Opinion
Civil Action No. 4:04-2348.
November 16, 2005
REPORT AND RECOMMENDATION
The petitioner, an inmate incarcerated at the Pennsylvania State Correctional Institution at Huntingdon ("SCI-Huntingdon"), Pennsylvania, filed this pro se petition for a writ of habeas corpus on October 26, 2004, pursuant to 28 U.S.C. § 2254. (Doc. No. 1). The petitioner challenges his criminal conviction and sentencing in the Lebanon County Court of Common Pleas. He claims ineffective assistance of trial and appellate counsel.
Upon preliminary review the undersigned recommended that the petition be dismissed for failure to exhaust state court remedies, and because the petition was time-barred pursuant to provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Doc. No. 3). The petitioner filed objections to the Report and Recommendation. On February 10, 2005, the district court remanded with instructions that the petition should be served upon the respondents, and that the record be further developed in order to determine whether the statute of limitations should be tolled under the equitable tolling provisions of the AEDPA. (Doc. No. 7). The respondents were served with the petition on February 11, 2005, however, apparently being unaware of the prior proceedings in the matter, the respondents maintained that the petition should be dismissed because the petitioner had not exhausted state court remedies. In the alternative, the respondents argued that the petition should be dismissed because the petitioner cannot prevail on the ineffective assistance of counsel claims. (Doc. No. 13).
Much of the background of this case was set forth in the prior Report and Recommendation. A brief recap, however, is appropriate. The petitioner was convicted on October 9, 2002, in the Lebanon County Court of Common Pleas of Aggravated Indecent Assault, Indecent Exposure, Corruption of Minors and Endangering the Welfare of Children. The conviction resulted from charges brought against the petitioner alleging that he had sexually molested his live-in girlfriend's eleven year old niece during the night of a stay-over which preceded a family party the following day. The child had not reported the incident to anyone. The charges came about when the child passed a note in school relating the incident to a friend which was intercepted by a teacher. The teacher reported the note to the County Children and Youth agency. The victim testified at length at the trial as to what had happened on the night in question. She stated that the petitioner came into her room, on three occasions during the night, sexually fondled her, and exposed himself to her. (N.T. October 9, 2002, pp. 26-65).
After the jury returned a guilty verdict, the petitioner requested that new counsel be appointed. On that date new counsel ("substitute counsel") was assigned to him by the court. The petitioner was sentenced on January 22, 2003, to an aggregate term of 13½ to 27 years incarceration. The petitioner claimed that he told substitute counsel that he wished to file a direct appeal, and a Post Conviction Relief Act petition ("PCRA") but counsel failed to do so. Additionally, he did not advise the petitioner, in a timely manner, that he would not do so. (Doc. No. 1, ¶¶ 1, 12 (A) and (B), 13, 15).
The petitioner also claimed that trial counsel was ineffective for failing to call his parole officer as a character witness, and for failing to pursue a line a questioning of certain witnesses the petitioner believed would have established his innocence.
As noted in the original Report and Recommendation, it is undisputed that the petitioner did not exhaust state court remedies, substitute counsel did not file a direct appeal, and did not file a PCRA petition. It is also undisputed that the petitioner did not file the habeas corpus petition within the AEDPA limitations period.
On remand, the undersigned was to make a determination as to whether the AEDPA exhaustion requirement should be waived, and whether the statute of limitations period should be tolled. The court directed that a determination was to be made whether the plaintiff had, in some extraordinary way, been prevented from asserting his appeal and PCRA rights due to his having been misled by substitute counsel regarding his appeal and PCRA rights. The district court suggested it was important to determine what transpired between Velasquez and his attorney, during the period between the sentencing on January 22, 2003, and April 22, 2004, the date counsel sent Velasquez a letter informing him there was no basis for either an appeal or a PCRA petition.
In light of the foregoing, a hearing was held on October 13, 2005. Both the petitioner and substitute counsel testified, and documentary evidence was received, including the trial transcript. Substitute counsel stated that although he was remiss in corresponding with the petitioner in order to memorialize his conversations with the petitioner, he had several meetings with the petitioner in the prison in which he discussed the petitioner's wish to file a direct appeal and a PCRA petition. Counsel stated that he told the petitioner that he had also spoken with Bonnie Kafafy and Tammy Aungst, witnesses the petitioner wanted called, or more extensively questioned, at trial. Substitute counsel explained that neither witness offered any new information that could possibly be of benefit to the petitioner. He stated that he told the petitioner that he did not believe that there was any basis for either an appeal or a PCRA petition.
