United States District Court, E.D. Pennsylvania
JOSEPH P. GUARRASI
TAMMY FERGUSON, et al.
REPORT AND RECOMMENDATION
SANDRA MOORE WELLS, UNITED STATES MAGISTRATE JUDGE
before the court is a Petition for a Writ of Habeas Corpus
filed by Joseph P. Guarrasi (“Petitioner”),
pro se, pursuant to 28 U.S.C. § 2254.
Petitioner is serving a six and one-half to fifteen-year term
of incarceration at the State Correctional Institution-Benner
Township. He seeks habeas relief based on allegations of
involuntary nolo contendere and guilty pleas, actual
innocence, illegal search and seizure, and ineffective
assistance of counsel. The Honorable Timothy J. Savage
referred this matter to the undersigned for preparation of a
Report and Recommendation, pursuant to 28 U.S.C. Â§
636(b)(1)(B). For the reasons set forth below, it is
recommended that Petitioner not be afforded habeas relief.
FACTUAL AND PROCEDURAL HISTORY
March 25, 2005, in the Court of Common Pleas of Bucks County,
Petitioner entered a nolo contendere plea to a
charge of attempt to commit criminal homicide and guilty but
mentally ill to a number of attempts to commit aggravated
assault, kidnapping, unlawful restraint, false imprisonment,
and burglary, as well as criminal solicitation to commit
insurance fraud. N.T. 3/25/05 at 7-9. Later, on May 25, 2005,
the trial court held a hearing and determined that Petitioner
met the criteria to be found guilty but mentally ill under 18
Pa. Cons. Stat. Ann. § 314; on the same day, Petitioner
was sentenced to six and one-half to fifteen years of
imprisonment. Answer (“Ans.”) at 1.
appealed, challenging discretionary aspects of his sentence,
and, on July 6, 2006, the Pennsylvania Superior Court
affirmed his judgment of sentence. Commonwealth v.
Guarrasi, No. 1796 EDA 2005, slip op. at 9 (Pa. Super.
Ct. July 6, 2006) (“2006 Super. Ct. Op.”).
Petitioner did not seek allowance of appeal
(“allocatur”) in the Pennsylvania
Supreme Court. Pet. at 6.
29, 2007, Petitioner sought relief under Pennsylvania's
Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.
Stat. Ann. §§ 9541-46. Pet'r Mem. in Support of
Habeas Corpus Pet. (“Pet. Mem.”) at 5, Ans. at 2.
Petitioner was appointed three separate attorneys and several
counseled PCRA hearings were held in 2008. Id.
Thereafter, Petitioner was permitted to proceed without
counsel, id., and thirteen more hearings were held
from 2010 to 2014. Pet. Mem. at 5-6, Ans. at 2. Notably, in
February 2011, a crucial Commonwealth witness, Michael
Samios, died. Pet. Mem. at 6. On October 20, 2015, the PCRA
court denied relief. Pet. Mem. at 6, Ans. at 3. Upon appeal,
on November 15, 2016, the Pennsylvania Superior Court
affirmed, utilizing the PCRA court's rationale for
resolution of the claims Petitioner had properly preserved
for appeal. Commonwealth v. Guarrasi, No. 3541 EDA
2015, slip op. at 6 (Pa. Super. Ct. Nov. 15, 2016)
(“2016 Super. Ct. Op.”). Thereafter, on May 31,
2017, the Pennsylvania Supreme Court denied
allocatur. Pet. Mem. at 6, Ans. at 3.
7, 2017,  Petitioner filed his habeas petition,
claiming: (1) his March 28, 2005 nolo contendere and
guilty pleas were involuntary, because he was incompetent,
there was no factual basis for the pleas, and there were
incorrect descriptions of some of the crimes to which he was
admitting; (2) he is actually innocent of the crimes to which
he admitted; (3) the wiretap evidence seized by the police
(conversations between Petitioner and Mr. Samios) was
obtained in violation of the Fourth Amendment and
Pennsylvania law; (4) trial counsel rendered ineffective
assistance when they permitted Petitioner to plead nolo
contendere and guilty on March 28, 2005, because (a)
Petitioner was unmedicated at the time, (b) the plea colloquy
was defective, (c) they had failed to move to suppress the
wiretap evidence, (d) they had failed to listen to the
wiretap evidence, (e) they misrepresented the wiretap
evidence to Petitioner, (f) a promised sentence was not
obtained, (g) they failed to engage an expert, (h) they
failed to obtain follow-up wiretap discovery, (i) they failed
to obtain transcripts of the wiretap recordings, which would
have revealed affirmative defenses, tampering with the
wiretap evidence and exculpatory wiretap evidence. Pet. at 8,
10, 12-14. The Commonwealth responds that all of
Petitioner's claims are non-cognizable, procedurally
defaulted, or lack merit. Ans. at 19-61.
