HERNANDEZ v. WIEMER et al

Filing 36

NOTICE/ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED; THE REPORT AND RECOMMENDATION IS ADOPTED IN PART; THE PETITION IS DISMISSED AND A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; THE CLERK OF COURT SHALL CLOSE THIS CASE.SIGNED BY HONORABLE PAUL S. DIAMOND ON 11/27/17. 11/27/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANGEL HERNANDEZ,
Petitioner,
v.
SUPERINTENDENT TREVOR
WIEMER, et al.,
Respondents.

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Civ. No. 14-6499

NOTICE
On November 10, 2014, Angel Hernandez filed this pro se § 2254 Petition (Doc. No. 1),
challenging his state murder conviction and sentence. On November 17, 2014, I referred this
matter to Magistrate Judge Carole Sandra Moore Wells. (Doc. No. 2.) On November 28, 2014,
Petitioner filed an Amended Petition (Doc. No. 4), alleging eight grounds for relief. On May 26,
2017, Judge Wells issued her Report and Recommendation (Doc. No 31), urging me to dismiss
the Amended Petition.
On June 13, Petitioner filed objections, arguing that Judge Wells did not address certain
arguments relating to: (1) Ground Five (trial counsel was ineffective for failing to raise a Fourth
Amendment claim); and (2) Ground Six (Petitioner should be resentenced under Miller v.
Alabama, 567 U.S. 460 (2012)). (Pet.’s Objs. ¶¶ 7–8, 11, Doc. No. 32.) I will overrule
Petitioner’s objections, adopt the Report and Recommendation in part, and dismiss the Petition.
I.

PROCEDURAL HISTORY
On February 17, 2005, Petitioner was convicted of murder in the Philadelphia Common

Pleas Court. On December 22, 2010, the PCRA court dismissed Hernandez’s second postconviction petition. (Doc. No. 22.) On May 24, 2011, Hernandez filed a third PCRA petition,
seeking reinstatement of his right to appeal the denial of his second PCRA petition because

PCRA counsel failed to inform him that the first petition had been denied. (Doc. No. 30-2.) On
August 9, 2012, Petitioner supplemented his third PCRA petition, adding a claim that he was
entitled to be resentenced pursuant to Miller and the Equal Protection Clause.
On June 9, 2015, the PCRA court reinstated Petitioner’s appellate rights nunc pro tunc.
(Doc. No. 30-3.) Unfortunately, Petitioner never filed the appeal. The PCRA court did not
address Petitioner’s Miller claim. On July 15, 2015, Judge Wells granted Respondents’ Motion
to stay the federal habeas proceedings to allow Petitioner to exhaust his state remedies. (Doc.
Nos. 16, 20.) On August 31, 2015, Petitioner sent the PCRA court a Letter titled “The Petitioner
Waiver [sic] His Reconsideration of the PCRA Petition § 9545, § 9541,” effectively withdrawing
his PCRA petition so that he could pursue his pending § 2254 Petition. (Doc. No. 30-4.) On
September 21, 2016, Judge Wells lifted the stay and, on May 26, 2017, issued her Report and
Recommendation. (Doc. Nos. 29, 31.)
II.

STANDARD OF REVIEW
I must review de novo those portions of the Report to which timely, specific objections

have been filed. 28 U.S.C. § 636(b)(1). I may “accept, reject, or modify, in whole or in part”
Judge Wells’ findings or recommendations. Id.; Brophy v. Halter, 153 F. Supp. 2d 667, 669
(E.D. Pa. 2001). As to those portions to which no objections have been made, I must “satisfy
[myself] that there is no clear error on the face of the record in order to accept the
recommendation.” Fed. R. Civ. P. 72(b) Advisory Committee Notes; see also Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining the district court’s responsibility “to
afford some level of review” when no objections have been made).
III.

