ROSADO v. DIGUGLIELMO et al

Filing 32

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE NORMA L. SHAPIRO ON 10/2/13. 10/3/13 ENTERED AND COPIES E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FELIX ROSADO,

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Petitioner,
v.
MICHAEL WENEROWICZ,

Superintendent, DISTRICT ATTORNEY,
County of Berks, ATTORNEY
GENERAL, State of Pennsylvania,
Respondents.
Norma L. Shapiro, J.

CIVIL ACTION

No. 07-4429

October 2, 2013
MEMORANDUM

Petitioner Felix Rosado (“Rosado”) filed a counseled petition for a writ of habeas corpus
pursuant to 22 U.S.C. § 2254. Rosado, currently incarcerated, is serving a life sentence. United
States Magistrate Judge Henry S. Perkin filed a Report and Recommendation (“R&R”) (paper
no. 24). Rosado filed timely objections (paper no. 29). For the following reasons, the R&R will
be adopted in part. Rosado’s objections to the R&R will be sustained in part. Rosado’s petition
for a writ of habeas corpus will be denied.
I. BACKGROUND
A. Factual and Procedural History1
On December 10, 1995, Hiep Q. Nguyen was shot in the head and killed while sitting in
the driver’s seat of his car in Reading, Pennsylvania. Petitioner was arrested and charged with
first-degree murder, third degree murder, aggravated assault, reckless endangerment, violation of

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A complete history is set forth in Part I of Magistrate Judge Perkin’s Report and Recommendation.

