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Rivera v. Sommers

United States District Court, E.D. Pennsylvania

October 30, 2017

AMILICAR RIVAS RIVERA,
v.
SUPT. JACK SOMMERS, et al.,

          ORDER-MEMORANDUM

          KEARNEY, J.

         AND NOW this 30th day of October 2017, upon considering Amilcar Rivas Rivera's[1]Petitions for writ of habeas corpus (ECF Doc. No. I)[2], the District Attorney's Answer (ECF Doc. No. 17), Mr. Rivera's Counterclaim (ECF Doc. No. 21)[3], 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 hearing; and,
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.

         Analysis

         In September and October 2011, Amilicar Rivas Rivera and several co-conspirators allegedly committed almost thirty burglaries in and around Lancaster, Pennsylvania.[4] On February 12, 2013, Mr. Rivera pleaded guilty' before the Honorable Joseph Madenspacher to fifty-four charges stemming from the burglaries.[5] 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.[6] 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.[7] Judge Madenspacher accepted Mr. Rivera's guilty plea and sentenced Mr. Rivera to fifteen to thirty years imprisonment.[8] On February 22, 2013, Mr. Rivera filed a direct appeal seeking modification of his sentence, which Judge Madenspacher denied on February 26, 2013.[9]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, 2013.[10]

         Mr. Rivera's first PCRA petition.

         On 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.[11] 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.[12] On April 15, 2014, Mr. Rivera filed a second amended PCRA petition clarifying his arguments on the same claims."[13] 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 petitions.[14]

         Mr. Rivera timely appealed Judge Madenspacher's denial of his PCRA petition to the Pennsylvania Superior Court.[15] 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[16] 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."[17] On June 19, 2015, the Superior Court affirmed Judge Madenspacher's denial of Mr. Rivera's PCRA petition.[18] 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.[19] Instead, Mr. Rivera petitioned the Pennsylvania Supreme Court for an allowance of appeal. On December 8, 2015, the Pennsylvania Supreme Court declined review.[20]

         Mr. Rivera's second PCRA denial and appeal.

         On 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.[21] The PCRA court declined to give Mr. Rivera's second PCRA petition an evidentiary hearing.[22]

         Once again, Mr. Rivera appealed the denial of his PCRA petition to the Pennsylvania Superior Court.[23] 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.[24] On July 21, 2017, Mr. Rivera petitioned for allowance of appeal in the Pennsylvania Supreme Court.[25] The Pennsylvania Supreme Court has not yet ruled on Mr. Rivera's petition.

         Mr. Rivera's habeas petition.

         On January 19, 2016, Mr. Rivera petitioned for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania.[26] 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 the burglaries.

         Mr. Rivera also filed a supporting Memorandum with thirteen additional allegations:

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 charges.
3. Mr. Rivera believed he could sever some of the burglary charges.
4. PCRA counsel acted ineffectively by filing an amended PCRA petition adding an additional burglary claim without Mr. Rivera's permission.
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 plain error.
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 Mr. Rivera.
8. Counsel (not clear which one) acted ineffectively by failing to address prejudice caused by prosecutor's statements.
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.

         Mr. 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.

         We 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.[27] 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.[28] 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."[29] 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.[30]

         1. Judge Perkin correctly concluded Mr. Rivera's second PCRA petition is time-barred and procedurally defaulted, barring federal habeas review.

         Mr. 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 accounts.

         The 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.[31]

         Mr. Rivera must present all of his claims to the Pennsylvania Superior and Supreme courts before a federal district court may entertain a habeas petition.[32] 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."[33] "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."[34] "[S]tate remedies must be exhausted except in unusual circumstances."[35] 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."[36]

         To satisfy the exhaustion requirement, Mr. Rivera must demonstrate he "fairly presented" his claim to the state court.[37] He must show his federal habeas claim is the "substantial equivalent" of the claim he submitted to the state court.[38] Mere similarity of the state and federal issues is not enough.[39] The relevant inquiry is whether Mr. Rivera presented the same facts and legal theory in the state court as in his federal habeas petition.[40] Mr. Rivera bears the burden of proving exhaustion of all state remedies for each claim.[41]

         We generally bar federal habeas review when a petitioner fails to comply with state procedural rules regarding the state court's review of a claim.[42] 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 available.[43]

         Once we 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.[44] 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."[45]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.[46]

         A 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."[47] 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.[48] An objectively unreasonable application requires the state court decision be both incorrect and unreasonable.[49] State court factual determinations are given considerable deference under the AEDPA.[50] 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 court proceeding."[51]

         Mr. 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.[52] He calculates the final-sentence date as March 28, 2013.[53] 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.

         Pennsylvania's 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.[54] But the AEDPA's federal tolling provision "has no effect on the time limitation set forth under the Pennsylvania PCRA."[55] 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 [.]"[56] "[T]he period for filing a PCRA petition is not subject to the doctrine of equitable tolling" except for three, narrow exceptions.[57] 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.[58] 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 court.[59]

         Mr. 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 defaulted.[60]

         Mr. Rivera also argues Judge Perkin improperly disregarded evidence demonstrating Mr. Rivera filed his second PCRA petition on January 19, 2016.[61] 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.

         Lastly, 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.[62]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.

         Mr. Rivera loses either way. Under Pennsylvania Supreme Court Order No. 218, PCRA petitions are removed from the Court's discretionary review, making review unavailable.[63] 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.

         2. Judge Perkin properly found Mr. Rivera's ineffectiveness arguments are directed at PCRA counsel and not guilty plea counsel.

         Mr. Rivera argues Judge Perkin improperly construed his arguments for guilty plea counsel's ineffectiveness as to arguments for PCRA counsel's ineffectiveness.[64] "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."[65] 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."[66] 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.[67] 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.

         Mr. 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.[68] 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 ...


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