Counsel stated further that he was aware that the petitioner had repeatedly stated that he wanted to file both an appeal and a PCRA petition. As noted below, counsel testified concerning the issues raised by the petitioner and explained in his letter of April 22, 2004, why he believed that the petitioner's complaints were without merit.
The petitioner testified that he believed that counsel had agreed to file both an appeal and a PCRA petition. Petitioner wished to raise an ineffective assistance of trial counsel claim because he believed that there were three issues which should have been addressed at trial. First, he believed that his parole officer should have been called as a character witness to testify to the fact that he had been in compliance with parole conditions for many years following his prior conviction. Second, he believed that trial counsel had erred in failing to ask questions of his live-in partner, Bonnie Kafafy, regarding the chronology of events which occurred on the night the alleged crimes took place. Finally, he believed that trial counsel was ineffective for failing to question the mother of the victim in order to establish that the victim was with her on the night of the alleged assault.
In his letter of April 22, 2004, substitute counsel addressed the issues which the petitioner wished to raise by way of direct appeal or PCRA petition.
He stated:
You sent me several pages detailing your complaints about your trial. Generally they were centered around your trial lawyer's failure to call certain witnesses or his failure to question witnesses about certain areas you felt would have been beneficial to your case.
1. Paul Wehrman — your state parole officer.
He should not have been called as a witness. Charlie Jones (trial counsel) was successful in keeping your past criminal record out of evidence. If you called your P.O. as a witness it would have opened up your past criminal record. It would have hurt your case for the jury to know you had a prior criminal record. Also, whether or not you were honest with your P.O. is inadmissible.
2. Tammy Aungst — (the victim's mother.)
I don't understand any of the questions you wanted to ask her. They have nothing to do with establishing your innocence or bolstering your credibility.
3. Bonnie Kafafy —
She doesn't remember whether the sleep over was at the Christmas party or the family reunion. The fact she woke you up to check on the ham doesn't provide you with an alibi. It just provides you with a reason to be awake in the middle of the night.
Unfortunately, I can find nothing about your trial which would justify granting you a new trial. Accordingly, I have not filed a PCRA requesting one . . .
(Respondent's Exhibit No. 2).
The petitioner was sentenced on January 22, 2003. This letter dated April 22, 2004, was already beyond the applicable limitation periods for either an appeal or a PCRA petition. As a result, the petitioner is now precluded from seeking PCRA review of his claims. The Pennsylvania Supreme Court "is now `consistently and regularly' applying the PCRA statute of limitations in all cases, regardless of the penalty involved." Bell v. Varner, 2001 WL 1021135 * 12 (E.D. Pa. 2001) (citing Holman v. Gillis, 58 F.Supp.2d 587, 589 (E.D. Pa. 1999). See, e.g., Commonwealth v. Yarris, 557 Pa. 12 ( 731 A.2d 581 (1999).
The PCRA statute of limitations provides that any PCRA petition "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final." See 42 Pa. Cons. Stat. § 9545(b)(1). Thus, more than one year passed between when the petitioner's conviction became final on February 22, 2003, (thirty days after sentencing on January 22, 2003) and the date of the letter advising the petitioner that no PCRA petition would be filed.
Substitute counsel conceded at the hearing that he was remiss in failing to inform the petitioner, within the applicable time frames, that he did not intend to file either an appeal or a PCRA petition. Under the circumstances, the court believes that the interests of justice require that the failure to exhaust state court remedies should be excused, the AEDPA statute of limitations should be tolled, and that the court should undertake a substantive analysis of the ineffective assistance of counsel claims.
