APONTE v. COLEMAN et al
Filing
10
ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED AND BECAUSE PETITIONER HAS NOT SHOWN A DENIAL OF A CONSTITUTIONAL RIGHT OR THAT REASONABLE JURISTS WOULD DISAGREE WITH THIS COURT'S FINDINGS THAT HIS CLAIMS ARE PROCEDURALLY DEFAULTED, A CERTIFICATE OF APPEALABILITY IS DENIED. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 2/2/12. 2/2/12 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JAVIER APONTE
:
:
:
:
:
v.
BRIAN COLEMAN, et al.
CIVIL ACTION
NO. 11-6069
ORDER
AND NOW, this 1st day of February, 2012, upon
consideration of the Petition for Writ of Habeas Corpus, the
Answer thereto, the petitioner’s Response, the Report and
Recommendation of United States Magistrate Judge Linda K.
Caracappa (Docket No. 8), and for the additional reasons stated
herein, IT IS HEREBY ORDERED THAT:
1.
The Report and Recommendation is APPROVED and
ADOPTED;
2.
The Petition for Writ of Habeas Corpus is
DISMISSED; and
3.
Because the petitioner has not shown a denial of a
constitutional right or that reasonable jurists
would disagree with this Court’s finding that his
claims are procedurally defaulted, a certificate
of appealability is DENIED.
The Court writes separately to make clear that in
adopting the Report and Recommendation, it considered the
petitioner’s arguments that his claims were not procedurally
defaulted because the rule resulting in waiver of his claims had
not been applied consistently.
His argument appears to be that
the Superior Court should have permitted him, on appeal, to raise
for the first time a claim that his Post Conviction Relief Act
counsel was ineffective in failing to assert his claims that his
counsel at trial was ineffective for failing to request a
mistrial or object to a defective colloquy when waiving his jury
trial rights.
See Pet’r Resp. 5-6.
The Court concludes that the petitioner’s claims are
procedurally defaulted because the Superior Court’s decision not
to address his claims of ineffective assistance of trial counsel
rested on adequate state grounds independent of the federal
question they presented.
Pennsylvania law required the
petitioner to raise these claims in his initial PCRA petition,
but he failed to do so.
Commonwealth v. Washington, 927 A.2d
586, 601 (Pa. 2007) (finding claims not so raised are waived).
The petitioner argues that he should have been able to raise
“layered” claims of ineffective assistance of counsel by arguing,
on appeal, that his PCRA counsel was constitutionally ineffective
in failing to raise his claims that trial counsel was
ineffective.
However, he was required to raise his claims that
his PCRA counsel was ineffective prior to appealing the initial
PCRA decision, because his PCRA counsel had withdrawn prior to
the dismissal of his PCRA petition.
See Commonwealth v.
Colavita, 993 A.2d 874, 893 n.12 (Pa. 2010); Commonwealth v.
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Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009).
Only a “firmly established and regularly followed state
practice” will bar federal review of constitutional claims that a
state court has declined to address on procedural grounds.
v. Kentucky, 466 U.S. 341, 348-51 (1984).
James
The petitioner’s
argument that Pennsylvania courts have not consistently applied
that rule is contradicted by the cases he cites in support of
that contention.
See, e.g., Commonwealth v. Pursell, 724 A.2d
293, 302 (Pa. 1999).
The petitioner argues that the Pursell
court permitted the appellant to raise such a “layered”
ineffective assistance claim, and that the Superior Court should
have permitted him to do so here.
This case is different from
Pursell because there, the appellant’s PCRA counsel represented
him through the completion of PCRA proceedings.
Here, the
petitioner’s PCRA counsel filed a request to withdraw as counsel,
which was granted on March 30, 2010.
See App’x to Answer to Pet.
for Writ of Habeas Corpus at A70-A77.
Pursell itself makes clear
the rule in Pennsylvania that a claim that PCRA counsel’s
ineffectiveness “must be raised at the earliest possible stage in
proceedings at which counsel whose effectiveness is challenged no
longer represents [the] defendant.”
Pursell, 724 A.2d at 302.
In this case, that stage was prior to the petitioner’s PCRA
appeal.
The Court finds that rule to have been consistently
applied and therefore an adequate state procedural ground on
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which the Superior Court rested its refusal to address the
petitioner’s federal claims.
See, e.g., Commonwealth v. Green,
709 A.2d 382, 384 (Pa. 1998); Commonwealth v. Christy, 656 A.2d
877, 881 (Pa. 1995).
Under the circumstances, the petitioner’s
claims are procedurally defaulted for habeas purposes, because
although the Pennsylvania courts did not pass on the merits of
the petitioner’s federal claims, it declined to on the basis of
an adequate state procedural rule.
See Coleman v. Thompson, 501
U.S. 722, 729 (1991); id. at 732 (“In the absence of [this
doctrine] in federal habeas, habeas petitioners would be able to
avoid the exhaustion doctrine by defaulting their federal claims
in state court.”).
Where procedural default arises from a failure to meet
state-law procedural requirements, such failure may be excused by
a showing of “cause for the default and actual prejudice” from
violation of federal law, or “that failure to consider the claims
would result in a fundamental miscarriage of justice.”
750.
Id. at
To show cause and prejudice, “some objective factor
external to the defense [must have] impeded efforts to comply
with the State’s procedural rule.”
373, 381 (3d Cir. 2004).
Slutzker v. Johnson, 393 F.3d
The petitioner argues in response to
the Commonwealth’s Answer that the cause for his default was
reliance on “well settled authority” that he would be able to
present his layered ineffective assistance claims for the first
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time on appeal of his PCRA claim, and was prejudiced by an
inability to raise that claim.
As discussed above, the law is
well settled to the contrary of the petitioner’s position.
Because he has not made a showing that he was otherwise
externally impeded from bringing his claims, his procedural
default cannot be excused and his petition must be denied.
BY THE COURT:
/s/ Mary A. McLaughlin
MARY A. McLAUGHLIN, J.
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