United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
NOW, this 1st day of May, 2018, upon consideration
of the parties' submissions (ECF Nos. 14, 17 & 18),
and after careful and independent review of Magistrate Judge
Linda K. Caracappa's Report and Recommendation (ECF No.
20), it is ORDERED that:
Report and Recommendation is
Galarza-Ruiz's petition for a writ of habeas corpus is
DENIED; and, 3. The Clerk of Court shall
close the case for statistical purposes.
 When no objection is made to a Report
and Recommendation, 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 Harris v. Mahally, No. 14-2879, 2016
WL 4440337, at *4 (E.D. Pa. Aug. 22, 2016). The Court finds
no clear error and accepts Judge Caracappa's
recommendation for the reasons that follow.
On July 17, 2014, Galarza-Ruiz entered an open guilty
plea to ten counts of robbery, five counts of criminal
conspiracy and one count of burglary. (Def.'s Resp., Ex.
B, ECF No. 17.) On September 30, 2014, he was sentenced to
fifteen to thirty years' imprisonment. (Id., Ex.
C.) Galarza-Ruiz seeks habeas relief, arguing that (1) his
guilty plea was involuntary and entered in violation of his
due process rights because he was never told he could get
consecutive sentences and (2) trial counsel was ineffective
for failing to inform him of same. (See Pl.'s
Pet., ECF No. 14.) The Commonwealth opposes
Galarza-Ruiz's request for review because his petition is
untimely, unexhausted, procedurally defaulted and
non-meritorious. (Def.'s Resp. at 6, ECF No. 17.)
“In the case of a person incarcerated from a
judgment of a state court, a prerequisite to federal habeas
review is that the petitioner have exhausted the remedies
available to him in the state courts to the extent such
remedies exist and are effective.” Werts v.
Vaughn, 228 F.3d 178, 192 (3d Cir. 2000) (citing 28
U.S.C. § 2254(b)(1)). “Where a state court refuses
to consider a petitioner's claims because of a violation
of state procedural rules, a federal habeas court is barred
by the procedural default doctrine from considering the
claims, unless the habeas petitioner can show
‘cause' for the default and ‘prejudice'
attributable thereto.” Johnson v. Pinchak, 392
F.3d 551, 556 (3d Cir. 2004) (citations omitted). Ineffective
assistance of counsel can constitute cause for default,
however, “the exhaustion doctrine generally requires
that an ineffective assistance claim ‘be presented to
the state courts as an independent claim before it may be
used to establish cause for a procedural default.'”
Werts, 228 F.3d at 193 (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)).
Galarza-Ruiz's claims are unexhausted and
procedurally defaulted. Galarza-Ruiz failed to argue in his
direct appeal that his plea was involuntary. (Def.'s
Resp., Ex. G & Ex. H-2.) Further, in conducting an
independent review of the record “to discern if there
were any additional, non-frivolous issues” counsel
overlooked, the Pennsylvania Superior Court held that to the
extent Galarza-Ruiz's appeal could be construed as
challenging the voluntariness of his plea, the claim was
waived by his failure to either object during the plea
colloquy or file a motion to withdraw the plea within ten
days of sentencing. (Id., Ex. I at 8.) Thus, for
this Court to review the due process claim, Galarza-Ruiz
would have to show cause and prejudice.
Even assuming Galarza-Ruiz could rely on his
ineffective assistance of counsel claim to show cause for the
default, that claim is also unexhausted and procedurally
defaulted. In his PCRA petition, Galarza-Ruiz alleged that
trial counsel provided ineffective assistance at his guilty
plea because he would not have plead guilty if he had known
that he could receive consecutive sentences. (Id.,
Ex. K.) However, Galarza-Ruiz decided to withdraw his PCRA
petition (see id., Ex. M) and any attempt to refile
would now be untimely. See 42 Pa.C.S.A. §
Galarza-Ruiz asks the Court to excuse the default
because his PCRA counsel “talked [him] into withdrawing
the PCRA Petition” instead of arguing that trial
counsel was ineffective. (Pl.'s Reply at 1-2, ECF No.
18.) Generally, ineffective assistance of post-conviction
counsel does not qualify as “cause” to excuse a
procedural default. Greene v. Superintendent Smithfield
SCI, 882 F.3d 443, 449 (3d Cir. 2018) (citing
Coleman v. Thompson, 501 U.S. 722, 750 (1991)). A
narrow exception to the Coleman standard was set
forth in Martinez v. Ryan, 566 U.S. 1 (2012), and
“will serve to establish cause when ‘three
conditions are met: (a) the default was caused by ineffective
assistance of post-conviction counsel or the absence of
counsel (b) in the initial-review collateral proceeding . . .
and (c) the underlying claim of trial counsel ineffectiveness
is ‘substantial, ' meaning ‘the claim has
some merit[.]'” Mack v. Superintendent Mahanoy
SCI, 714 Fed.Appx. 151, 153 (3d Cir. 2017) (quoting
Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014)).
Under the two-part analysis established in Strickland v.
Washington, 466 U.S. 668 (1984), for ineffective
assistance, Galarza-Ruiz must show 1) that counsel's
actions “were not supported by a reasonable
strategy” and 2) that the errors were prejudicial.
United States v. Washington, 869 F.3d 193, 202 (3d
Cir. 2017) (quoting Massaro v. United States, 538
U.S. 500, 504-05 (2003)).
Martinez does not excuse default in this
case. PCRA counsel did not fail to raise the defaulted claim;
rather, after thoroughly discussing the issue with his
lawyer, Galarza-Ruiz decided to withdraw his PCRA petition.
(See Def.'s Resp., Ex. M.) The PCRA Court
conducted a colloquy with Galarza-Ruiz to ensure that his
decision to withdraw was knowing and intelligent.
(Id.) Galarza-Ruiz does not allege any unreasonable
“errors” that his PCRA counsel committed. He
simply now disagrees with his decision to withdraw his PCRA
petition based on the advice he received from his ...