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Guarrasi v. Ferguson

United States District Court, E.D. Pennsylvania

July 16, 2019

JOSEPH P. GUARRASI
v.
TAMMY FERGUSON, et al.

          REPORT AND RECOMMENDATION

          CAROL SANDRA MOORE WELLS, UNITED STATES MAGISTRATE JUDGE

         Presently 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. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Petitioner not be afforded habeas relief.

         I. FACTUAL AND PROCEDURAL HISTORY[1]

         On 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.

         Petitioner 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.

         On June 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.

         On June 7, 2017, [2] 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[3] 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.

         This 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.

         II. DISCUSSION

         A. Claim Two and the State-Law Portion of Claim Three are not Cognizable

         In 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 cognizable.

         In part 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).

         B. The Balance of Claim Three is Barred by Stone v. Powell

         The 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. 2002).

         In 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.

         C. Claims One and Four (a), (e)-(g) and (i) Are Procedurally Defaulted

         1. General Principles Regarding 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.[4] 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 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).

         The 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.[5]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 ...


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