Kozak v. Commonwealth of PA et al
Filing
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MEMORANDUM For the foregoing reasons, we shall dismiss Kozak's Petition without prejudice to his ability to re-file it after he exhausts his state court remedies. An appropriate Order will issue on today's date.Signed by Honorable Robert D. Mariani on 10/13/12. (jfg)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL KOZAK,
Petitioner,
CIVIL NO. 3:12·CV·1153
(Judge Mariani)
v.
COMMONWEALTH OF
PENNSYLVANIA, et al.,
Respondents
MEMORANDUM
On June 18, 2012, Petitioner Michael Kozak ("Petitioner" or "Kozak"), an inmate presently
confined at the State Correctional Institution Huntingdon ("SCI Huntingdon") in Huntingdon,
Pennsylvania, commenced this QIQ se action by filing a Petition for Writ of Habeas Corpus
("Petitionn) under the provisions of28 U.S.C. § 2254. (Doc. 1.) He challenges his conviction in the
Court of Common Pleas of Luzerne County. The Petition is fully briefed and ripe for disposition.
For the reasons set forth herein, the Petition will be dismissed without prejudice as a result of
Kozak's failure to exhaust his state court remedies.
I.
Factual Background
A.
Criminal Conviction and Direct Appeal Proceedings
The circumstances surrounding Kozak's arrest and conviction were summarized as follows
in the trial court opinion that was issued following Kozak's direct appeal from his judgment of
sentence:
On May 19, 2006 and May 25,2006, [Kozak] obtained and sold crack cocaine to a
police confidential informant, Daniel Pinkowsky, at Pocono Trailer Court in Plains
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Township. [Kozak] did not deny that the transactions took place, but rather, claimed
that he was entrapped as disc~ssed in more detail below. The first four counts of
which he was found guilty are the drug counts for which the entrapment defense
was raised. The fifth count, fleeing or attempting to flee an officer, occurred on May
[25],2006. On that date, a third transaction between [Kozak] and Pinkowsky was
scheduled to take place. However, prior to the meeting, [Kozak] coincidentally
happened to enter the parking lot at the Sheetz and Dairy Queen on Route 315,
where Pinkowsky was meeting with Plains Township Police and drug enforcement
agents from the Pennsylvania Attorney General's Office. Upon seeing Pinkowsky
with the police, [Kozak] drove his vehicle out of the parking lot over acurb and down
an embankment onto Route 315 where he proceeded north until he was
apprehended. During the pursuit, [Kozak] was seen throwing yellow baggies out of
the driver's side window. Two baggies were recovered and were determined to be
crack cocaine.
(Doc. 12-1 at 41-42, Trial Court's 1925(a) Opinion.)
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Kozak was convicted by ajury sitting in the Court of Common Pleas of Luzerne County of
two counts of possession of acontrolled substance, possession with intent to deliver acontrolled
substance, two counts of delivery of acontrolled substance, and one count of fleeing or attempting
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to elude an officer. (Doc. 12, Response, at 2.) According to the Response, Kozak's first trial ended
with his conviction of two counts of possession of acontrolled substance, and ahung jury on the
remaining counts. (lit.) Kozak filed an appeal to the Pennsylvania Superior Court in which he
argued that double jeopardy principles prohibited him from being retried on the remaining charges,
but the Superior Court rejected his claims. (lit. at 2-3.) Accordingly, following his second trial,
Kozak was convicted of the remaining charges. (lit. at 3.) On December 11, 2008, he was
sentenced to a term of incarceration of three (3) to seven (7) years. (lit. at 3.)
Kozak filed adirect appeal from his judgment of sentence with the Pennsylvania Superior
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Court in which he argued that the Commonwealth had engaged in entrapment and the verdict was
against the weight of the evidence.
(kl at 3; Doc. 12-1 at 41-46, Trial Court's 1925(a) Opinion.)