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section 6106 of the Uniform Firearms Act, possessing an instrument of crime, and altering or
obliterating marks of identification. A jury trial before the Honorable Scott D. Keller of the
Court of Common Pleas of Berks County commenced on July 3, 1996. On the third day of
testimony, July 11, 1996, Rosado entered a guilty plea for first degree murder and was sentenced
to life imprisonment without possibility of parole the same day. Rosado contends that, at the
time of his guilty plea, he was unaware he could have asserted a voluntary intoxication defense,
if successful, that would have reduced the charge from first degree to third degree murder.
On April 5, 1997, Rosado filed a pro se motion to withdraw his guilty plea, alleging that
his trial counsel pressured him to plead guilty to first degree murder and that counsel should have
fought for a lesser charge. The trial court denied the motion on April 17, 1997.
On or about September 7, 1997, Rosado mailed a motion to allow an appeal nunc pro
tunc from the trial court’s order denying his motion to withdraw his guilty plea. This motion was
docketed on November 8, 1997, when Rosado’s family delivered a copy to the Berks Country
Clerk of Courts. The trial court treated Rosado’s motion as a request for relief under the
Pennsylvania Post-Conviction Relief Act (“PCRA”). See 42 Pa. C.S. § 9541 et seq.
On October 14, 1997, Rosado filed a PCRA motion through counsel. In that motion,
Rosado moved to amend the September 7, 1997, motion to allow an appeal nunc pro tunc and
requesting reinstatement of Rosado’s direct appeal rights. Following a PCRA hearing on
November 30, 1999, the PCRA court denied Rosado’s petition as untimely in an order dated the
same day. Rosado filed a notice of appeal in the Pennsylvania Superior Court on December 27,
1999. On October 17, 2000, the Superior Court affirmed the denial of the PCRA petition. The
Pennsylvania Supreme Court denied an allowance of appeal on May 7, 2001.
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On December 21, 2006, Rosado filed another PCRA petition through counsel, in which
he alleged ineffective assistance of counsel for failure to investigate voluntary intoxication as a
potential defense and an unlawfully induced guilty plea. Rosado requested that the court vacate
his sentence, permit him to withdraw his July 11, 1996, guilty plea, and grant him a new trial.
After a hearing that took place on November 30, 2007, the PCRA court held that Rosado’s
petition was timely and that he had not waived the issue of ineffective assistance of counsel.
However, in its discussion and order dated June 10, 2008, the PCRA court concluded that
Rosado’s trial counsel was not ineffective for failure to pursue a voluntary intoxication defense.
On July 8, 2008, Rosado filed a timely notice of appeal with the Pennsylvania Superior Court.
On July 11, 2008, the Commonwealth filed a cross-notice of appeal. On July 23, 2008, the
Commonwealth filed a Concise Statement of the Errors Complained of on Appeal in which it
argued that the lower court erred in finding Rosado’s petition timely and in holding that Rosado
had not waived his ineffective assistance of counsel claim. On August 1, 2008, Rosado filed a
Concise Statement arguing generally that the court erred when it held that Rosado’s trial counsel
was not ineffective.
The PCRA court issued an opinion expanding on its June 10, 2008, order on October 14,
2008. The PCRA court found that Rosado’s 2006 petition was timely because it was filed within
sixty days of discovering new evidence that could not have been ascertained at the time of trial.
The PCRA court also found that the discovery of the testimony of Yamiel Tejeda, an
acquaintance of petitioner, supported Rosado’s assertion that he had been intoxicated the night of
Mr. Nguyen’s murder and that the testimony could not have been discovered at the time of trial
even with due diligence.
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The Pennsylvania Superior Court affirmed the decision of the PCRA court on September
21, 2009, and the Pennsylvania Supreme Court denied petitioner’s motion for an allowance of
appeal on March 10, 2010.
Rosado had filed a petition for writ of habeas corpus in this court on October 22, 2007,
along with a motion to stay. This court granted the motion to stay on October 31, 2007, in order
to allow Rosado to exhaust his claims in state court. On June 3, 2010, following the exhaustion
of claims in state court and on motion by the petitioner to reopen, this court removed this action
from suspense and granted Rosado sixty days to file a brief in support of his petition. Rosado
filed a brief on August 3, 2010. On August 25, 2010, this court referred the petition to
Magistrate Judge Perkin for an R&R. Rosado filed timely objections to the R&R.
B. Report and Recommendation and Objections
Magistrate Judge Perkin concluded the following in his R&R: (1) Rosado’s December 21,
2006 PCRA petition was timely; (2) the state court’s holding that Rosado’s counsel was not
ineffective for failure to pursue a voluntary intoxication defense was not objectively
unreasonable; and (3) a certificate of appealability should be denied.
Rosado makes numerous objections to Magistrate Judge Perkin’s R&R, most of which
merely iterate arguments considered and rejected by both the PCRA court and Magistrate Judge
