakes of his guilty plea counsel.
Mr. Rivera claims his PCRA counsel failed to correct the
mistakes of guilty plea counsel by not exhausting Mr.
Rivera's state remedies which led to procedural
default. However, Mr. Rivera fired his guilty
plea counsel soon after his plea and employed PCRA counsel
during his appeal. Only PCRA counsel could have exhausted Mr.
Rivera's options for state relief. Mr. Rivera's claim
for relief is based not on the alleged error of guilty plea
counsel, but on the alleged error of PCRA counsel to exhaust
all forms of state relief. Section 2254(i) denies Mr. Rivera
relief for alleged ineffectiveness of PCRA counsel during
state appeal. Mr. Rivera's arguments fail.
Rivera also argues Judge Perkin improperly ignored a letter
from PCRA counsel to Mr. Rivera allegedly demonstrating
ineffectiveness. Mr. Rivera claims PCRA counsel acted
ineffectively by sending Mr. Rivera a letter representing he
exhausted his state remedies after the Pennsylvania Superior
Court denied his PCRA petition. Based on Pennsylvania Supreme
Court Order No. 218, PCRA counsel informed Mr. Rivera he did
not need to appeal to the Pennsylvania Supreme Court, but
could file a habeas petition upon receiving the
Pennsylvania Superior Court's denial. Mr. Rivera
argues this letter constitutes ineffective assistance of
counsel, because based on PCRA counsel's advice, he
failed to exhaust his state relief and suffered procedural
default. PCRA counsel correctly and effectively informed Mr.
Rivera of his habeas rights. Pennsylvania Supreme
Court Order No. 218 allows a PCRA petitioner to file a
federal habeas petition upon receiving the
Pennsylvania Superior Court's dismissal