REPORT AND RECOMMENDATION
Judge Wells determined that Grounds Five and Six were procedurally defaulted. Before

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seeking federal habeas relief, state prisoners must exhaust their state remedies. 28 U.S.C. §
2254(b). Moreover, federal habeas courts usually will not review claims that were not presented
to the state court in the manner prescribed by its procedural rules. Wainwright v. Sykes, 433
U.S. 72, 81–82 (1977). “[I]f it is clear that the habeas petitioner's claims [would] now [be]
procedurally barred under state law,” the claims are exhausted but procedurally defaulted. Gray
v. Netherland, 518 U.S. 152, 161–62 (1996). Accordingly, before federal courts will review a
habeas claim, petitioners usually must “give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State's established appellate review
process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Although Petitioner alleged in his Letter to the PCRA court that he “exhausted his issues
and state remedies on all claims,” he never presented his Miller claim to any Pennsylvania
appellate court. (Pet.’s Letter 1, Doc. No. 30-4.) Rather, Petitioner voluntarily abandoned his
Miller claim when he “waived” his request for PCRA relief. (Id.; see also, e.g., Doc. Nos. 24,
27.) Moreover, under Pennsylvania law, Petitioner is no longer able to present his Miller claim
to the state courts. See 42 Pa. C.S. § 9545(b). Accordingly, Judge Wells found that because
Petitioner’s Miller claim would be forfeited in state court, Ground Six is procedurally defaulted
here. (Rep. & Rec. 9, Doc. No. 31.)
Similarly, Petitioner chose not to appeal the denial of his second PCRA petition—
including Ground Five. Under Pennsylvania law, Petitioner’s time to appeal has expired. See
Pa. R.A.P. 903(a). Judge Wells thus ruled that because Petitioner’s ineffectiveness claim would
also be forfeited in state court, Ground Five is procedurally defaulted here. (Rep. & Rec. 8, Doc.
No. 31.)

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IV.

OBJECTIONS
I have liberally construed Petitioner’s objections that Judge Wells failed to address: (1)

his argument that exhaustion of Grounds Five and Six should be excused; (2) his Equal
Protection claim; and (3) whether his procedural default on Grounds Five and Six should be
excused. (Pet.’s Objs. ¶¶ 5–8, Doc. No. 32.) I will overrule the objections as meritless and
moot.
A. Futility
Petitioner argues that Judge Wells should have excused the exhaustion requirement as
futile, in light of the PCRA court’s three-year delay in addressing his third PCRA petition.
Excusing the exhaustion requirement itself would preclude the default of Grounds Five and Six.
See Cristin v. Brennan, 281 F.3d 404, 410–11 (3d Cir. 2002); cf. Gray, 518 U.S. at 161–62.
Hernandez implicitly raised this argument in his original Petition and other filings throughout
these proceedings.

(See Pet. 14–15, Doc. No. 1; Pet.’s Status Report 1, Doc. No. 18

(“[P]etiton[er] filed a[n] Objection to [the PCRA] Judge’s Notice to Dismiss, requesting a full
opining on why after 4 years this PCRA petition was pending.”); see also Pet.’s Resp. to PCRA
Court Order 3, Doc. No. 28-2 (citing Rinaldi v. Di Gillis, 2003 WL 23200233, at *3 (E.D. Pa.
Dec. 23, 2003), rejected in part, 2005 WL 701710 (E.D. Pa. Mar. 28, 2005)); Pet.’s Waiver of
PCRA 1, Doc. No. 30-4 (“[P]etitioner claim[s] that he exhausted his issues and state remedies on
all claims.”).) Respondents addressed it in their Motion to Stay. (Gov’t’s Resp. to Pet. & Mot.
to Stay 7, Doc. No. 16.)
I will not excuse the exhaustion requirement as to Ground Five. “[I]nexcusable or
inordinate delay by the state in processing claims for relief may render [a] state remedy
effectively unavailable.” Wojtezak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986). As I

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previously explained, after the PCRA court reinstated Petitioner’s right to appeal the denial of
Ground Five, he nonetheless chose not to file that appeal.

