United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
SANDRA MOORE WELLS UNITED STATES MAGISTRATE JUDGE.
before the court is a Petition for a Writ of Habeas Corpus
filed, pro se, by Carlton Roy Smith
(“Petitioner”) pursuant to 28 U.S.C. § 2254.
Petitioner is serving a four to eight year sentence at the
State Correctional Institution-Laurel Highlands and seeks
habeas relief based on errors he claims arose during his
cross-examination. The Honorable Jan E. DuBois referred this
matter to the undersigned for preparation of a Report and
Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, it is recommended that
Petitioner not obtain habeas relief.
events leading to Petitioner's conviction and sentencing
are the following:
On April 4, 2011, the police received information about a
suspicious package at a Federal Express facility. Police
inspected the package, which contained 15.25 pounds of
marijuana. Police conducted surveillance and an undercover
delivery to the address listed on the package. [Petitioner],
who did not live at that address, picked up the package and
was immediately arrested. After waiving his
Miranda rights and giving a statement to police,
he was charged with criminal conspiracy, criminal use of a
communication facility, possession with intent to deliver,
and use of drug paraphernalia.
[Petitioner] filed a motion to suppress the statement he gave
to police, which the court denied following a hearing on July
18, 2011. The following day, a jury convicted [Petitioner] of
the above-mentioned charges. On November 3, 2011, the court
sentenced [Petitioner] to not less than four nor more than
eight years' imprisonment on the possession with intent
to deliver count, and a concurrent term of not less than one
year nor more than three years' imprisonment on the
criminal conspiracy count. [Petitioner] filed post-sentence
motions on November 14, 2011. A post-sentence motion hearing
was held on January 23, 2012, and the court denied
[Petitioner's] motions on January 27, 2012.
[Petitioner's] timely appeal followed.
Commonwealth v. Smith, No. 550 EDA 2012, slip op. at
1-2 (Pa. Super. Ct. Sept. 24, 2012) (“2012 Super. Ct.
Op.”). On appeal, Petitioner claimed that the trial
court erred by failing to: (1) grant a mistrial when the
prosecutor repeatedly cross-examined Petitioner in a manner
that implied he had previously been involved in criminal drug
activity; (2) give a cautionary instruction, or grant a
mistrial, because of the prosecutor's cross-examination;
and (3) grant Petitioner's motion to suppress his
statement as involuntary. Id. at 2-3. The
Pennsylvania Superior Court concluded that Petitioner's
first two claims were waived and his last claim lacked merit.
Id. at 3-14. On February 4, 2015, the Pennsylvania
Supreme Court denied allowance of appeal. Answer
(“Ans.” at 3.)
February 8, 2016, Petitioner filed a pro se petition
under the Post Conviction Relief Act (“PCRA”), 42
Pa. Cons. Stat. Ann. §§ 9541-46. Ans. at 3. Court
appointed counsel subsequently filed a no-merit letter and
requested permission to withdraw, pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550A.2d 213 (Pa. Super. Ct.
1988) (en banc). Ans. at 3. On December 15,
2016, the PCRA court denied PCRA relief and granted
counsel's motion to withdraw. Id. at 4. The
Pennsylvania Superior Court affirmed the denial of PCRA
relief, finding that all of Petitioner's claims were
waived or previously litigated. Commonwealth v.
Smith, No. 321 EDA 2017, slip op. at 7-8 (Pa. Super. Ct.
Nov. 1, 2017) (“2017 Super. Ct.
Op.”). Petitioner did not seek allowance of
appeal. Ans. at 4.
January 6, 2018,  Petitioner filed the instant habeas
petition, claiming: (1) the prosecutor violated
Petitioner's due process rights by cross-examining him in
a manner that suggested he had previously committed a drug
trafficking offense; and (2) the trial court violated
Petitioner's due process and equal protection rights by
failing to provide a curative instruction when the prosecutor
engaged in the cross-examination that is the basis for claim
one. Pet. at 8, 10. The Commonwealth responds that
Petitioner's claims are not cognizable, unexhausted and
procedurally defaulted, or, alternatively, lack merit. Ans.
at 9-37. This court concludes that Petitioner's claims
are unexhausted and procedurally defaulted.
Exhaustion and Procedural Default
habeas petitioner must exhaust state court remedies before
obtaining habeas relief. 28 U.S.C. § 2254(b)(1)(A). The
traditional way to exhaust state court remedies in
Pennsylvania was to fairly present a claim to the trial
court, the Pennsylvania Superior Court and the Pennsylvania
Supreme Court. See Evans v. Court of Common Pleas,
Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992).
However, in light of a May 9, 2000 order of the Pennsylvania
Supreme Court, it is no longer necessary for Pennsylvania
inmates to seek allocatur from the Pennsylvania
Supreme Court in order to exhaust state remedies. See
Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir.
habeas petitioner has presented his claim to the state
courts, but the state courts have declined to review the
claim on its merits, because the petitioner failed to comply
with a state rule of procedure when presenting the claim, the
claim is procedurally defaulted. See Harris v. Reed,
489 U.S. 255, 262-63 (1989). When a state court has declined
to review a claim based on a procedural default and the claim
is not later addressed on the merits by a higher court, the
habeas court must presume that the higher state court's
decision rests on the procedural default identified by the
lower state court. See Ylst v. Nunnemaker, 501 U.S.
797, 803 (1991). Finally, when a habeas petitioner has failed
to exhaust a claim and it is clear that the state courts
would not consider the claim because of a state procedural
rule, the claim is procedurally defaulted. See Coleman
v. Thompson, 501 U.S. 722, 735 n.1 (1991).
defaulted claims cannot be reviewed unless “the
[petitioner] can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750. In order to demonstrate
cause, the petitioner must show that “some objective
factor external to the defense impeded [the petitioner's]
efforts to comply with the state's procedural
rule.” Id. at 753 (citation omitted). Examples
of suitable cause include: (1) a showing that the factual or
legal basis for a claim was not reasonably available; (2) a