Perkin. Rosado also objects to certain factual inaccuracies contained in Magistrate Judge
Perkin’s R&R, particularly in Judge Perkin’s summary of the relevant record.
II. DISCUSSION
The court must review de novo those portions of the R&R to which Burton specifically
has objected. See 28 U.S.C. § 636(b)(1)(C). To show ineffective assistance of counsel, a
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petitioner must meet a two-part test. First, the petitioner must show that “counsel’s performance
was deficient,” i.e., that “counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466
U.S. 668, 687 (1984). Second, the petitioner must show prejudice, which “requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id.
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) requires deference in
reviewing the determination of state court decisions. See 28 U.S.C. § 2254(d). Under AEDPA:
[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law . . . or 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.
Id. “[A]s long as the reasoning of the state court does not contradict relevant Supreme Court
precedent, AEDPA’s general rule of deference applies.” Priester v. Vaughn, 382 F.3d 394, 398
(3d Cir. 2004) (citations omitted). “That is, the state court’s decision must have been not only
incorrect or erroneous but objectively unreasonable.” Rompilla v. Beard, 545 U.S. 374, 380
(2005) (citations omitted).
A. References to Petition as Untimely
Rosado objects to references contained in the R&R that the PCRA court determined that
Rosado’s petition was not timely and that Rosado seeks review of the PCRA court’s
determination that his petition was untimely. See Objections at 1-2, 5-6; see also R&R at 8, 39.
Rosado is correct that the PCRA court and the Pennsylvania Superior Court found that his
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December 21, 2006, PCRA petition was timely. Cf. R&R at 4-10, 16-18. Rosado’s objections to
those portions of Magistrate Judge Perkin’s R&R suggesting that Rosado’s 2006 PCRA petition
was untimely will be sustained and those references at pages 8 and 39 of the R&R will not be
adopted.
B. PCRA Hearing Date
Rosado objects to an R&R statement that a PCRA hearing took place on June 10, 2008.
See R&R at 4. The hearing took place on November 30, 2007. The PCRA court’s decision and
order denying Rosado’s PCRA petition was issued on June 10, 2008. Rosado’s objection on this
ground will be sustained.
C. Counsel’s Failure to Investigate Voluntary Intoxication Defense
Rosado argues that the PCRA court and Judge Perkin analyzed the wrong claim, because
Rosado claims his counsel was ineffective for failing to investigate a voluntary intoxication
defense, rather than failing to pursue such a defense. See Objection at 2-3.
Magistrate Judge Perkin, like the PCRA court, credited trial counsel’s testimony that he
concluded an innocence defense and an intoxication defense were mutually incompatible. See
R&R at 20-24. Magistrate Judge Perkin also credited counsel’s testimony that Rosado
“adamantly insisted” on an innocence defense. See R&R at 24-28. This determination that trial
counsel’s testimony was credible, even in light of Rosado’s contradictory testimony, is not
unreasonable. As noted in Magistrate Judge Perkin’s Report, “[p]rior to the PCRA hearing,
Petitioner told conflicting accounts to police, he falsely accused his cousin, Mr. Melendez, of the
murder of Mr. Nguyen and he intimated retaliation against the factual witnesses Mr. Melendez
and Damon Williams who cooperated with the prosecution.” R&R at 21. The Pennsylvania
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courts credited counsel’s testimony that: (1) counsel discussed the intoxication defense with
Rosado; and (2) he chose not to pursue it further because of Rosado’s insistence on an innocence
defense.
Magistrate Judge Perkin discussed and analyzed Rosado’s argument that trial counsel’s
failure to investigate a voluntary intoxication defense prior to trial “set in motion a chain
reaction” and caused counsel’s assistance to be ineffective because that failure was so “early on”
in preparing Rosado’s defense. See R&R at 28-29. Magistrate Judge Perkin agreed with the
state court and concluded that whether it was failure to pursue or failure to investigate, Rosado
has not shown that counsel erred, much less that such error was “so serious as to deprive [him] of
a fair trial.” R&R at 35 (quoting Strickland, 466 U.S. at 687). This conclusion was not
unreasonable. This objection will be overruled.
D. Omission of Important Facts
Rosado objects to Magistrate Judge Perkin’s summary of facts for failing to include
details perceived by Rosado as “important” and worthy of analysis. See Objections at 3-4.
Rosado does not explain which specific facts should have been considered or how failure to
consider any specific fact was error. This objection will be overruled.
E. Standard of Review
Rosado objects to Magistrate Judge Perkin’s articulation of the standard of review.
Rosado does not allege that Magistrate Judge Perkin stated the wrong standard, but only that
Judge Perkin’s summary implies a stronger standard than supported by Strickland v. Washington,
466 U.S. 668 (1984). See Objections at 4-5. Magistrate Judge Perkin correctly articulated the
“doubly deferential” standard required under Strickland and AEDPA, which demand first that the