court finds that claim two is non-cognizable, the portion of
claim three that is based on state law is non-cognizable, and
the portion of claim three based on the Fourth Amendment is
barred by Stone v. Powell, 428 U.S. 465 (1976).
Claim one is procedurally defaulted. The multiple subparts of
claim four are procedurally defaulted or unmeritorious.
Claim Two and the State-Law Portion of Claim Three are not
claim two, Petitioner alleges that he is actually innocent of
the offenses to which he pleaded nolo contendere or
guilty. However, the U.S. Supreme Court has declined to hold
that the federal constitution authorizes relief for a
defendant who is actually innocent. Herrera v.
Collins, 506 U.S. 390, 400, 404 (1993). Hence,
Petitioner's free-standing actual innocence claim is not
of claim three, Petitioner alleges that the wiretaps used to
obtain incriminating evidence against him were obtained in
violation of several provisions of the Pennsylvania Wiretap
Act. However, habeas relief is available only for violations
of the Constitution, laws or treaties of the United States.
28 U.S.C. § 2254(a). This claim, based upon state law
error, is not cognizable. See Estelle v. McGuire,
502 U.S. 62, 67-68 (1991).
The Balance of Claim Three is Barred by Stone v.
Supreme Court has held that federal habeas relief cannot be
granted based upon a Fourth Amendment claim, if the
petitioner had an opportunity to litigate that claim in state
court. Stone v. Powell, 428 U.S. 465, 494 (1976).
This bar is applicable so long as there is no structural
defect in the state court proceeding that prevented fair
consideration of the defendant's Fourth Amendment claim.
Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir.
claim three, Petitioner alleges that the wiretaps in his case
were obtained in violation of the Fourth Amendment. Although
Petitioner complains that the wiretaps were obtained and
preserved improperly, he does not allege that any structural
defect in the state court prevented him from raising his
challenges on direct appeal. Further, since he had pled
nolo contendere and guilty, Petitioner waived
potential Fourth Amendment challenges to the evidence against
him, N.T. 3/28/05 at 3-4, as a basis to grant habeas relief.
Marshall, 307 F.3d at 82.
Claims One and Four (a), (e)-(g) and (i) Are Procedurally
General Principles Regarding 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
showing that some interference by state officials made
compliance with the state procedural rule impracticable; (3)
attorney error that constitutes ineffective assistance of
counsel. Id. at 753-54. The Supreme Court held that
ineffective assistance of state post-conviction counsel
cannot constitute cause, because there is no constitutional
right to counsel during those proceedings. Id. at
752-53. Twenty-one years later, the Supreme Court announced a
limited exception to the Coleman rule and held that
a habeas petitioner could demonstrate cause to excuse his
procedural default of an ineffective assistance of trial
counsel claim if his state requires that claims of trial
counsel ineffectiveness be deferred to state collateral
proceedings and if initial state-collateral-counsel
ineffectively failed to raise the claim. Martinez v.
Ryan, 566 U.S. 1, 9 (2012).
fundamental miscarriage of justice exception is limited to
cases of “actual innocence.” Schlup v.
Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d
808 (1995). In order to demonstrate that he is
“actually innocent, ” the petitioner must present
new, reliable evidence of his innocence that was not
presented at trial.Id. at 316-17, 324. The court
must consider the evidence of innocence presented, along with
all the evidence in the record, even that which was excluded
or unavailable at trial. Id. at 327-28. Once all
this evidence is considered, the petitioner's defaulted
claims can only be reviewed ...