RIVERA v. SOMMERS et al

Filing 49

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/30/17. 10/31/17 ENTERED AND COPIES MAILED TO PETITIONER AND EMAILED TO COUNSEL.(jaa, )

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

AMILICAR RIVAS RIVERA,

16-456

v.
SUPT. JACK SOMMERS, et al.,
ORDER-MEMORANDUM
AND NOW this 30th day of October 2017, upon considering Amilcar Rivas Rivera's 1

Petitions for writ of habeas corpus (ECF Doc. No. 1)2, the District Attorney's Answer (ECF Doc.
No. 17), Mr. Rivera's Counterclaim (ECF Doc. No. 21) 3, Mr. Rivera's Opposition to.the Answer
(ECF Doc. No. 41), after careful and independent review of United States Magistrate Judge Henry
S. Perkin's August 30, 2017 extensive well-reasoned Report and Recommendation (ECF Doc. No.
42) and Mr. Rivera's Objections (ECF Doc. No. 46), it is ORDERED:
1.

We OVERRULE Mr. Rivera's Objections (ECF Doc. No. 46) and APPROVE

and ADOPT Judge Perkin's extensive well-reasoned Report and Recommendation (ECF Doc.

No. 42);
2.

We DENY and DISMISS Mr. Rivera's Petition for writ of habeas corpus (ECF

1

Although Mr. Rivera is listed as Amilicar Rivas Rivera on the current docket, it appears his name
is Amilcar Rivas Rivera. The Unified Judicial System of the Pennsylvania Web Portal identifies
three criminal matters listed for Mr. Rivera in Lancaster County. Mr. Rivera's name is also listed
as Amilca Amik Rivas, Amilcal A. Rivas and Amilcar Rivas-Revera. Mr. Rivera's date of birth is
October 6, 1983.
2

Mr. Rivera signed the instant prose Petition for writ of habeas corpus on January 19, 2016, as
docketed by the Clerk of Court in the United States District Court for the Middle District of
Pennsylvania on January 25, 2016. Judge Munley transferred the Petition to this District on July
27, 2016.

3

On August 29, 2016, Mr. Rivera filed a "Motion for Leave to File Counterclaim to the
Commonwealth's Answer to Petition for Writ of Habeas Corpus." See ECF Doc. No. 19. Based
on our review of his Motion and attachment (ECF Doc. No. 19-2), it appeared Mr. Rivera sought
leave to file a reply in response to the District Attorney's Answer. On September 26, 2016, we
granted Mr. Rivera's Motion for leave, finding the attachment is his reply brief. See ECF Doc.
Nos. 20, 21.

Doc. No. 1) with prejudice and without an evidentiary hearing; and,
3.

There is no probable cause to issue a certificate of appealability as Mr. Rivera has

not demonstrated reasonable jurists would debate the correctness of the procedural aspects of this
ruling nor has he made a substantial showing of the denial of a constitutional right.

Analysis
In September and October 2011, Amilicar Rivas Rivera and several co-conspirators
allegedly committed almost thirty burglaries in and around Lancaster, Pennsylvania. 4

On

February 12, 2013, Mr. Rivera pleaded guilty' before the Honorable Joseph Madenspacher to
fifty-four charges stemming from the burglaries. 5 Represented by attorney Elizabeth Low, Mr.
Rivera entered into an open plea and agreed with the Commonwealth to limit his overall exposure
to the sentencing guidelines. 6 Attorney Low and the assistant district attorney agreed several of
the sentences relating to Mr. Rivera's second degree burglary charges and attempted burglary
charges would run concurrently with one another and with Mr. Rivera's first degree burglary
charges. 7 Judge Madenspacher accepted Mr. Rivera's guilty plea and sentenced Mr. Rivera to
fifteen to thirty years imprisonment. 8 On February 22, 2013, Mr. Rivera filed a direct appeal
seeking modification of his sentence, which Judge Madenspacher denied on February 26, 2013. 9
Mr. Rivera did not file a direct appeal to the Pennsylvania Superior Court. Mr. Rivera's sentence

4

ECF Doc. No. 42, p. 2.

5

Id.

6

Id. at 2-3.

7

Id. at 3.

8

Id.

9

Id.
2

became final on April 10, 2013, thirty days after Judge Madenspacher's last order on March 11,
2013. 10

Mr. Rivera's first PCRA petition.
On February 2, 2014, Mr. Rivera prose timely filed his first Post Conviction Relief Act
("PCRA") petition, claiming Attorney Low provided ineffective assistance of counsel during his
guilty plea process. 11 On April 7, 2014, Judge Madenspacher appointed R. Russell Pugh as Mr.
Rivera's PCRA counsel. In his first amended PCRA petition, Mr. Rivera alleged he plead guilty
involuntarily and unknowingly based on Attorney Low' s ineffective assistance of counsel.
Specifically, Mr. Rivera claimed innocence on several of the burglary charges and argued
Attorney Low told him the Commonwealth would withdraw those charges ifhe plead guilty to the
remaining charges, actions the Commonwealth never took. 12 On April 15, 2014, Mr. Rivera filed
a second amended PCRA petition clarifying his arguments on the same claims. 13 On July 1, 2014,
Judge Madenspacher held an evidentiary hearing on Mr. Rivera's PCRA ineffective assistance of
counsel claims where both Mr. Rivera and Attorney Low testified. On October 31, 2014, Judge
Madenspacher denied all of Mr. Rivera's PCRA petitions. 14
Mr. Rivera timely appealed Judge Madenspacher's denial of his PCRA petition to the
Pennsylvania Superior Court. 15 On December 3, 2014, Mr. Rivera filed his statement of matters
complained of upon appeal arguing the PCRA court erred by denying post-conviction relief where
lo

Id.