On October 5, 2009, the Pennsylvania Superior Court rejected Kozak's claims and affirmed his
judgment of sentence. (Doc. 12 at 3; See 137 MDA 2009 1.) Kozak then filed a Petition for
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Allowance of Appeal with the Pennsylvania Supreme Court, which was denied by Order dated
September 8,2010. (See 786 MAL 2009. 2)
B.
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PCRA Proceedings
On December 16,2010, Kozak filed apetition under Pennsylvania's Post-Conviction Relief
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Act ("PCRAil), 42 Pa. Cons. Stat. Ann. § 9541 et §§g. (Commonwealth v. Kozak ("Trial Ct.
Dockets"}.3) The PCRA Petition raises claims of ineffective assistance of counsel, prosecutorial
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misconduct, and insufficiency of the evidence. (Doc. 1, Petition, at 7-11; Doc. 12 at 3; Doc. 12-1
at 53-56, Commonwealth's App. Sr.) For reasons that are not clear from the record, on July 20,
2011, the PCRA Court dismissed the PCRA Petition, but then vacated its Order on August 5,2011.
(Doc. 12 at 3; Trial Ct. Dockets4.) Even though the PCRA Court vacated its Order denying the
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ISee Pennsylvania Appellate Courts Docket Sheets, available through Pennsylvania's
Uni'fied Judicial System Webportal, http://ujsportal.pacourts.us/docketsheets/appeilate.aspx
2See supra n.1.
3See Pennsylvania Common Pleas Courts Docket Sheets, Commonwealth v. Kozak,
CP-40-CR-0003063-2006; CP-40-CR-0003064-2006; and CP-40-CR-0002559-2006, available
through Pennsylvania's Unified Judicial System Webportal,
http://ujsportal.pacourts.us/DocketSheets/CP.aspx
4See supra n.3.
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PCRA Petition such that the PCRA Petition remained pending in that Court. on August 26, 2011,
Kozak filed a Notice of Appeal from the July 20, 2011 Order denying the Petition to the
Pennsylvania Superior Court. (Doc. 12 at 3; 1633 MDA 2011. 5) In aJudgment Order filed on April
11, 2012, the Pennsylvania Superior Court quashed Kozak's appeal based upon the fact that the
Order from which he appealed had been vacated, and there had been no subsequent trial court
order disposing of Kozak's PCRA Petition, and thus there was no 'final order from which Kozak
could appeal. (See Doc. 12-1 at 1-2, 4/11/12 Pa. Super. Ct. Judgment Order.) In afootnote, the
Superior Court noted that the trial judge who had entered the July 20 and August 5 Orders no
longer was on the Luzerne County bench and therefore stated that "[t]he administrative judge of
the Court of Common Pleas of Luzerne County, Criminal Division, should timely reassign this case
so an order properly disposing of Kozak's petition can be entered." (kh at 2 n.3.)
Areview of the Trial Court Dockets reveals that, as of this date, the PCRA Petition remains
pending before the Court of Common Pleas of Luzerne County. (Trial Ct. Dockets. 6) On May 1,
2012, aSupplementary PCRA Petition was filed by Kozak. (kh) By Order entered by Judge Tina
Polachek Gartley on July 3, 2012, Attorney Allyson Kacmarski was appointed to represent Kozak
in his PCRA proceedings. (kh) The docket also rellects that, on July 13,2012, which was after
the filing of the instant Petition on June 18, 2012, Kozak filed aSecond Motion for Post-Conviction
Relief. (kh) A notation on the docket states that the Motion was forwarded to Judge William H.
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5See supra n.1.
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6See supra n.3.
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Amesbury. (Id.)
II.
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Discussion
A.
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Exhaustion Requirement
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Ahabeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for astate
prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475,
498-499 (1973). "[I]t is not the province of a federal habeas court to reexarnine state-court
determinations on state-law questions," Estelle v. McGuire. 502 U.S. 62, 67-68 (1991). Rather,
federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in
violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle.
502 U.S. at 67-8; see also Pulley v. Harris. 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117
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F.3d 104 (3d Cir. 1997).
