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Smith v. Luther

United States District Court, E.D. Pennsylvania

June 21, 2018




         Presently 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.


         The 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[2] 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.)

         On 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.”).[3] Petitioner did not seek allowance of appeal. Ans. at 4.

         On January 6, 2018, [4] 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.


         A. Exhaustion and Procedural Default

         A 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. 2004).

         If a 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.[5] See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

         Procedurally 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 showing ...

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