11

Id. at 4.

12

Id.

13

Id.

14

Id. at 5.

15

Id.
3

his "guilty plea was conditioned on the withdrawal of certain charges against him" but the charges
were never withdrawn 16 and Attorney Low "was ineffective in a) inducing [Mr. Rivera] to plead
guilty on an unrealized promise that certain charges would be withdrawn; and b) failing to ensure
that the Commonwealth performed the promise made to her client." 17 On June 19, 2015, the
Superior Court affirmed Judge Madenspacher's denial of Mr. Rivera's PCRA petition.

18

The same

day, Mr. Rivera's PCRA counsel Mr. Pugh advised Mr. Rivera he could file a federal habeas
petition if Mr. Rivera chose to do so. 19 Instead, Mr. Rivera petitioned the Pennsylvania Supreme
Court for an allowance of appeal. On December 8, 2015, the Pennsylvania Supreme Court
declined review. 20

Mr. Rivera's second PCRA denial and appeal.
On February 1, 2016, almost two years after filing his first PCRA petition, Mr. Rivera filed
his second PCRA petition.

On March 11, 2016, after giving Mr. Rivera notice under Pa.

R.Crim.P. 907 of its intent to dismiss Mr. Rivera's PCRA petition as untimely, the PCRA court
denied Mr. Rivera's PCRA petition. 21 The PCRA court declined to give Mr. Rivera's second
PCRA petition an evidentiary hearing. 22
Once again, Mr. Rivera appealed the denial of his PCRA petition to the Pennsylvania

16

Id. at 5-6.

17

Id. at 6.

18

Id.

19

ECF Doc. No. 46-2, p. 5.

20

ECF Doc. No. 42, p. 6.

21

Id. at 7.

22

Id.
4

Superior Court.

23

On February 21, 2017, the Pennsylvania Superior Court denied Mr. Rivera

PCRA relief. TI:ie Superior Court denied relief because Mr. Rivera failed to timely file his second
PCRA petition.

24

On July 21, 2017, Mr. Rivera petitioned for allowance of appeal in the

Pennsylvania Supreme Court. 25 The Pennsylvania Supreme Court has not yet ruled on Mr.
Rivera's petition.

Mr. Rivera's habeas petition.
On January 19, 2016, Mr. Rivera petitioned for a writ of habeas corpus in the United States
District Court for the Middle District of Pennsylvania. 26 Mr. Rivera plead five grounds for relief:
1. Ineffective assistance of guilty plea counsel. Counsel induced Mr. Rivera to plead guilty
and failed to tell Mr. Rivera he could plead guilty on some charges and go to trial on other
burglary charges. Instead, Mr. Rivera claims counsel told him the Commonwealth would
withdraw on five charges if Mr. Rivera first signed the guilty plea.

2. Ineffective assistance of PCRA counsel: Mr. Rivera argues PCRA counsel failed to file
effective amended PCRA petition and failed to present evidence refuting the prosecutions
arguments about the plea deal. Mr. Rivera also claims his PCRA counsel made false
statements in PCRA counsel's brief and ignored Mr. Rivera's wishes when appealing to
the Superior Court.
3. Prosecutorial misconduct: Mr. Rivera claims the prosecutor went outside the four comers
of the record and presented a fabricated burglary charge. Mr. Rivera also argues the
prosecutor allowed Mr. Rivera's guilty plea counsel to give false statements while she
testified.

4. Abuse of discretion: Mr. Rivera claims the guilty plea judge abused his discretion by
giving false statements in his opinion, misapplying rules of criminal procedure, and
construing a letter Mr. Rivera sent the court as a motion.
5.

Newly discovered evidence: Mr. Rivera claims he found a newspaper article purportedly

23

Id.

24

Id. at 7-8.

25

Id. at 8.