Because relief was thus not

“effectively unavailable” in state court, Judge Wells correctly determined that Ground Five was
defaulted because it was not timely appealed.
When Hernandez withdrew his third PCRA petition, his Miller claim had been pending in
state court for approximately thirty-six months. Compare Cristin, 281 F.3d at 411 (“The thirtythree month delay in Wojtczak remains the shortest delay held to render state collateral
proceedings ineffective for purposes of the exhaustion requirement.”). Nonetheless, I need not
decide whether exhaustion of Ground Six should be excused:

assuming, arguendo, that

Petitioner did not have to exhaust (and so did not default) Ground Six, Judge Wells correctly
determined in the alternative that Ground Six is meritless. (Rep. & Rec. 9 n.5, Doc. No. 31); see
also 28 U.S.C. § 2254(b)(2) (allowing court to deny unexhausted claims on the merits).
In Miller, the Supreme Court held “that the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile offenders.” Miller
v. Alabama, 567 U.S. 460, 479 (2012). Contrary to Petitioner’s arguments, that holding is
limited to juvenile offenders. (Pet.’s Objs. ¶¶ 8–15, Doc. No. 32); Tarselli v. Folino, 2016 WL
4154941, at *4 (M.D. Pa. June 7, 2016) (collecting cases); Leafey v. Kerestes, 2014 WL
5823067, at *3–4 (E.D. Pa. Nov. 7, 2014). Because Petitioner was twenty years old when he
committed the murder, Judge Wells correctly determined that his sentence does not violate the
Eighth Amendment. Accordingly, I will adopt her alternative determination and deny Ground
Six on the merits.
B. Equal Protection
Petitioner also objects that Judge Wells did not address his claim that Miller should be

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extended to non-juveniles under the Equal Protection Clause. (Pet.’s Objs. ¶¶ 11, Doc. No. 32.)
Although Petitioner abandoned this claim along with his Miller claim in the PCRA court, I again
assume without deciding that Petitioner was not required to exhaust it.
Judge Wells did not address this claim because Petitioner did not raise this it in any of his
§ 2254 filings. See Local R. Civ. P. 72.1.IV(C). In any event, the claim is meritless.
“The Equal Protection Clause directs that all persons similarly circumstanced shall be
treated alike.” Plyler v. Doe, 457 U.S. 202, 216 (1982) (quotation mark omitted). In his
objections, Petitioner does not show that he is similarly situated to the defendant in Miller in a
critical aspect: his capacity for reform. Eliam v. Fisher, 2014 WL 176793, at *3 (E.D. Pa. Feb.
25, 2014) (holding, in the context of 28 U.S.C. § 2244(d), that Equal Protection Clause does not
extend Miller to non-juveniles); see also Turner v. Coleman, 2016 WL 3999837, at *8–9 (W.D.
Pa. July 26, 2016) (“While Petitioner contends that as a person with mental retardation, his
intellect is more akin to that of a juvenile, Petitioner fails to show that he is similarly situated to
juveniles in the critical aspect that mentally retarded individuals share as a class with the class of
juvenile convicts, i.e., ‘greater prospects for reform.’”). In sum, I will overrule Petitioner’s
objection because he did not raise this issue before Judge Wells, and alternatively deny his claim
on the merits.
C. Procedural Bar
Petitioner objects that Judge Wells did not thoroughly discuss whether his procedural
default should be excused. I do not agree.
He first argues that Judge Wells should have reached the merits of Ground Five because
PCRA counsel failed to appeal his ineffectiveness claim. (Pet.’s Objs. ¶ 8, Doc. No. 32.) A
federal habeas court may excuse a procedural default if the petitioner shows: (1) cause for the