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state court give deference to counsel’s conduct — which is presumed to be effective — and
second that the federal court defer to the state court decision on the merits unless the petitioner
shows that the state court’s application of federal law was unreasonable. See R&R at 13-15; see
also Strickland, 466 U.S. at 689 (“the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy”) (quotation marks
and citations omitted); Premo v. Moore, 131 S. Ct. 733, 740 (2011) (counsel’s “representation
was adequate under Strickland, or at least that it would have been reasonable for the state court to
reach that conclusion”). This objection will be overruled.
F. Other Objections to Discussion Portion of Report and Recommendation
Rosado objects at length to Magistrate Judge Perkin’s conclusion that Rosado failed to
show ineffective assistance of counsel. See generally Objections at 7-22. For the most part,
Rosado merely rehashes arguments from elsewhere in his objections or as originally asserted in
his petition without offering any new reason why the court should accept those arguments. None
of Rosado’s arguments that counsel was ineffective is persuasive.
Rosado points to a number of Supreme Court opinions in arguing that the determination
by the Pennsylvania courts that trial counsel discussed the voluntary intoxication defense with
Rosado was unreasonable and does not merit deference. See Objections at 7-9. Rosado initially
objects that Magistrate Judge Perkin did not consider Miller-El v. Cockrell, 537 U.S. 322 (2003),
and Wiggins v. Smith, 539 U.S. 510 (2003), before rejecting Rosado’s claims.
Miller-El is inapposite. In Miller-El, the United States Supreme Court analyzed the
requirements for issuing a Certificate of Appealability under 28 U.S.C. § 2253(c). 537 U.S. at
336-37. The holding in Miller-El has no bearing on the deference to state court decisions
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required under 28 U.S.C. § 2254(d) and Rosado offers no reason why it should.
In Wiggins, the Court found that trial counsel’s failure to investigate adequately a capital
defendant’s background and to prepare a mitigation case for the sentencing phase was
unreasonable since counsel was aware of potential mitigating factors in the defendant’s
background and had available funds to investigate the defendant’s social history. 539 U.S. at
534. Failure to prepare for a mitigation case in a capital trial is distinguishable from the alleged
ineffectiveness here. The determination of ineffectiveness “includes a context-dependent
consideration of the challenged conduct as seen from counsel’s perspective at the time.” Id. at
523. Under prevailing norms and in the context of this action, it was not unreasonable for
defense counsel to decline to pursue an intoxication defense based on Rosado’s insistence that he
was innocent and wanted an acquittal.
Rosado’s reliance on Rompilla v. Beard, 545 U.S. 374 (2005), elsewhere in his
objections, see Objections at 14-17, is also unpersuasive. Rosado offers no reason for the court
to conclude that defense counsel’s failure to investigate the voluntary intoxication defense here is
comparable to a failure to investigate and develop mitigation evidence in a capital trial. See, e.g.,
Rompilla, 545 U.S. at 377.
Finally, Rosado suggests that Hill v. Lockhart, 474 U.S. 52 (1985), requires a different
result. See Objections at 20-22. Rosado argues that he has shown “a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Objections at 20 (quoting Hill, 474 U.S. at 59). Hill articulates the applicable standard for
the second Strickland prong, prejudice. 474 U.S. at 59 (“The second, or ‘prejudice,’ requirement,
on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected
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the outcome of the plea process.”). Both the PCRA court and Magistrate Judge Perkin concluded
that Rosado failed to satisfy the first prong — that counsel committed error — so there was no
need to reach a determination as to prejudice.
G. Objection to Certificate of Appealability
Rosado objects to Magistrate Judge Perkin’s inaccurate statement that the petition for writ
of habeas corpus should be denied on procedural grounds because it was untimely. The PCRA
court found the petition timely and Judge Perkin agreed with that conclusion elsewhere in his
R&R. The court will sustain this objection, but a certificate of appealability (“COA”) should be
nonetheless denied.
Whether a COA should be granted is governed by 28 U.S.C. § 2253(c). In order for a
district court to grant a COA, the petitioner must “ma[ke] a substantial showing of the denial of a
constitutional right.” Miller-El, 537 U.S. at 336. The petitioner must also show “that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to proceed
further.” Id. at 327. Rosado has not made a substantial showing that he has been denied a
constitutional right, nor has he shown that reasonable jurists could disagree with the resolution of
his constitutional claims. There is no basis on which to issue a COA.
III. CONCLUSION
Magistrate Judge Perkin’s R&R will be ADOPTED in part. Rosado’s objections will be
SUSTAINED in part and OVERRULED in part. Rosado’s petition for a writ of habeas
corpus will be DENIED. An appropriate order follows.

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