GRIBBLE v. FOLINO et al
MEMO/ORDER SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 8/29/17. 8/30/17 ENTERED AND COPIES MAILED TO UNREP PET., E-MAILED.(er, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LOUIS FOLINO, et al,
Petitioner, an inmate serving a life sentence for first degree murder, filed a
petition for a writ of habeas corpus in which he raised, inter alia, eleven claims of
ineffective assistance of trial counsel. (ECF 1). The District Judge to whom the petition
was assigned referred the petition to a United States Magistrate Judge for the purpose of
issuing a Report and Recommendation. ( ECF 3). The Magistrate Judge issued a Report
and Recommendation that the petition be denied, finding, inter alia, that ten of the eleven
of the ineffective assistance of counsel claims were procedurally defaulted. (ECF 45).
After the petitioner filed Objections (ECF 48), the District Judge overruled the
Objections, approved and adopted the Report and Recommendation, dismissed the
petition for a writ of habeas corpus and denied a certificate of appealability. (ECF 49).
Petitioner’s request for a certificate of appealabilty from the Court of Appeals for the
Third Circuit (ECF 50) was denied. (ECF 54).
After petitioner’s habeas petition was dismissed, the United States Supreme Court
recognized a narrow exception to its previous holding in Coleman v. Thompson, 501 U.S.
722, 729-32 (1991) that attorney errors in a post conviction proceeding do not establish
cause to excuse a procedural default. Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012).
The Supreme Court held that in states like Pennsylvania where state law requires
ineffective assistance of trial counsel claims to be raised in an initial review collateral
proceeding, a petitioner may establish “cause” sufficient to overcome a procedural
default if “appointed counsel in the initial-review collateral proceeding, where the claim
should have been raised, was ineffective under the standards of Strickland v. Washington,
466 U.S. 668 . . . (1984).” Martinez, 132 S.Ct. at 1318. The Court continued that “[t]o
overcome the default, a prisoner must also demonstrate that the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.” Id. The Court in Martinez specifically
distinguished between finding cause based on ineffective assistance of counsel during
the initial-review proceedings and at appellate collateral proceedings. Id. at 1316.
The petitioner subsequently filed a motion for relief from judgment pursuant to
Rule 60(b)(5) & (6), asking the Court to consider whether Martinez permits review of his
procedurally defaulted ineffective assistance of counsel claims. (ECF 58). The District
Judge referred the motion to the same Magistrate Judge for the purpose of issuing a
Report and Recommendation. (ECF 59).
Our Court of Appeals subsequently held that Martinez can serve as a proper basis
for relief under Rule 60(b)(6) Cox v. Horn, 757 F. 3d 113, 121, 124-25 (3d Cir. 2014).
This case was then reassigned to the docket of the undersigned. (ECF 93). The
Magistrate Judge issued a Report and Recommendation that petitioner’s motion under
Rule 60(b) for relief from an order dismissing and denying his petition for a writ of
habeas corpus be denied without the issuance of a certificate of appealability. (ECF 96).
Petitioner has now filed Objections to the Magistrate Judge’s Report and
Recommendation. (ECF 100).
After conducting a careful de novo review of the petitioner’s Objections, the
Court overrules all of the Objections, with one exception.
The Magistrate Judge concluded Martinez did not apply to Claims Eight, Nine
and Eleven of the habeas petition because petitioner had failed to raise these three claims
on appeal under the Pennsylvania Post Conviction Relief Act (“PCRA”) and, therefore,
these claims were procedurally defaulted. (ECF 96, pp. 13-14). The Magistrate Judge
further found that petitioner could not overcome his procedural default of the remaining
eight ineffective assistance of counsel claims in his habeas petition because petitioner had
failed to show that any of them were “substantial” under Martinez. (Id., pp. 14-26).
In his Objections, Petitioner argues that Claim Eleven of his habeas petition was
never actually presented at the initial-review collateral proceeding and therefore should
not have been considered procedurally defaulted for failing to raise the claim on PCRA
appeal under the PCRA. Rather, petitioner argues that the Magistrate Judge should have
performed a Martinez analysis on Claim Eleven. The Court agrees.
In Claim Eleven of his habeas petition, petitioner alleged that trial counsel was
ineffective for “failing to present any viable defense due to the cumulative effect of errors
within this petition.” (ECF 1, pp. 33-35). While petitioner did include a claim entitled
“Trial Counsel was Ineffective for Failing to Present any Viable Defense” in his pro se
petition under the PCRA, appointed counsel did not include such a claim in either his
counseled PCRA petition or amended counseled petition. Further, such a claim was never
considered or discussed by Judge James A. Lineberger in his Opinion denying relief in
the initial-review proceeding under the PCRA. (ECF 85-3). Indeed, in her Report and
Recommendation, the Magistrate Judge listed the eight claims that petitioner raised in his
counseled PCRA petitions. (ECF 96, p. 6 citing Am. PCRA Pet. & Supplemental Am.
PCRA Pet., ECF 24 Ex. G). Conspicuously absent from the list is any ineffective
assistance of trial counsel claim for failing to assert a viable defense.
When a petitioner files a pro se PCRA petition, but subsequently obtains counsel
and files an amended petition, the PCRA court will review only the counseled petition.
Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999); see Griggs v. DiGuglielmo,
2007 WL 2007971, at *2 n.2 (E.D. Pa. Jul. 3, 2007) (Yohn, J.) (claim not fairly presented
to state court where raised in a pro se, but not counseled, PCRA petition). Here,
appointed PCRA counsel did not present the failure of trial counsel to present a viable
defense claim to the initial PCRA court in either the counsel petition or amended
counseled petition. Therefore, this claim was never fairly presented to the PCRA court
on initial review. Martinez is therefore applicable to this claim. Accordingly, the Court
will remand this case to the Magistrate Judge to consider whether petitioner’s procedural
default of Claim Eleven of his habeas petition should be excused under Martinez.
Accordingly, it is hereby ORDERED that:
1. Petitioner’s Objections to the Magistrate Judge’s Report and Recommendation
[Doc.100 ] are SUSTAINED in part and OVERRULED in part.
2. Petitioner’s Objections are OVERRULED and the Rule 60(b) motion [Doc.
75] is DENIED with respect to Claims 1-10 of his original habeas petition,
alleging ineffective assistance of counsel. The Report and Recommendation is
APPROVED AND ADOPTED as to these claims.
3. Petitioner’s Objection to the Magistrate Judge’s conclusion that Martinez v.
Ryan does not apply to Claim 11 of the original habeas petition is
SUSTAINED and this matter is REMANDED to the Magistrate Judge to
conduct a Martinez analysis on Claim 11.
4. The motion of the petitioner for relief from judgment under Rule 60B(5) & (6)
[Doc. 58] is DENIED as moot.
5. The amended motion of the petitioner for relief from judgment under Rule 60
(B)(5) & ((6) [Doc. 60] is DENIED as moot.
6. The motion of the petitioner for relief under Rule 60B(6) [Doc. 73] is
DENIED as moot.
BY THE COURT:
August 29, 2017
/s/ Jeffrey L. Schmehl
Jeffrey L. Schmehl, J.
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