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Ludovici v. Lamas

United States District Court, M.D. Pennsylvania

April 24, 2018

JOHN LUDOVICI, Petitioner,


          RICHARD P. CONABOY United States District Judge

         Here the Court considers Magistrate Judge Susan E. Schwab's Report and Recommendation (Doc. 40) concerning the Petition Under U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1) filed by Petitioner John Ludovici (“Petitioner”). Magistrate Judge Schwab recommends that the Petition be dismissed, concluding that Petitioner has not shown entitlement to relief on any claim raised. (Doc. 1 at 15-36.) Petitioner timely filed objections to the Report and Recommendation. (Doc. 43.) No. response to the objections has been filed and the time for doing so has passed. Therefore, this matter is ripe for disposition. For the reasons discussed below, the Court adopts the Report and Recommendation (Doc. 40) and dismisses the 28 U.S.C. § 2254 Petition (Doc. 1).

         I. Background

         A. Factual Background

         Magistrate Judge Schwab repeated the following background which she noted was “consistently set out by the state courts.” (Doc. 40 at 2 n.2.)

On the night of April 4, 2003, [Ludovici] approached three individuals while they were sitting in a car outside of a restaurant in Moosic, PA. He stated that he was a police officer and requested identification. When they questioned him about his identity, he pulled a gun on the three victims, chased them in a car as they attempted to escape from him in their car, and after their car was boxed in, he pulled a gun on them again, robbed them[, ] and then stole their car to flee the scene.
Later that evening [Ludovici] encountered a car containing thee Air Force Airmen as they were passing through Lackawanna Cuonty on Route 81. [Ludovici] forced their vehicle off the roadway with his stolen vehicle, approached the vehicle of the Airmen and told them that he was a police officer. When they asked to see his badge, he pulled out a gun and forced them out of the car and robbed them.
Still operating the stolen vehicle, [Ludovici] left the scene of the robbery of the Airmen, and when spotted by the police, he led them on a lengthy, high-speed chase through several communities before crashing in the stolen vehicle and being taken into custody by the State Police.
While in custody at the State Police Barracks that same night, [Ludovici] loosened the shackles that held him and escaped from the barracks. He fled across the parking lot but was again apprehended by the State Police.[1]
[Ludovici] was charged on April 5, 2003, with three counts of robbery, three counts of receiving stolen property, three counts of recklessly endangering another person, one count of impersonating a public servant, one count of fleeing or attempting to elude police, and one count of escape. The[se] charges arose from the robberies of the three Air Force Airmen.
On April 11, 2003, [Ludovici] was charged with three counts of robbery, three counts of theft by unlawful taking, three counts of recklessly endangering another person, tow counts of simple assault and one count of impersonating a public servant. These charges arose from the robberies [of the] three individuals in Moosic, PA.
[Ludovici's] Ominbus Motions were filed on November 18, 2003. [Ludovici] raised the possibility of an insanity defense and psychological evaluations were undertaken. On October 15, 2004, [the trial court] granted the Commonwealth's Motion to Preclude an Insanity Defense because [Ludovici's] own expert found that he was not legally insane at the time of the crimes.
A jury trial was held from October 18 through October 20, 2004. The charges pending at the time of the trial were three counts of robbery and one count of impersonating a public servant in 03-CR-923; three counts of robbery, one count of impersonating a public servant, one count of recklessly endangering another person and one count of fleeing and attempting to elude police in 03-CR-924; and one count of escape in 03-CR-926. The jury found [Ludovici] guilty of all charges.

(Doc. 40 at 2-3 (quoting Doc. 11-1 at 5-7.) As a result, Petitioner was sentenced to a minimum of 66 years and three months incarceration to a maximum of 135 years incarceration. (Id. (citing Doc. 1 at 1 ¶ 3; Doc. 11 at 1 ¶ 3).)

         B. Procedural Background

         With this Petition, Petitioner challenges his 2004 conviction in the Court of Common Pleas of Lackawanna County, Pennsylvania, as described above. (Doc. 1 at 1.) Petitioner filed a direct appeal to the Pennsylvania Superior Court which affirmed his conviction and sentence on March 23, 2006. (Doc. 11-1 at 5-33.) He filed a Petition for Allowance of Appeal with the Pennsylvania Superior Court which was denied without comment on August 29, 2006. (Id. at 35-65, 67.)

         Petitioner also sought collateral relief pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”) in December 2006 which he filed pro se. (Doc. 40 at 4.) Following this initial PCRA filing, Petitioner filed two amended PCRA petitions pro se, the first in December 2007 and the second in December 2008. (Doc. 40 at 4.) He filed his final supplemental PCRA petition via his fourth appointed attorney, Terrence McDonald, Esq., on October 21, 2009. (Id. (citing Doc. 11-1 at 155-66).) Following a hearing, the PCRA court denied Petitioner's supplemental PCRA petition on May 18, 2011. (Id. (citing R. 164-84).)

         Petitioner appealed the PCRA court's decision to the Pennsylvania Superior Court which affirmed and expressly adopted the reasoning of the PCRA court on March 13, 2012. (Doc. 40 at 4 (citing 236-38).) Petitioner then filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court which was denied without comment on December 27, 2012. (Doc. 40 at 4 (citing Doc. 11-1 at 236-62).)