In reviewing a habeas corpus petition bought pursuant to 28 U.S.C. § 2254 this court must give considerable deference to the determinations of state courts. Section 2254(d) states, in pertinent part, that federal habeas corpus relief is precluded where the claim was adjudicated on the merits in state court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States, or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
( 28 U.S.C § 2254(d)). The United States Supreme Court stated inWilliams v. Taylor, 529 U.S. 362 (2000) that:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.Williams, 529 U.S. at 412-413. Additionally, state court proceedings are presumed to be correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The court will apply these standards in reviewing the petitioner's claim. As noted above, the petitioner raises only one issue in the habeas corpus petition, and that is ineffective assistance of counsel. He argues that his Sixth Amendment right to counsel was violated because counsel failed to file either a direct appeal or a PCRA petition. Subsumed into this claim, however, is his complaint that trial counsel also was ineffective.
A petitioner must meet a two prong test in order to prevail on a claim of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable.Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. In evaluating counsel's performance, the court should be "highly deferential" and should "indulge a strong presumption" that counsel's actions might be considered sound strategy. Duehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999).
Reviewing the testimony and evidence received at the October 13, 2005 hearing, it is apparent that the petitioner believes that he would not have been convicted had trial counsel called his parole officer as a witness, and if he had pursued a certain line of questioning of witnesses Bonnie Kafafy and Tammy Aungst. The petitioner believes that if this matter had been reviewed, either on direct appeal or via a PCRA petition, that his conviction would be overturned, or at the very least he would be granted a new trial.
A district court may only grant relief on a habeas claim involving state court factual findings where the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." See Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th. Cir. 2001); 28 U.S.C. § 2254(d)(2). Mere disagreement with the state court's determination, or even erroneous fact-finding, is insufficient to grant relief if the state court acted reasonably. Weaver, 241 F.3d at 1030. On habeas review, a petitioner is entitled to relief only if a federal court finds, after reviewing the trial court record, that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307 (1979). Moreover, a factual determination made by a state court shall be presumed to be correct, unless the petitioner rebuts the presumption by clear and convincing evidence. Alexander v. Shannon, 2005 WL 121930 (E.D. Pa. 2005); 28 U.S.C. § 2254(e)(1). "A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). In making this analysis, the court must view the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at 319.
In order to prevail on an ineffective assistance of counsel claim, a petitioner must first show that counsel's performance was deficient. If he does so, he must then show the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. The petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The reasonable probability that the result would have been different must be demonstrated by "clear and convincing evidence." "Clear and convincing evidence is `so clear, direct, weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." Schwartz v. Colleran, et al. 2005 WL 1993647 (E.D. Pa. 2005) ( citing United States v. Fire Ins. Co. v. Royal Ins. Co., 759 F.2d 306, 309 (3d Cir. 1989). The court will apply these standards in reviewing the petitioner's various claims.
It is apparent that substitute counsel's performance was deficient in that he did not explain to the petitioner, in a timely manner, that he was not going to file either an appeal or a PCRA petition. That having been said, it is not likely that substitute counsel's performance prejudiced the petitioner in any substantial manner. There is little reason to believe that the petitioner could have prevailed either on direct appeal or on a PCRA petition. Furthermore, there is no indication that trial counsel's performance was deficient.
We first consider the petitioner's claims in the context of trial counsel's performance. His first claim is that trial counsel erred in failing to call his parole officer as a character witness. At the hearing held in this matter, substitute counsel explained that he believed that trial counsel made an appropriate tactical decision to not call the petitioner's parole officer as a character witness. He stated that to do otherwise would have been far more prejudicial, than beneficial, to the petitioner's case because it would have placed the jury on notice that the petitioner had a prior criminal record. Applying the standards set forth in Strickland, supra, it appears obvious that the decision not to call the parole officer was part of a reasonable tactical strategy on the part of trial counsel. In fact, under the circumstances described here, it appears that the decision was astute. The probable negative consequences of exposing the prior criminal record clearly outweighs any possible probative value. As a result, it is highly unlikely that the failure to call this witness would have negatively affected the ultimate outcome of the trial.
The second concern that the petitioner raised was that trial counsel should have questioned Bonnie Kafafy more thoroughly regarding the chronology of events on the night in question. He claims that Ms. Kafafy would have testified that on the night in question, he and Ms. Kafafy had put a ham in the oven for the next day's family celebration, and that Ms. Kafafy had awakened the petitioner several times during the night so that he could check on the ham. The petitioner believes that somehow this information is important to establish an alibi. We agree with substitute counsel, however, that even if this information had been explored by trial counsel, it would not have benefitted the petitioner's defense. The court believes that substitute counsel's assessment of this potential testimony was correct. All it would have established is that the petitioner was in fact awake, had the opportunity to commit the crime and was moving about the apartment around the time of the crime. Getting up, allegedly to check on a cooking ham, does not preclude, in any way, that he could have committed the acts for which he was convicted. Rather, if anything, it tends to support the prosecutions theory.