26

ECF Doc. No. 42, p. 8. The district court transferred the case to this District and we referred the
issues to Judge Perkin for a report and recommendation.
5

exonerating him of several of the burglaries.
Mr. Rivera also filed a supporting Memorandum with thirteen additional allegations:
1. Counsel deprived Mr. Rivera of a voluntary plea because she lied to him about the
Commonwealth's agreement to withdraw charges if Mr. Rivera plead guilty first.
2. Counsel had no reasonable basis for failing to tell Mr. Rivera about the ability to sever
some of the burglary charges.
3. Mr. Rivera believed he could sever some of the burglary charges.
4. PCRA counsel acted ineffectively by filing an amended PCRA petition adding an
additional burglary claim without Mr. Rivera's permission.
5. PCRA counsel acted ineffectively by failing to object to prosecutorial misconduct arising
from the prosecutor introducing allegedly fabricated police reports. Mr. Rivera also claims
the admission of the police reports constitutes plain error.
6. PCRA counsel acted ineffectively by failing to object to prosecutor's speculative questions
and refused to introduce documents refuting prosecutor's speculation.
7. There is a conflict of interest between PCRA counsel and Mr. Rivera.
8. Counsel (not clear which one) acted ineffectively by failing to address prejudice caused by
prosecutor's statements.
9. PCRA counsel acted ineffectively by inserting a burglary charge into a PCRA brief even
though PCRA counsel knew Mr. Rivera did not wish to argue the charge.
10. Prosecutor violated Mr. Rivera's due process rights by mischaracterizing Mr. Rivera's
PCRA claim in referring to irrelevant burglaries "infecting the trial with unfairness."
11. Prosecutor went outside the four comers of the record by referring to several burglaries Mr.
Rivera allegedly participated in.
12. Judge Madenspacher abused his discretion by directing Mr. Rivera's letter be considered a
motion when Mr. Rivera claims he sent the judge a proper motion two days earlier.
13. Judge Madenspacher abused his discretion by "[making] judgment on the 735 State Street
info.," even though Mr. Rivera made Judge Madenspacher aware he did not wish to claim
his innocence as to the charge.

Mr. Rivera now claims Judge Perkin erred by: 1) finding Mr. Rivera's second PCRA
petition untimely and thus procedurally defaulted; 2) misconstruing Mr. Rivera's PCRA petition
6

by blaming PCRA counsel for procedural defaulted arguments; 3) accepting guilty plea counsel's
statements she never told Mr. Rivera about the Commonwealth's agreement to withdraw charges
if Mr. Rivera plead guilty; 4) rejecting Mr. Rivera's alibi arguments; 5) improperly relying upon
the findings of the PCRA court and Pennsylvania Superior Court; and 6) improperly rejecting an
allegedly exculpatory newspaper article and eye witness alibi testimony.
We address each of Mr. Rivera's arguments in turn mindful we must conduct a de

nova review of those portions of the report to which objections are made.

27

Although

the standard of review for objections is de nova, the extent of review lies within our discretion and
we may otherwise rely on the recommendations of the magistrate judge to the extent we deem
proper. 28 For portions of the Report and Recommendation to which no objection is made, we
should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the
record in order to accept the recornrnendation." 29 Regardless of whether timely objections are
made by a party, we may accept, not accept, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 30

27

28 U.S.C. 636(b)(l); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).

28

Koch v. Exec. Office of United States Attorneys, No. 16-1554, 2016 WL 6948268, at *2 (M.D.
Pa. Nov. 28, 2016)(citing Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D. Pa. 2000)); United States
v. Raddatz, 447 U.S. 667, 676 (1980)).
29

Koch, 2016 WL 6948268, at *2 (citing Fed. R. Civ. P. 72(b), advisory committee notes; see
also Univac Dental Co. v. Dentsply Intern., Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa. 2010);
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)) Gudges should give some review to
every report and recommendation)).

° Koch, 2016 WL 6948268, at *2.

3

7

1. Judge Perkin correctly concluded Mr. Rivera's second PCRA petition is time-barred

and procedurally defaulted, barring federal habeas review.

Mr. Rivera argues Judge Perkin incorrectly concluded his second PCRA is untimely,
unexhausted, and procedurally defaulted. He also argues Judge Perkin ignored evidence
demonstrating his second PCRA is timely, and Judge Perkin erroneously determined grounds two
through five of his habeas petition and grounds two through thirteen of his memorandum of law
are procedurally defaulted because they are pending review by the Pennsylvania Supreme Court.
Mr. Rivera is incorrect on all accounts.
The habeas corpus relief Mr. Rivera seeks is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254(d). Mr. Rivera's habeas
petition can only succeed if Mr. Rivera can show: 1) he has exhausted his claims in state court; and
2) the state court's resolution of his claim is contrary to, or is an objectively unreasonable
application of clearly established federal law. 31
Mr. Rivera must present all of his claims to the Pennsylvania Superior and Supreme courts
before a federal district court may entertain a habeas petition. 32 Under the federal habeas statute as
amended by AEDP A, "we may not grant a state prisoner's petition for a writ of habeas corpus
unless the applicant has exhausted the remedies available in the courts of the State or there is an
absence of available State corrective process." 33 "The exhaustion requirements ensures that state
courts have the first opportunity to review federal constitutional challenges to state convictions
and preserve the role of the state courts in protecting federally guaranteed rights." 34 "[S]tate
31

28 U.S.C. § 2254(d)(l); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002).

32

28 U.S.C § 2254(b)(l)(A); 0 'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

33

Mattis v. Vaughn, 128 F. Supp. 2d 249, 256 (E.D. Pa. 2001), affd, 80 Fed. Appx. 154 (3d Cir.
2003)(citing 28 U.S.C. § 2254(b)(l)(A) and (B)(i)(internal quotations omitted)).
34

Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992).
8

remedies must be exhausted except in unusual circumstances." 35 Principles of comity "dictate that
when a prisoner alleges that his continued confinement for a state court conviction violates federal
law, the state court should have the first opportunity to review his claim and provide the necessary
relief. " 36
To satisfy the exhaustion requirement, Mr. Rivera must demonstrate he "fairly presented"
his claim to the state court. 37 He must show his federal habeas claim is the "substantial
equivalent" of the claim he submitted to the state court. 38 Mere similarity of the state and federal
issues is not enough. 39 The relevant inquiry is whether Mr. Rivera presented the same facts and
legal theory in the state court as in his federal habeas petition. 40 Mr. Rivera bears the burden of
proving exhaustion of all state remedies for each claim.

41

We generally bar federal habeas review when a petitioner fails to comply with state
procedural rules regarding the state court's review of a claim. 42 If a petitioner fails to exhaust
state remedies and the petitioner is now procedurally barred from meeting the exhaustion
requirements in the state court, federal habeas courts will deem the claim procedurally defaulted

35

Rose v. Lundy, 455 U.S. 509, 515 (1982).

36

O'Sullivan, 526 U.S. at 844-45.

37

Duncan v. Henry, 513 U.S. 364, 365 (1995).

38

Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989).

39

Duncan, 513 U.S. at 366.

40

Nara v. Frank, 488 F.3d 187, 198 (3d Cir. 2007).

41

Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993).

42

Coleman v. Thompson, 501 U.S. 722, 729-32 (1991).
9

because state exhaustion is no longer available. 43
Once we determine a claim is procedurally defaulted, we may not review the claim unless
the petitioner can demonstrate: 1) cause for the default and actual prejudice as a result of the
alleged violation of federal law; or 2) the failure to consider the claim results in a fundamental
miscarriage of justice. 44 To show cause for a procedural default, the petitioner must show some
objective, external factor prevented them from complying with the state procedural rules. To
demonstrate prejudice, the petitioner must show the external factor "worked to [petitioner's] actual
and substantial disadvantage, infecting the entire trial with error of constitutional dimensions."45
To show a fundamental miscarriage of justice, petitioner must demonstrate actual innocence and
must show it is more likely than not a reasonable juror would not have convicted him absent the
alleged error. 46
A habeas petition can only succeed if, in addition to the state claim being exhausted, the
state court's resolution is contrary to or constituted an objectively unreasonable application of
federal law. "A state court decision is contrary to clearly established federal law if the state court
(1) contradicts the governing law set forth in the [Supreme] Court's cases or (2) confronts a set of
facts that are materially indistinguishable from the decision of the [Supreme] Court and
nevertheless arrives at a [different] result." 47 A state court decision involves an unreasonable
application of clearly established federal law if the state court identifies the correct governing rule
43

Id. at 735 n.l.

44

Id. at 750.

45

Murray v. Carrier, 477 U.S. 487, 494 (1986).

46

Schlup v. Delo, 513 U.S. 298, 327 (1995).

47

Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004)(internal quotations and citations
omitted).
10

but unreasonably applies it to the facts of the case or unreasonably extends the legal principle to a
context where it does not apply. 48 An objectively unreasonable application requires the state court
decision be both incorrect and unreasonable. 49 State court factual determinations are given
considerable deference under the AEDP A.

50

A petitioner must establish the state court

adjudication of their claim "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."

51

Mr. Rivera argues his second PCRA is timely because according to the AEDP A, he has one
year from the date on which his sentence becomes final to seek habeas review. 52 He calculates the
final-sentence date as March 28, 2013. 53 Mr. Rivera correctly states, as Judge Perkin did, he
timely filed his first PCRA petition. Mr. Rivera also correctly notes the Pennsylvania Supreme
Court denied his first PCRA petition on December 8, 2015. Mr. Rivera correctly argues he could
only file one PCRA petition at a time. Mr. Rivera claims his first PCRA tolled the one-year state
PCRA deadline to file a subsequent PCRA petition, giving him until December 2016 to file his
second PCRA petition. Mr. Rivera correctly notes he filed his second PCRA petition on January
27, 2016.

All would be well for Mr. Rivera, except he confuses federal AEDPA law and

Pennsylvania PCRA law.

48

Id.

49

Williams v. Taylor, 529 U.S. 362, 405-06 (2000)(emphasis added).

50

Lambert, 387 F.3d at 239.

51

28 U.S.C. § 2254(d)(2).

52

ECF Doc. No. 46, p. 2-3.