         As outlined by Magistrate Judge Schwab, the procedural history in this Court is similarly protracted. (Doc. 40 at 5-6.) Following the issuance of her Report and Recommendation, Petitioner sought an extension of time to file objections which the Court granted. (Docs. 41, 42.) He filed objections within the time allowed. (Docs 42, 43.) With the time having elapsed for any further filings, the Court will consider the Report and Recommendation and Petitioner's objections to it.

         II. Discussion

         A. Legal Standards

         1. Standard of Review

         When a petitioner files objections to a magistrate judge's report and recommendation, the reviewing court conducts a de novo review of those portions of the report to which objection is made. 28 U.S.C. § 636(b). To warrant de novo review, the objections must be both timely and specific. Goney v. Clark, 749 F.3d 5, 6-7 (3d Cir. 1984). The court may accept, reject, or modify--in whole or in part--the findings made by the magistrate judge. 28 U.S.C. § 636(b)(1). “Although the review is de novo, the law permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper.” Kates v. Bledsoe, Civ. A. No. 3:11-CV-391, 2012 WL 6721069, at *1 (M.D. Pa. Dec. 27, 2012) (citing United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7)). Uncontested portions of the report are reviewed for clear error. Cruz v. Chater, 990 F.Supp. 375, 376-77 (M.D. Pa. 1998).

         2. 28 U.S.C. § 2254

         As noted by the Third Circuit Court of Appeals, the Supreme Court has often said habeas corpus is an “‘extraordinary remedy' reserved for defendants who were ‘grievously wronged' by the criminal proceedings.” Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)). The reasons for restraint exercised by federal courts in reviewing and granting habeas relief are many, including the considerations of comity and federalism. “The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power and their good-faith attempts to honor constitutional law.” Engle v. Isaac, 456 U.S. 107, 128 (1982). Also, states have a recognized interest in the finality of convictions that have survived direct review within the state court system. Brecht v. Abrahamson, 507 U.S. 619, 620 (1993). As stated in Martinez v. Ryan, 566 U.S. 1 (2012), “[f]ederal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.” Id. at 9.

         A federal district court first considers rules regarding the state's primary opportunity to address claims of constitutional wrongdoing raised in the habeas petition. This inquiry involves the legal standards relevant to exhaustion of state court remedies and the doctrine of procedural default.

         a. Exhaustion and Procedural Default Legal Standards

         Absent special circumstances, the petition “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). If an applicant has the right to raise the questions presented under any available state procedure, he shall not be deemed to have exhausted the remedies available. 28 U.S.C. § 2254(c).

         To exhaust state court remedies, a state prisoner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review procedures.”[2] O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A claim has been exhausted when it has been “fairly presented” to the state court. Picard v. Connor, 404 U.S. 270, 275 (1971). This means that the federal habeas claim “must be the substantial equivalent of that presented to the state courts.” Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). Our Circuit Court has also described “fairly presented” to mean that a petitioner must have presented both the factual and legal substance of his claims in the state court's highest tribunal. Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012). He must do so “in a manner that puts them on notice that a federal claim is being asserted.” Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005). The allegations and supporting evidence must offer the state courts “a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citing Picard, 404 U.S. at 276-77). “The Supreme Court has instructed that a claim is not ‘fairly presented' if the state court ‘must read beyond a petition or brief . . . in order to to find material' that indicates the presence of a federal claim.” Collins v. Sec'y of Pa. Dep't of Corrections, 742 F.3d 528, 542 (3d Cir. 2014) (quoting Baldwin v. Reese, 541 U.S. 27, 32 (2004)). A petitioner meets his obligations to exhaust his claim “by fairly presenting the claim to the state courts, even if the state courts decline to specifically address that claim.” Jones v. Mooney, No. 1:13-cv-2526, 2015 WL 4950792, at *9 (M.D. Pa. Aug. 19, 2015) (citing Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004)); see also Collins, 742 F.3d at 545 n.10 (citing Smith v. Digmon, 434 U.S. 332, 333-34 (1978)). Conversely, “a claim may be exhausted ‘if the State's highest court expressly addresses the claim, whether or not it was fairly presented.'” Foote v. Del Papa, 244 Fed.Appx. 74, 78 (9th Cir. 2007) (not precedential) (quoting Casey v. Moore, 386 F.3d 896, 916 n.18 (9th Cir. 2004)); see also Sandgathe v. Maass, 314 F.3d 371, 377 (9th Cir. 2002) (citing Orr v. Orr, 440 U.S. 268, 274-75 (1978)) (“there is no point asking whether a state court had a full and fair opportunity to resolve federal constitutional claims . . . when the state court in fact did so); Moore v. DiGuglielmo, 489 Fed.Appx. 618, 623 (3d Cir. 2012) (not precedential) (citing, inter alia, Walton v. Caspari, 916 F.2d 1352, 1356 (8th Cir. 1990) (“A habeas [p]etitioner need not actually have raised a claim in a state petition in order to satisfy the exhaustion [requirement], if a state court with the authority to make a final adjudication actually undertook to decide the claim on its merits in petitioner's case.”)).

         The petitioner bears the burden of proving exhaustion of all available state remedies. Bronshtein, 404 F.3d at 725 (citing Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993)).

         “When a claim is not exhausted because it has not been ‘fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.'” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (quoting 28 U.S.C. § 2254(b)). Claims deemed exhausted because of a state procedural bar are procedurally defaulted. See, e.g., Lines, 208 F.3d at 159-60 (citingMcCandless, 172 F.3d at 260). The district court ...

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