VU v. WETZEL et al

Filing 67

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 5/10/165. 5/11/16 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(gs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NGUYEN VU
v.
JOHN E. WETZEL, et al.

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CIVIL ACTION

No. 14-5691

MEMORANDUM ORDER
DITTER, J.

May 10, 2016

Upon consideration of the petition for a writ of habeas corpus, the
Commonwealth’s Response, the Report and Recommendation of United States Magistrate
Judge Carol Sandra Moore Wells, and Petitioner’s objections, I make the following
findings and reach the following conclusions:
1.

Petitioner Nguyen Vu filed a petition for writ of habeas corpus on October
6, 2014, attacking his 2008 conviction for aggravated assault, criminal
mischief and possession of an instrument of crime. On September 30,
2015, Judge Wells issued a Report and Recommendation concluding that
Vu’s petition should be dismissed and denied because his claims were
either procedurally defaulted or meritless. Vu has filed objections arguing
that he is entitled to a review on the merits of claims one, two, four, five,
six and seven because (1) ineffective assistance of counsel establishes cause
for his procedural default; and (2) there is new, reliable evidence of actual
innocence. He also contends that Judge Wells erroneously determined that
claims three and eight were without merit.

2.

Vu argues that Judge Wells erred in concluding that he had not established
“cause” in order to excuse his procedural default for claims one, two, four,
five, six, and seven in state court. In support thereof, he contends that
counsel on both direct and collateral appeal were ineffective for failing to
preserve his claims for federal habeas review, thus establishing “cause” for
his failure to properly present his claims to the state court. If Vu’s state
procedural default were to be excused, it would open the door for review of
his claims on the merits by a federal habeas court.

3.

A federal court, absent unusual circumstances, should not entertain a
petition for writ of habeas corpus unless the petitioner has first satisfied the
exhaustion requirement of 28 U.S.C. § 2254. A petitioner typically
exhausts his federal claims by fairly presenting each claim at each stage of
the state’s established review process. Villot v. Varner, 373 F.3d 327, 337
(3d Cir. 2004). Vu did not present claims one, two, four, five, six or seven
for complete review by the Pennsylvania courts. In legal terms, Vu is
considered to have procedurally defaulted his claims because state
procedural rules bar him from seeking further relief in state courts. Keller
v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001). The principal exception to
this general rule precluding federal review of habeas claims that have been
procedurally defaulted is for petitioners who can show “cause and
prejudice” for the procedural default or that a “miscarriage of justice” will
occur absent review. Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir.
2004). The Supreme Court has delineated what constitutes “cause” for the
procedural default: the petitioner must “show that some objective factor
external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (citing
Murray v. Carrier, 477 U.S. 478, 488 (1986)). With regard to the prejudice
requirement, the habeas petitioner must prove “‘not merely that the errors at
. . . trial created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.’” Id. at 193 (citing Carrier, 477 U.S. at 494).
This standard essentially requires the petitioner to show he was denied
“fundamental fairness” at trial. Id.

4.

To the extent that Vu argues that his default is due to counsel’s failure to
properly present his claims on direct appeal, such a claim must fail. A
claim of ineffective assistance of counsel constitutes “cause” for procedural
default only if the claim was presented to the state courts independently
prior to its use to establish cause. Edwards v. Carpenter, 529 U.S. 446,
451-453 (2000). In the instant case, the state court never entertained the
claims that counsel was ineffective for failing to present claims one, two,
four, five, six and seven on direct appeal.1 Consequently, ineffective

1

The only claim of ineffective assistance of counsel which was properly exhausted in the
state court is Vu’s claim that trial counsel was ineffective with regard to the entry of his jury
waiver. Judge Wells addressed a variant of this claim on the merits in claim three where she
found that the state court’s conclusion that Vu’s waiver of his right to a jury trial was made
2

assistance of counsel on direct appeal cannot constitute “cause” for his
default.
5.

Vu also argues that ineffective assistance of counsel on collateral review, or
in his case, upon PCRA review, can be a basis upon which to establish
cause in order to excuse his procedural default. See Pet’r Obj. at 19;
Martinez v. Ryan, 566 U.S. - , 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). As
Judge Wells pointed out, however, Vu’s reliance on Martinez is misplaced.
In general, the Constitution does not dictate a standard of attorney
effectiveness in a post-conviction, collateral attack. Pennsylvania v. Finley,
481 U.S. 551, 555 (1987). While the Supreme Court held that certain
deficiencies in representation on collateral appeal may provide the
opportunity for habeas review in the context of procedural default, this case
does not set forth the criteria to establish cause on these grounds. In
Martinez, the Supreme Court held that “[w]here, under state law, claims of
ineffective assistance of trial counsel must be raised in an initial-review
collateral proceeding, [i.e., a collateral proceeding that provides the first
occasion for a defendant to raise a claim that trial counsel was ineffective,]
a procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding
was ineffective.” Id. at 1320. Vu has not presented any claims of
ineffective assistance of counsel, thus he cannot claim that ineffective
assistance of PCRA counsel is cause for his procedural default.2

6.

In the alternative, if the petitioner fails to demonstrate cause and prejudice
for the default, the federal court may also consider a defaulted claim if the
petitioner can demonstrate that failure to consider the claim will result in a
fundamental miscarriage of justice. Coleman, 501 U.S. at 748. In order to
satisfy the fundamental miscarriage of justice exception, the Supreme Court
requires that the petitioner show that a “constitutional violation has
probably resulted in the conviction of one who is actually innocent.”
Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Murray v. Carrier, 477
U.S. 478, 496 (1986)). To satisfy the “actual innocence” standard, a

knowingly, intelligently and voluntarily was reasonable.
2

Claims one, four, six and seven allege due process violations; claim two is based on
violations of Brady v. Maryland, 373 U.S. 83 (1963); and claim five sets forth an allegation that
Vu’s Confrontation Clause rights were violated.
3

petitioner must show that, in light of new evidence, it is more likely than
not that no reasonable juror would have found him guilty beyond a
reasonable doubt. Schlup, 513 U.S. at 327.
7.

Vu has also failed to establish a miscarriage of justice because he has not
set forth new evidence establishing his actual innocence. Petitioner’s
allegations of “new” evidence of actual innocence include trial exhibits and
certain information allegedly requested by defense counsel prior to trial and
never provided to Vu.3 See Pet’r Obj. at 3-4, 7, 21-22. This evidence is not
new. It was known prior to and at the time of Vu’s 2008 trial.
Consequently, it cannot constitute “new” evidence of actual innocence.

8.

As in his other objections, Vu’s argument regarding the denial of claims
three and eight on their merits simply rehashes the arguments he presented
to, and which were rejected by, Judge Wells. The Report and
Recommendation provides a well reasoned analysis of the facts and law.
Consequently, I find no reason to re-litigate these issues.

Therefore, I HEREBY ORDER that:
1.

Petitioner’s objections to the Report and Recommendation are overruled.

2.

The Report and Recommendation is APPROVED and ADOPTED.

3.

The petition for a writ of habeas corpus is DENIED WITH PREJUDICE.

4.

There is no probable cause to issue a certificate of appealability.

5.

The Clerk of Court shall mark this case closed for statistical purposes.

/s J. William Ditter, Jr.
J. WILLIAM DITTER, JR., J.

3

This information includes an itemized repair estimate of the victim’s car; information
regarding the victim’s handgun and gun permit; and photographs of the victim’s car.
4