53

Judge Perkin calculated Mr. Rivera's final sentence date as April 10, 2013. Regardless which
date is used, Mr. Rivera's second PCRA is untimely as he filed it three years later in January 2016.
11

Pennsylvania's PCRA law is unlike the federal AEDPA. Under the AEDPA, a properly
filed state PCRA petition tolls AEDPA's one-year deadline to file a federal habeas petition while
the state PCRA petition is pending. 54 But the AEDPA's federal tolling provision "has no effect on
the time limitation set forth under the Pennsylvania PCRA." 55 To be timely, a state PCRA
petition, "including a second or subsequent petition, shall be filed within one year of the date the
judgment becomes final [.]" 56 "[T]he period for filing a PCRA petition is not subject to the
doctrine of equitable tolling" except for three, narrow exceptions. 57 A PCRA petition may be filed
outside of the one year limit only upon showing: 1) governmental interference in violation of state
or federal constitutions caused the delay; 2) newly discovered evidence advances the petitioner's
claim; and, 3) the Supreme Court or Pennsylvania Supreme Court recognizes a new constitutional
right not available to the petitioner at the time of the petition and applies retroactively. 58 PCRA
petitions filed in Pennsylvania after the one year deadline may not be exhausted by the state courts
because they are too late. Because these late PCRA claims cannot be exhausted, they become
procedurally defaulted and may not be reviewed as habeas petitions by the federal district court. 59
Mr. Rivera's second PCRA petition is untimely because he did not file it within the one
year deadline required by 49 Pa.C.S. § 9541. Mr. Rivera argues his first PCRA petition tolled the
54

Lawrence v. Florida, 549 U.S. 327 (2007)(citing 28 U.S.C. 2244(d)(2)).

55

Lewis, 63 A.3d at 1278.

56

Id. (citing 42 Pa.C.S. § 9545(b)(l)). A judgment is deemed final "at the conclusion of direct
review, including discretionary review in the Supreme Court of the United States and the Supreme
Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.A. §
9545(b)(3).
57

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

58

42 Pa.C.S. § 9545(b)(l).

59

See Mattis v. Vaughn, 128 F. Supp. 2d 249, 256 (E.D. Pa. 2001).

12

statute of limitations for all subsequent PCRA petitions while his first petition wound its way
through the Pennsylvania appellate system. Mr. Rivera is incorrect. While his first PCRA tolled
the statute of limitations for a federal habeas petition under AEDP A, it did nothing to toll the one
year deadline for filing all of Mr. Rivera's Pennsylvania PCRA petitions. Mr. Rivera's sentence
became final on March 28, 2013, meaning he had until March 28, 2014 to file all his PCRA
petitions. When Mr. Rivera filed his second PCRA petition in January 2016, the one year PCRA
deadline had long since passed. Both the Lancaster County PCRA court which initially reviewed
Mr. Rivera's second PCRA petition and the Pennsylvania Superior Court found Mr. Rivera's
second PCRA petition untimely and declined to rule on it. This leaves Mr. Rivera's second
PCRA petition unexhausted. Because Mr. Rivera's second PCRA claim is unexhausted, Judge
Perkin correctly recommended we deny it as untimely and procedurally defaulted. 60
Mr. Rivera also argues Judge Perkin improperly disregarded evidence demonstrating Mr.
Rivera filed his second PCRA petition on January 19, 2016. 61 Mr. Rivera argues he provided
Judge Perkin with three separate documents proving he mailed both his federal habeas petition and
his second PCRA petition on January 19, 2016. Mr. Rivera claims the mailbox rule saves his
habeas petition because he claims he mailed his petition within the one-year deadline. Even if Mr.

Rivera did mail his second PCRA petition on January 19, 2016, Judge Perkin correctly finds Mr.
Rivera's second petition falls far outside the one-year deadline to file his PCRA petitions. Mr.
Rivera's second PCRA petition is untimely and procedurally defaulted regardless of the date he
mailed it in January, 2016.
60

Judge Perkin also analyzed whether Mr. Rivera exhausted any claim in his second PCRA
petition and could be presented in Mr. Rivera's habeas petition, although Mr. Rivera does not
object on these grounds. Judge Perkin found Mr. Rivera exhausted his ineffective assistance of
counsel claim because it is identical to the ineffectiveness claim in his first PCRA petition. Judge
Perkin also found Attorney Low acted effectively during the guilty plea.
61

ECF Doc. No. 46, p. 5.
13

Lastly, Mr. Rivera argues Judge Perkin prematurely found counts two through five of his

habeas petition and counts two through thirteen of his memorandum are unexhausted because Mr.
Rivera asserts his second PCRA petition is pending before the Pennsylvania Supreme Court. 62
Mr. Rivera argues he must present his PCRA claims to the Pennsylvania Supreme Court before we
may entertain his habeas petition. Mr. Rivera argues because his second PCRA petition is still
pending before the Pennsylvania Supreme Court, Judge Perkin prematurely found all but his first
count unexhausted. Mr. Rivera would have us wait until the Pennsylvania Supreme Court ruled on
his PCRA petition to do so.
Mr. Rivera loses either way. Under Pennsylvania Supreme Court Order No. 218, PCRA
petitions are removed from the Court's discretionary review, making review unavailable. 63 This
denial of review means a PCRA petitioner exhausts state appeal rights once the Pennsylvania
Superior Court denies their PCRA petition, giving a petitioner the right to file a federal habeas
petition. Mr. Rivera's second PCRA claim sits before the Pennsylvania Supreme Court. But
under Supreme Court Rules, his federal habeas petition is proper and not premature. Even if we
were to find Judge Perkin prematurely ruled on his habeas petition, it would be because he has not
exhausted his state appellate rights, making his entire habeas petition improper.

