GARCIA v. ADAMS et al

Filing 21

ORDERED THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; PRO SE PETITIONERS OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED; THE PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS FILED BY PRO SE PETITIONER, JOSE L. G ARCIA, AND SUPPLEMENT TO PETITIONERS HABEAS CORPUS FILED BY PRO SE PETITIONER, ARE DENIED AND DISMISSED; PRO SE PETITIONERS MOTION FOR APPOINTMENT OF COUNSEL IS DENIED. IT IS FURTHER ORDERED THAT A CERTIFICATE OF APPEALABILITY WILL NOT ISSUE BECAUSE REASONABLE JURISTS WOULD NOT DEBATE (A) THIS COURTS DECISION THAT THE PETITION DOES NOT STATE A VALID CLAIM OF THE DENIAL OF A CONSTITUTIONAL RIGHT. SIGNED BY HONORABLE JAN E. DUBOIS ON 2/20/20. 2/21/20 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSE L. GARCIA,

CIVIL ACTION
Petitioner,

v.
JOHN T. ADAMS,
THE DISTRICT ATTORNEY OF THE
COUNTY OF BERKS,
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

NO. 17-5249

ORDER
AND NOW, this 19th day of February, 2020, upon consideration of Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus filed by pro se petitioner, Jose L. Garcia (Document
No. 1, filed November 20, 2017), Supplement to Petitioner’s Habeas Corpus filed by pro se
petitioner (Document No. 9, filed May 30, 2019), the record in this case, the Report and
Recommendation of United States Magistrate Judge Lynne A. Sitarski dated August 27, 2019,
Objections to the Report and Recommendation filed by pro se petitioner (Document No. 18, filed
November 12, 2019), and pro se petitioner’s Motion for Appointment of Counsel (Document No.
20, filed February 6, 2020), IT IS ORDERED as follows:
1.

The Report and Recommendation of United States Magistrate Judge Lynne A.

Sitarski dated August 27, 2019, is APPROVED and ADOPTED;
2.

Pro se petitioner’s Objections to the Report and Recommendation are

OVERRULED;
3.

The Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus filed by pro se

petitioner, Jose L. Garcia, and Supplement to Petitioner’s Habeas Corpus filed by pro se
petitioner, are DENIED and DISMISSED;

4.

Pro se petitioner’s Motion for Appointment of Counsel is DENIED.

IT IS FURTHER ORDERED that a certificate of appealability will not issue because
reasonable jurists would not debate (a) this Court’s decision that the petition does not state a
valid claim of the denial of a constitutional right, or (b) the propriety of this Court’s procedural
ruling(s) with respect to petitioners claim(s). See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 484 (2000).
The decision of the Court is based on the following:
1.

On January 17, 2013, a jury found pro se petitioner guilty of two counts of

aggravated indecent assault, two counts of indecent assault, one count of aggravated indecent
assault of a child and one count of corruption of minors. On April 16, 2013, the trial court
sentenced pro se petitioner to an aggregate term of eight and a half to twenty-five years of
imprisonment. The remaining procedural history is detailed in the Report and Recommendation;
2.

The instant Petition for Writ of Habeas Corpus was filed on November 14, 2017.

In it, pro se petitioner asserts fifteen claims. Nine of his claims – Grounds 1A, Two, Three,
Nine, Ten, Eleven, Twelve, Thirteen, and Fourteen—are procedurally defaulted because the
Pennsylvania Courts relied on independent and adequate state grounds to foreclose review of
those claims. Those independent and adequate state grounds – Pennsylvania’s waiver rule, 42
Pa.C.S. § 9544(b); Pa. R. App. P. 302(a); and the PCRA one-year statute of limitations, 42
Pa.C.S. § 9545(b) – preclude habeas review unless pro se petitioner shows “cause and prejudice”
or a “fundamental miscarriage of justice” to excuse the procedural default. The Magistrate Judge
found there was no “cause and prejudice” or a “fundamental miscarriage of justice,” findings
with which this Court agrees;

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3.

Pro se petitioner’s remaining six claims—Grounds 1B, Four, Five, Six, Seven,

and Eight—all raise claims of ineffectiveness assistance of trial counsel and were properly
exhausted by PCRA Petition. However, the Magistrate Judge found, and this Court, agrees, that
pro se petitioner did not show that the adjudications of those claims “(1) resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or, (2) 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.” 28 U.S.C. § 2254(d)(1)-(2);
The Pennsylvania Courts applied Pennsylvania’s three-pronged ineffectiveness test,
which is not contrary to Strickland v. Washignton, 466 U.S. 668 (1984). In short, pro se
petitioner failed to demonstrate that his counsel performed deficiently, and he failed to show he
was prejudiced by any alleged deficient performance;
4.

For the most part, pro se petitioner’s Objections merely disagree with the

conclusions of the Magistrate Judge and offer no new substantive arguments. His newly asserted
arguments address the Magistrate Judge’s conclusions about his procedurally defaulted claims.
Specifically, he contends that the procedural default on his Grounds 1A, Two, Three, Nine, Ten,
Eleven, Twelve, Thirteen, and Fourteen should be excused under Martinez v. Ryan, 566 U.S. 1
(2012). Pro se petitioner’s reliance on Martinez is misplaced. Martinez held that collateral
counsel’s ineffectiveness may excuse the procedural default for a claim of trial counsel’s
ineffectiveness but none of those ground assert claims of ineffective assistance of trial counsel.
Pro se petitioner’s sole procedurally defaulted ineffectiveness claim, Ground Ten, is also not
excused under Martinez because it is meritless and is a variant of another claim addressed on the

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merits, Ground 1B, and rejected by the Magistrate Judge. This Court agrees with that disposition
by the Magistrate Judge;
Pro se petitioner’s other newly raised argument in his Objections relates to his Ground
Thirteen, a sentencing claim. The Magistrate Judge analyzed that claim in her Report and
Recommendation and concluded that the procedural default was not excused, a conclusion with
which this Court agrees; and
5.

With respect to pro se petitioner’s Objections to Grounds 1B, Four, Five, Six,

Seven and Eight, pro se petitioner merely disagrees with the Report and Recommendation with
which this Court is in agreement. The Pennsylvania’s Courts reasonably denied the claims under
Strickland and the adjudication did not result in an unreasonable determination of the facts,
BY THE COURT:
/s/ Hon. Jan E. DuBois
DuBOIS, JAN E., J.

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