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default and prejudice, or (2) a miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750
(1991). “Inadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Martinez v.
Ryan, 566 U.S. 1, 9 (2012).
Again, the PCRA court reinstated Petitioner’s right to appeal the denial of his
ineffectiveness claim; Petitioner chose not to appeal. His claim is thus defaulted. Because
PCRA counsel raised this ineffectiveness claim in Hernandez’s second PCRA petition, he was
not ineffective at the initial-review stage.
To the extent that Petitioner argues that PCRA counsel was obligated to file that appeal,
Hernandez still cannot show cause or prejudice. PCRA counsel’s failure to appeal is generally
not cause to excuse a default. See Coleman v. Thompson, 501 U.S. 722, 752–53 (1991); see also
Martinez, 566 U.S. at 9–12 (distinguishing the importance of trial-level and appellate-level
habeas counsel in part because “a prisoner asserting an ineffective-assistance-of-trial-counsel
claim in an initial-review collateral proceeding cannot rely on a court opinion or the prior work
of an attorney addressing that claim”). In any event, Judge Wells correctly deemed Petitioner’s
underlying ineffectiveness claim meritless because trial counsel raised his Fourth Amendment
claim (on which Ground Five is based) in a pretrial motion to suppress. (Rep. & Rec. 8 n.4, Doc.
No. 31.)
Petitioner also argues that declining to reach the merits of Ground Five would cause a
miscarriage of justice because “cumulative errors clearly deprived him of a fair trial.” (Pet.’s
Objs. ¶ 8, Doc. No. 32.) Once again, I do not agree.
The miscarriage of justice standard is a flexible yet extraordinary exception arising from
the policies of federalism, comity, and finality that underlie the procedural default rule. See

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Schlup v. Delo, 513 U.S. 298, 319–22 (1995). See generally Wainwright v. Sykes, 433 U.S. 72
(1977); Fay v. Noia, 372 U.S. 391, 416–26 (1963). The exception generally applies “only to the
case where the miscarriage is tied to the petitioner's actual innocence.” Johnson v. Pinchak, 392
F.3d 551, 564 (3d Cir. 2004).
Petitioner has not raised a claim of cumulative error in state or federal court. Cf. Collins
v. Sec’y of Pa. Dep’t of Corr., 742 F.3d 528, 542 (3d Cir. 2014) (“[A] claim of cumulative error
must be presented to the state courts before it may provide a basis for habeas relief.”). Further,
Petitioner does not and cannot show that any combination of his claims, even if meritorious,
even suggests his actual innocence. Accordingly, Petitioner has not shown a miscarriage of
justice as to Grounds Five or Six.
In these circumstances, I will overrule Petitioner’s objection to Judge Wells’
determination that Ground Five is procedurally defaulted. Moreover, because I have already
rejected Hernandez’s Miller claim on the merits, I will also overrule Petitioner’s objection as to
Ground Six as moot.
V.

CONCLUSION
For these reasons, I will overrule Petitioner’s objections, adopt Judge Wells’

Recommendation, and dismiss the Amended Petition without an evidentiary hearing.

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ORDER
AND NOW, this 22nd day of November, 2017, upon consideration of Petitioner’s
Petition for Writ of Habeas Corpus (Doc. No. 1) and Amended Petition for Writ of Habeas
Corpus (Doc. No. 4), Respondent’s Response to Petition for Writ of Habeas Corpus (Doc. No.
30), Magistrate Judge Carole Sandra Moore Wells’ Report and Recommendations (Doc. No. 31),
and Petitioner’s Objections to the Magistrate Report and Recommendation (Doc. No. 32), and
after an independent review of the record, it is hereby ORDERED that:
1. Petitioner’s Objections (Doc. No. 32) are OVERRULED;
2. Judge Wells’ Report and Recommendation (Doc. No. 31) is ADOPTED in part;
3. Petitioner’s § 2254 Petition (Doc. No. 4) is DISMISSED; and
4. A Certificate of Appealability is shall NOT ISSUE.
It is FURTHER ORDERED that the CLERK OF COURT shall CLOSE this case.
AND IT IS SO ORDERED.
/s/ Paul S. Diamond
_________________________
Paul S. Diamond, J.

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