Before a federal court can review the merits of a state prisoner's habeas petition, it must
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deterrnine whether the petitioner has met the requirements of exhaustion. Relief cannot be granted
unless all available state remedies have been exhausted, or there is an absence of available state
corrective process, or circumstances exist that render such process ineffective to protect the rights
of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on
principles of comity in order to ensure that state courts have the initial opportunity to review federal
constitutional challenges to state convictions. See Werts v. Vaughn. 228 F.3d 178, 192 (3d Cir.
2000).
To satisfy the exhaustion requirement, afederal habeas petitioner must have presented the
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facts and legal theory associated with each claim through "one complete round of the State's
established appellate review process."t O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); see
also Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). The exhaustion requirement is satisfied
if apetitioner's claims are either presented to the state courts directly on appeal from the judgment
of sentence, orthrough acollateral proceeding, such as aPCRA petition. Swangerv. Zimmerman,
750 F.2d 291,295 (3d Cir. 1984). It is not necessary for apetitioner seeking federal habeas relief
to present his federal claims to state courts both on direct appeal and in a PCRA proceeding. lit
However, apetitioner is not deemed to have exhausted the remedies available to him if he has a
right under the state law to raise, by any available procedure, the question presented. 28 U.S.C.
§ 2254(c); Castille v. Peoples, 489 U.S. 346, 350 (1989). The petitioner bears the burden of
demonstrating that he has satisfied the exhaustion requirement. Lines v. Larkins! 208 F.3d 153,
159 (3d Cir. 2000) (citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d. Cir. 1997)).
In the instant Petition, Kozak raises the following grounds:
1) Entrapment;
2) The verdict was against the weight of the evidence;
3) Double Jeopardy;
4) Police & Prosecution Misconduct;
7Pursuant to Pennsylvania Supreme Court Order 218, effective May 9, 2000, issues
presented to the Pennsylvania Superior Court are considered exhausted for the purpose of
federal habeas corpus relief under Section 2254. See In re: Exhaustion of State Remedies in
Criminal and Post-Conviction Relief Cases. No. 218, Judicial Administration Docket No. 1(May
5, 2000) (per curiam). As such, petitioners are not required to seek review from the
Pennsylvania Supreme Court in order to give the Pennsylvania courts a "full opportunity to
resolve any constitutional claims." Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004).
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5) Conspiracy of the CI [Confidential Informant];
6) Deliberate Delay, Due process, ineffective assistance of counsel
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(Doc. 1at5-11.)
Kozak asserts that he exhausted his 'first issue in his direct appeal, and that while his
second issue was raised on direct appeal, it was deemed waived because his attorney did not
preserve it properly. (kl at 5,7.) However, Kozak indicates that he has raised his second isue in
his PCRA Petition. (kl at 7.) With respect to his third issue concerning double jeopardy, Kozak
states, 'The P.D.'s Office would not authorize proceedings to the Supreme Court." (kl at 8.)
However, in the Response to the Petition, Respondents indicate that, in his appeal to the
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Pennsylvania Superior Court following his first trial, Kozak argued that double jeopardy principles
prohibited him from being retried on the charges for which there had been a hung jury. (See Doc.
12 at 2-3.) Thus, it appears that Kozak's third issue also was exhausted in direct appeal
proceedings, and to the extent it has not been exhausted, Kozak states that it has been raised in
his PCRA Petition. (See Doc. 1at 8.) With respect to the remaining issues raised by Kozak in
the instant Petition, he indicates that he has raised them in his PCRA Petition. (kl at 10-11.)
Thus, the only issue that clearly has been exhausted is Kozak's first issue. The remaining issues
have been raised in Kozak's pending PCRA Petition, and therefore must be reviewed by the state
court before this Court may review them in the context of a federal habeas petition.
B.
Exceptions to the Exhaustion Requirement
Unless an exception applies, we must allow the state courts to dispose of unexhausted
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claims before we consider them in tije context of federal habeas review. Exceptions to the
exhaustion requirement are made when: (1) the state corrective process is so deficient as to
render any effort to obtain relief futile, 28 U.S.C. § 2254(b); (2) acts of state officials have, in effect
made state remedies unavailable to the petitioner, Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir.