Finally, the petitioner believes that Tammy Aungst would have testified that the victim was not in the petitioner's apartment on the night in question. The petitioner wrote a letter to substitute counsel in which he included a number of proposed questions which he felt, had they been directed to Tammy Aungst, would have established that the victim had not stayed over-night on the night in question. The petitioner suggests that there were two celebrations in December: a family reunion and a family Christmas party. He believes that Tammy Aungst would have testified that the victim did not stay overnight the night before the family reunion. Even if true, this claim would not help petitioner. First of all, Bonnie Kafafy testified that she could not remember when the victim stayed overnight; whether it was the night before the Christmas party, or the night before the family reunion, but she did testify unequivocally that the victim had stayed overnight at one point during the time frame alleged. (N.T. pp. 69). In addition, the victim testified extensively to the events which transpired on that night in December 2000. It is well established that uncorroborated testimony of a sexual assault victim, if believed by a jury, is sufficient to support a conviction. See Commonwealth v. Westcott, 362 Pa. Super. 176, 523 A.2d 1140, (1986); Commonwealth v. Poindexter, 646 A.2d 1211, 1214, 435 Pa. Super. 509 (1994). It is, therefore, highly unlikely that even if Tammy Aungst had been called to testify, and even if she did testify that the victim had not stayed overnight the night before the family reunion, it would not have affected the ultimate determination by the jury that an assault had occurred on a night in December 2000.
Furthermore, since the petitioner's claim, in this regard, has its basis in a challenge to the sufficiency of the evidence, a federal court has no power to grant habeas corpus relief based upon a finding that the state conviction is against the weight of the evidence. See Tibbs v. Florida, 457 U.S. 31, 42-45 (1982). This is because a challenge to the weight of the evidence necessarily requires an assessment of the credibility of the evidence. A state court's credibility determinations are binding on federal courts in habeas proceedings. Ortiz-Santiago v. Stickman III, et. al, 2004 WL 1119930 (E.D. Pa. 2004) (citingDemosthenes v. Baal, 495 U.S. 731 (1990)).
The petitioner's final claims, that substituted counsel was ineffective for not filing either an appeal or a PCRA petition, must fail as well. As to Direct Appeal, substitute counsel testified that he did not file a direct appeal because he believed that the petitioner's claims had no merit. The law presumes counsel's effectiveness, and counsel will not be deemed ineffective for failure to raise baseless claims. Nor will counsel's decision not to embark upon a particular course of action be deemed ineffective where it can be reasonably assumed that no benefit would accrue from the complained of ineffectiveness, and it does not appear that the decision in question was made as a result of sloth or ignorance of available alternatives. Commonwealth v. Gabrielson, 370 Pa. Super. 271, 280, 536 A.2d 401, 412 (1988) ( citing Commonwealth v. Butler, 516 Pa. 522, 533 A.2d 992 (1987)).
As to the claim that substitute counsel was ineffective for failing to file a PCRA petition, there is no constitutional right to counsel for a collateral attack on a conviction. Fithian v. Shannon, et. al., 2002 WL 1636004 *2 (E.D. Pa. 2002) ( citing Lines v. Larkins, 208 F.3d 153, 165 (3d Cir. 2000)). "[A] claim of ineffective assistance of PCRA counsel is not cognizable in a federal habeas corpus petition because the right to effective assistance of PCRA counsel exists pursuant to state law, and is not mandated by the Constitution or laws or treaties of the United States." Holman v. Gillis, 58 F. Supp.2d 587, 597 (E.D. Pa. 1999). As the claim is not cognizable in a federal habeas corpus proceeding, it should be dismissed. Even had it been cognizable, any such PCRA petition would have been futile, for the reasons stated above.
On the basis of the foregoing, IT IS RECOMMENDED THAT: the Petition for Writ of Habeas Corpus (Doc. No. 1) be DENIED.