2. Judge Perkin properly found Mr. Rivera's ineffectiveness arguments are directed at
PCRA counsel and not guilty plea counsel.
Mr. Rivera argues Judge Perkin improperly construed his arguments for guilty plea
counsel's ineffectiveness as to arguments for PCRA counsel's ineffectiveness.

64

"The

ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction

62

Id., p. 6.

63

Id.

64

ECF Doc. No. 4 6 , p. 8.
14

proceedings shall not be a ground for relief in a proceeding arising under section 2254." 65 Judge
Perkin found Mr. Rivera "appears to assign blame for the failure to exhaust many if not all [of his
PCRA] claims on PCRA counsel." 66 Mr. Rivera objects. Mr. Rivera attempts to conflate the
unreviewable alleged mistakes of his PCRA counsel with the alleged mistakes of his guilty plea
counsel. Mr. Rivera claims his PCRA counsel failed to correct the mistakes of guilty plea counsel
by not exhausting Mr. Rivera's state remedies which led to procedural default. 67 However, Mr.
Rivera fired his guilty plea counsel soon after his plea and employed PCRA counsel during his
appeal. Only PCRA counsel could have exhausted Mr. Rivera's options for state relief. Mr.
Rivera's claim for relief is based not on the alleged error of guilty plea counsel, but on the alleged
error of PCRA counsel to exhaust all forms of state relief. Section 2254(i) denies Mr. Rivera
relief for alleged ineffectiveness of PCRA counsel during state appeal. Mr. Rivera's arguments
fail.
Mr. Rivera also argues Judge Perkin improperly ignored a letter from PCRA counsel to Mr.
Rivera allegedly demonstrating ineffectiveness.

Mr. Rivera claims PCRA counsel acted

ineffectively by sending Mr. Rivera a letter representing he exhausted his state remedies after the
Pennsylvania Superior Court denied his PCRA petition. Based on Pennsylvania Supreme Court
Order No. 218, PCRA counsel informed Mr. Rivera he did not need to appeal to the Pennsylvania
Supreme Court, but could file a habeas petition upon receiving the Pennsylvania Superior Court's
denial. 68 Mr. Rivera argues this letter constitutes ineffective assistance of counsel, because based
on PCRA counsel's advice, he failed to exhaust his state relief and suffered procedural default.
65

28 U.S.C.A. § 2254(i).

66

ECF Doc. No. 42, p. 28.

67

ECF Doc. No. 46, p. 8.

68

ECF Doc. No. 46-2, p. 5.
15

PCRA counsel correctly and effectively informed Mr. Rivera of his habeas rights. Pennsylvania
Supreme Court Order No. 218 allows a PCRA petitioner to file a federal habeas petition upon
receiving the Pennsylvania Superior Court's dismissal order. 69 The Superior Court's order
exhausts the state law claim. Based on PCRA counsel's objectively correct advice, the Strickland
v. Washington analysis is unnecessary. 70

Judge Perkin did not err by declining to address PCRA

counsel's letter.
3. Judge Perkin properly analyzed guilty plea counsel's effectiveness.

Mr. Rivera claims Judge Perkin erred by improperly accepting guilty plea counsel's
testimony. Mr. Rivera argues guilty plea counsel failed to tell him he could plead guilty to some
burglaries and go to trial on others. 71 Mr. Rivera claims guilty plea counsel deprived him of
constitutionally effective counsel by admitting at the PCRA hearing she did not tell Mr. Rivera
about the possibility of severing the burglary charges. Relying on the PCRA court's transcripts,
Judge Perkin disagreed, and found guilty plea counsel acted properly. Judge Perkin is correct.
To prove ineffective assistance of counsel during a guilty plea, Mr. Rivera must show he
pleaded guilty unintelligently and involuntarily based on his guilty plea counsel's improper
advice. 72 "A habeas petitioner challenging the voluntary nature of his or her plea faces a heavy
burden." 73 To prevail on an ineffectiveness claim under Strickland, a petitioner must demonstrate
both: 1) their counsel "made errors so serious that counsel was not functioning as counsel
guaranteed ... by the Sixth Amendment; and 2) counsel's errors resulted in actual prejudice to the
69

Mattis, 128 F. Supp. at 261.

70

Strickland v. Washington, 466 U.S. 668 (1984).

71

ECF Doc. No. 46, p. 9.

72

See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969).

73

Zilich v. Reid, 36 F.3d 317, 320 (3d Cir. 1994).

16

petitioner.