1987); or (3) "inordinate delay" in state proceedings has rendered state remedies ineffective. Story
v. Kindt, 26 F.3d 402,405 (3d Cir. 1994); Schandelmeier v. Cunningham, 819 F.2d 52,55 (3d Cir.
1986). In his Reply, Kozak may be arguing that exhaustion of state court remedies should be
excused in this case based upon adelay in his PCRA proceedings such that we would review the
instant Petition on the merits. (See Doc. 13.)
In his Reply (Docs. 13, 14)8, Kozak argues that his arrest and conviction were unjust and
that "wasting anymore time in the state court would be a continued injustice, at very best, my
sentence would most likely be served." (Id.) He also suggests that the trial court is a "corrupt
organization" and attributes the PCRA judge's action in denying his petition to "pressure from within
the Luzerne County Court system." (kl) He states that, after the Pennsylvania Superior Court
quashed his appeal, he inquired about the status of his PCRA Petition and never received an
answer and was unsuccessful in 'finding out which judge has been assigned to his case. (kl)
Kozak also suggests that "[t]he lower court is preying on [his] inability to submit aproperly formed
argument" and asserts that both of his trials were unfair. (Doc. 14 at 1.) He also argues that the
8Kozak has filed two documents that could be construed as his Reply (Docs. 13, 14). In
light of his Q[Q se status, we shall construe both documents as his Reply.
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state court's decision was an unreasonable determination based upon the facts and that it was
contrary to state law. (.lit at 1.)
We construe Kozak's arguments as invoking the first and third exceptions to the exhaustion
requirement concerning futility of the state corrective process and "inordinate delay." We discuss
these arguments in turn.
Excusing exhaustion on the basis of futility is appropriate only where a petitioner has no
viable opportunity to obtain redress in the state court, or if the corrective process is so deficient as
to render futile any effort to obtain relief. Duckworth v. Serrano, 454 U.S. 1(1981). In the instant
case, where Kozak has a timely PCRA Petition pending in state court, a new judge has been
assigned to dispose of that petition, and counsel has been appointed to represent Kozak in those
proceedings, Kozak cannot meet the stringent requirements to obtain premature federal review of
his claim under the futility exception.
With respect to the "inordinate delay" exception, we are guided by the following controlling
authority. In Wojtczak v. Fulcomer, 800 F.2d 353 (3d Cir. 1986), the United States Court of
Appeals for the Third Circuit found the passage of thirty-three (33) months between the filing of the
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petitioner's post-conviction relief petition and his filing of a habeas petition in federal court to be
"inordinate" so as to excuse the exhaustion requirement and to require the district court to entertain
the habeas petition on the merits. Subsequently, in Cristin v. Brennan, the Third Circuit observed
that the thirty-three (33) month delay in Wojtczak "remains the shortest delay held to render state
collateral proceedings ineffective for purposes of the exhaustion requirement." 281 F.3d 404, 411
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(3d Cir. 2002). In Cristin, the Third Circuit found the twenty-seven (27) month delay between the
filing of aPCRA petition and afederal habeas petition to be insufficient to constitute an "inordinate"
delay. kL. In reaching that conclusion, the Cristin Court compared the progress of litigation in
Wojtczak, observing that "only marginal progress had been made during the thirty-three month
pendency of the PCRA petition", with the progress in Cristin, where oral argument had occurred
and a hearing had been scheduled, but subsequently was waived. kL. The Cristin Court then
observed that, "While we much prefer that the PCRA process advance more expeditiously, we do
not find its delay to have rendered relief for Cristin 'effectively unavailable.'" kL.
