Mojica v. Garman et al

Filing 23

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. THE OBJECTIONS TO THE R&R ARE WITHOUT MERIT AND ARE OVERRULED. PETITIONER'S PETITION FOR WRIT OF A HABEAS CORPUS IS DENIED. NO PROBABLE CAUSE EXISTS TO ISSUE A CERTIFICATE OF APPEALABILITY. THE CLERK OF COURT IS DIRECTED TO MARK THIS MATTER CLOSED. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 4/19/2019. 4/19/2019 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ERNIE MOJICA
Petitioner-pro se

CIVIL ACTION
NO. 18-2021

v.
MARK GARMAN, et al.
Respondents

ORDER
AND NOW, this 19th day of April 2019, upon consideration of the pleadings and record

herein, including, inter alia, the petition for writ of habeas corpus (the "Petition") filed pursuant
to 28 U.S.C. § 2254 by Petitioner Ernie Mojica proceeding pro se, ("Petitioner"), [ECF 2]; the
responses to the Petition filed by Respondents, [ECF 16, 17]; the state court record; the Report and
Recommendation issued by United States Magistrate Judge Elizabeth T. Hey ("the Magistrate

Judge") which recommended that the Petition be denied as unexhausted and procedurally
defaulted, [ECF 18]; and Petitioner's objections, [ECF 22], and after conducting a de nova review
of the objections, it is hereby ORDERED that:
1.

The Report and Recommendation (the "R&R") is APPROVED and ADOPTED;

2.

The objections to the R&R are without merit and are OVERRULED; 1

Petitioner was convicted by a jury of two counts each of burglary, criminal trespass, theft by
unlawful taking, receiving stolen property and conspiracy. Petitioner was ultimately sentenced to an
aggregate term of 101h to 50 years imprisonment. In his habeas corpus petition, Petitioner claims that trial
counsel was ineffective. After carefully considering the state record, in the R&R, the Magistrate Judge
recommends that the habeas corpus petition be denied because his claims are unexhausted and procedurally
defaulted. The Magistrate Judge based the default finding on the fact that Petitioner's appeal of the denial
of his PCRA petition was dismissed by the Pennsylvania Superior Court for Petitioner's failure to file an
appellate brief as ordered. The Magistrate Judge concluded that Petitioner could not show cause for the
default and prejudice, nor demonstrate a miscarriage of justice. Though the Magistrate Judge noted
Petitioner's assertion that his failure to file a brief was the result of difficulty with jail mail, she rejected the
argument as insufficient to establish cause for his default. In his objections, Petitioner asserts that his
default is excused under Martinez v. Ryan, 566 U.S. l (2012). Petitioner is, however, mistaken. Under
Martinez, a prisoner can obtain review of a procedurally defaulted claim of ineffective assistance of trial

3.

Petitioner's petition for a writ of habeas corpus is DENIED; and

4.

No probable cause exists to issue a certificate of appealability. 2

The Clerk of Court is directed to mark this matter CLOSED.

BY THE COURT:

/s/ Nitza I Quifzones Alejandro
NITZA I. QUINONES ALEJANDRO
Judge, United States District Court

counsel by showing, inter alia, that counsel at the initial-review collateral proceeding was also ineffective,
and that the underlying claim of ineffective assistance at trial is "substantial." Martinez, 566 U.S. at 13-14.
Petitioner fails to make such a showing. Instead, in his objections, he argues that the ineffectiveness of the
Prothonotary of the Pennsylvania Superior Court in getting the briefing order to him caused his default, and
that the Prothonotary's failure "likens to that of Counsel failing to file a brief." This argument is legally
insufficient.
Notably, it was the Magistrate Judge who raised Martinez, sua sponte, but found that Martinez was
inapplicable because Petitioner does not argue in the Petition that the ineffectiveness of PCRA counsel
caused the default, and because his ineffective-assistance claims were heard by the PCRA court. See Cox
v. Horn, 757 F.3d 113, 118 (3d Cir. 2014) (noting that Martinez may be applicable only in cases where,
absent an excusal of the default, "no court - state or federal - would ever review the defendant's ineffective
assistance claims."). This Court agrees with the Magistrate Judge. In addition, Martinez has not been
extended to allegations that a court allegedly provided ineffective assistance. Therefore, Petitioner's
objection based on the Pennsylvania Superior Court's alleged ineffectiveness is without merit and
overruled. This Court further agrees with the Magistrate Judge's conclusions that Petitioner failed to
establish cause for the default and prejudice from it, or show a fundamental miscarriage of justice. See
Holloway v. Horn, 355 F.3d 707, 715 n.3 (3d Cir. 2004)(noting that a federal court may consider the merits
of a procedurally defaulted claim only if "the petitioner establishes 'cause and prejudice' or a 'fundamental
miscarriage of justice' to excuse the default.") (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
For the reasons noted, this Court finds that the claims in the Petition are unexhausted and procedurally
defaulted.
A district court may issue a certificate of appealability only upon "a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c). A petitioner must "demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Lambert v. Blackwell, 387 F.3d 210, 230 (3d Cir. 2004). For the
reasons set forth, this Court concludes that no probable cause exists to issue such a certificate in this action
because Petitioner has not made a substantial showing of the denial of any constitutional right. Petitioner
has not demonstrated that reasonable jurists would find this Court's assessment "debatable or wrong."
Slack, 529 U.S. at 484. Accordingly, there is no basis for the issuance of a certificate of appealability.

2