74

The petitioner must show a reasonable probability but for their counsel's

"unprofessional errors," the results of the proceeding would have been different. 75 "Surmounting
Strickland's high bar is never an easy task." 76
It becomes even harder for a federal habeas petitioner to demonstrate ineffective assistance

of counsel. Under the revised habeas statute, an ineffectiveness claim can succeed only if the
state court's treatment of the ineffectiveness claim is not simply erroneous, but also objectively
unreasonable. 77 Where a state court rejects an ineffectiveness claim, a federal court should defer
to the state court's decision under 28 U.S.C. § 2254(d)(l). 78 "Establishing that a state court's
application of Strickland was unreasonable under § 2254(d) is all the more difficult." 79 Both
Strickland and § 2254 are highly differential to counsel. Federal habeas courts must "guard

against the danger of equating unreasonableness under Strickland with unreasonableness under
§ 2254(d). When§ 2254 applies, the question is not whether counsel's actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard. ,,so
Judge Perkin properly analyzed guilty plea counsel's testimony at the PCRA hearing and
correctly determined guilty plea counsel acted effectively. Mr. Rivera argued in his first PCRA
his guilty plea counsel, Attorney Low, acted ineffectively by inducing Mr. Rivera to plead guilty
74

Id. at 687.

75

Id. at 694.

76

Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739 (2011).

77

Berryman v. Morton, 100 F.3d 1089, 1103 (3d Cir. 1996).

78

Yarborough v. Gentry, 504 U.S. 1, 4 (2003)(per curiam).

79

Premo, 131 S.Ct. at 740 (internal citations and quotations omitted).

so Id.

17

by telling him the Commonwealth would withdraw several burglary charges if Mr. Rivera plead. 81
As Judge Perkin noted, Attorney Low never stated she failed to inform Mr. Rivera some of his
burglary charges would be dropped if he pleaded guilty. 82 In fact, Ms. Low recalled trying to
negotiate for their withdrawal, but the assistant district attorney told her it "was not an option." 83
At the guilty plea hearing, Judge Madenspacher told Mr. Rivera the Commonwealth would
have to meet its burden at trial for each charge against him. 84 Mr. Rivera responded he
understood. Mr. Rivera also said he understood he is entitled to a jury trial instead of pleading
guilty. 85 At the guilty plea hearing, Attorney Low argued Mr. Rivera "was leaving behind several
of what he believes are triable issues; specifically, about a dozen burglaries that there may be some
chance on, in order to take responsibility for the whole." 86 As Judge Perkin noted, at no time did
Mr. Rivera assert his innocence or protest Attorney Low' s representations about his desire to plead
guilty. Mr. Rivera never mentioned not understanding the charges against him. Mr. Rivera then
pleaded guilty to all the charges. 87
Mr. Rivera now claims Judge Perkin improperly considered Attorney Low's testimony at
the guilty plea hearing and the later PCRA evidentiary hearing. Judge Perkin properly evaluated
Attorney Low's testimony and concluded she acted properly. Based on a thorough review of the
state court record, Judge Perkin concluded Attorney Low acted properly and had not violated
81

ECF Doc. No 46, p. 9.

82

ECF Doc. No. 42, p. 22.

83

Id.

84

Id. at 26.

8s

Id.

86

Id.

87

Id.
18

either prong of Strickland. Judge Perkin correctly found Mr. Rivera's guilty plea is valid. Mr.
Rivera objects to Judge Perkin's findings because he disagrees with the result, but cannot plausibly
argue Judge Perkin is incorrect. 88

4. Judge Perkin properly rejected Mr. Rivera's alibi claim.
Mr. Rivera claims Judge Perkin improperly rejected Mr. Rivera's alibi claim. Mr. Rivera
argues he is innocent of several burglaries because he claims being in York, Pennsylvania when
the burglaries occurred in Lancaster, Pennsylvania. 89

Mr. Rivera argues he sent Facebook

messages proving his alibi. Mr. Rivera argues Judge Perkin improperly ignored this obvious
evidence of his innocence. 90 Mr. Rivera is incorrect. Judge Perkin thoroughly analyzed the
potentially exculpatory evidence adduced at the PCRA hearing. Judge Perkin cited the PCRA
court's finding: "[Mr. Rivera's] argument mistakes evidence which may raise a reasonable doubt
with evidence that wholly exonerates [him]."91 Citing the PCRA court, Judge Perkin noted while
Mr. Rivera had the right to present evidence of his innocence at trial, Mr. Rivera chose to forego
88

Mr. Rivera claims Attorney Low acted ineffectively because she admitted she talked to the
Commonwealth about entering a plea on some counts and going to trial on others but never told
Mr. Rivera. Mr. Rivera relies upon Garcia v. United States to support his position. Mr. Rivera
provides the cite for Garcia v. US., 2015 U.S. Dist. Lexis 92558 Civil 08-224 CCC (July 14,
2015). A thorough search reveals no such case. Mr. Rivera argues Garcia holds counsel acts
ineffectively when counsel fails to advise their client of a guilty plea offer from the government.
Mr. Rivera would have us follow Garcia in his case. However, in Garcia, counsel admitted they
failed to tell their client about the government's plea offer. Guilty plea counsel in Mr. Rivera's
case never admitted she failed to tell Mr. Rivera about a guilty plea offer. When asked "did you tell
Mr. Rivera that you had, in fact, either via nolle pros or some sort of method, removed some of the
counts from the guilty plea proceeding?" Attorney Low responded, "I don't think so." Notes of
PCRA evidentiary hearing, July 11, 2014, pp. 6-7. Attorney Low did not admit failing to tell Mr.
Rivera about a plea offer. To the contrary, Ms. Low testified she told Mr. Rivera she had been
unable to work out a plea offer with the Commonwealth.
89

ECF Doc. No. 46, p. 11.

90

Id.

91

ECF Doc. No. 42, p. 21 (citing the PCRA Court's October 31 2014 opinion at 4).
19

trial and plead guilty. "[T]he task before this court is not to evaluate the veracity of [Mr. Rivera's]
evidence. Rather, the focus of this Court is to determine whether [Mr. Rivera] was fully informed
as to the nature and circumstances surrounding the plea when it was tendered. " 92 Mr. Rivera does
not show he pleaded guilty without being fully informed. He had the opportunity to go to trial and
present his evidence to a jury but chose to plead guilty instead. Mr. Rivera's argument fails.
5. Judge Perkin properly relied upon the opinions of the Lancaster County PCRA court
and Pennsylvania Superior Court.

Mr. Rivera claims Judge Perkin erroneously relied upon the reasoning from both the PCRA
court and the Pennsylvania Superior Court. 93 Mr. Rivera does not state why Judge Perkin's
reliance on the state court decisions is improper. Instead, Mr. Rivera simply reiterates his
arguments 94 concerning his innocence and ineffectiveness claims. Mr. Rivera claims Judge
Perkin acted improperly by adopting the state courts' analysis.

However, Judge Perkin's

examination of the state courts' analysis necessary to determine whether Mr. Rivera's clearly
defined federal constitutional rights were violated.

As Mr. Rivera presents no evidence

demonstrating why the state court's analysis is improper, we overrule his objection to Judge
Perkin's findings.

92

Id.

93

ECF Doc. No. 46-1, p. 1, 6.

94

Mr. Rivera reiterates his claims the state court ignored evidence of his innocence including: 1)
Facebook messages demonstrating his presence in York during the timeframe of burglaries in
Lancaster; 2) his use of gloves for burglaries when police found fingerprints at a burglary scene; 3)
repeated arguments concerning Attorney Law's ineffectiveness during the guilty plea; and 4)
deficiencies relating to the guilty plea form itself. Mr. Rivera simply disagrees with the state
courts' rulings but provides no evidence or argument demonstrating their error. Judge Perkin
properly relied upon the state court decisions.

20

6. Judge Perkin properly rejected Mr. Rivera's allegedly exculpatory newspaper
evidence.
Mr. Rivera contends Judge Perkin improperly rejected his allegedly exculpatory evidence
of a newspaper article describing several burglaries in Lancaster city around the time he
committed his crimes. 95 Judge Perkin correctly noted Mr. Rivera's claim is procedurally
defaulted and not cognizable. 96
To the extent Mr. Rivera attempts to argue discovery of the newpaper article constitutes newly
discovered evidence so as to make his second PCRA timely, both Judge Perkin and the
Pennsylvania Superior Court rejected his argument. 97 Mr. Rivera had to file all his PCRA claims
by March 2014. 98 Mr. Rivera claims he found the article on August 13, 2015. However, Mr.
Rivera did not file his petition until February 1, 2016. 99 Although newly discovered evidence is
one of three exceptions to the one-year PCRA statute of limitations, Pennsylvania law requires a
PCRA petitioner to file the new PCRA petition disclosing all newly discovered evidence within
sixty days of discovery. Ioo Failure to file a new PCRA petition disclosing the new evidence within
the sixty day window results in a waiver of the tolling period. IOI Mr. Rivera failed to file his
second PCRA petition within sixty days of allegedly finding the newspaper article. His second
PCRA petition is untimely and remains procedurally defaulted.
95

ECF Doc. No. 46-1, p. 7.

96

ECF Doc. No. 42, p. 36-37.

97

Id.

98

ECF Doc. No. 42, p. 27, n.9.

99

Id. at 37.

100

28 Pa.C.S. § 9545(b)(2); Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

101

Id.
21

Even so, Judge Perkin analyzed Mr. Rivera's claim and correctly dismissed it. Mr. Rivera
never explains how the newspaper article helps him, although Judge Perkin speculated Mr. Rivera
attempted to infer others committed some of the charged crimes. The newspaper article described
burglars who were charged for committing daytime burglaries. 102 Mr. Rivera admitted he only
committed nighttime burglaries. 103 Judge Perkin properly disregarded the newspaper article.

Conclusion
Judge Perkin properly analyzed the state court proceedings as well as Mr. Rivera's
exhausted and non-exhausted habeas claims.

Mr. Rivera has not shown why any of Judge

Perkin's extensive well-reasoned recommendations are incorrect. Following our independent
review, we dismiss Mr. Rivera's petition for habeas corpus relief and deny a certificate of
appealability as there is no probable cause to issue a certificate of appealability as Mr. Rivera has
not demonstrated reasonable jurists would debate the correctness of the procedural aspects of this
ruling nor has he made a substantial showing of the denial of a constitutional right. 104

102

ECF Doc. No. 42, p. 37.

103

Id.

104

See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
22