Based on the foregoing, and for the reasons that follow, we cannot characterize the delay
that has occurred in the instant case as "inordinate." Where the twenty-seven (27) month delay
that occurred in Cristin was found by the Third Circuit to be insufficient to excuse exhaustion, we
find that the significantly shorter eighteen (18) month period that elapsed between Kozak's filing
of his PCRA Petition on December 16, 2010, and his filing of the instant Petition on June 18, 2012,
does not qualify as "inordinate." Moreover, in considering the overall progress of the PCRA
proceedings as the Third Circuit did in Cristin, we note that, while the PCRA Court apparently made
a procedural error in denying the PCRA Petition on July 20, 2011, it corrected the error within a
relatively short time period when on August 5,2011, it vacated its Order. The delay that occurred
between August 26,2011, the date Kozak filed an appeal, and April 11 ,2012, the date the Superior
Court quashed the appeal, only can be attributed to Kozak, who chose to file an appeal from an
Order that had been vacated. Further, it is signi'ficant that, following the remittal of the record from
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the Superior Court to Luzerne County, on July 3, 2012, counsel was appointed for Kozak in his
PCRA proceedings, and that Kozak's Second PCRA Petition, which he filed on July 13, 2012, was
forwarded on that date to Judge Amesbury, who now is the Judge assigned to the case. Where
counsel has been appointed, and anew Judge has been assigned in accordance with the Superior
Court's directive in its April 11, 2012 Order, this Court anticipates that there will be no further
"delay" in the state court's review of the issues presented in Kozak's PCRA Petition. We therefore
cannot classify the delay that has occurred as "inordinate."
Further, even if we found an inordinate delay in Kozak's PCRA proceedings, that finding
alone would not justify excusing exhaustion. Instead, the burden would shift to Respondents to
explain why exhaustion still should be required. See Story, 256 F.3d at 405. Typically, this burden
is satisfied where there is evidence that the once-delayed or dormant state court proceedings have
resumed and are again moving forward. See, ~ Cristin, 281 F.3d at 411 (stating "our cases
have instructed district courts to stay their consideration of habeas petitions when previously stalled
state proceedings resume"); Walker v. Vaughn, 53 F.3d 609, 615 (3d Cir. 1995) (liAs a matter of
general practice, we assume that a district court which has excused exhaustion but has not yet
embarked upon proceedings of substance will stay its hand once there is reliable evidence that the
state action has been reactivated."). In the instant case, Respondents have demonstrated that
activity has not been halted in Kozak's PCRA proceedings inasmuch as counsel has been
appointed and a new Judge has been assigned. As such, Respondents have met their burden of
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showing that exhaustion still should be required, and we therefore may not excuse exhaustion so
as to review the instant Petition.
C.
Mixed Petitions
Where a petition is "mixed"- i.e. it contains both exhausted and unexhausted claims- and
it is apparent that the petitioner is able to fully exhaust his state remedies on claims presented in
his mixed petition before the one-year statute of limitations for 'filing a federal habeas petition
expires, the dismissal of the mixed petition without prejudice to allow the petitioner to return to state
court and totally exhaust his claims is appropriate. Rose v. Lundy, 455 U.S. 509, 510 (1982). In
the event that a petitioner may not have sufficient time remaining on the statute of limitations, it
may be appropriate to stay the proceedings pending exhaustion of state court remedies rather than
to dismiss it. See Crews v. Horn, 360 F.3d 146 (3d Cir. 2004). To determine the appropriate
course of action here, we shall consider the time remaining on the one-year statute of limitations
in this case.
Under 28 U.S.C. § 2244(d)(1), astate defendant has one year to file a § 2254 petition. For
our purposes, that period starts to run from the date the conviction becomes final, defined in
§ 2244(d)(1)(A) as "the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review." The time for seeking review includes the
ninety (90) day period during which a petitioner may file a petition for writ of certiorari with the
United States supreme Court. See U.S. Supreme Court Rule 13; Kapral v. United States, 166 F.3d
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565, 571-71 (3d Cir. 1999). The limitations period also is tolled for the "time during which a
properly filed application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The Third Circuit has clarified
that "[b]ecause we believe the term 'pending' must include the time between acourt's ruling and
the timely filing of an appeal, we also believe 'pending' must include the time during which an
appeal could be filed even if the appeal is not eventually filed." Swartz v. Meyers, 204 F.3d 417,
424 (3d Cir. 2000).
In the instant case, we can dismiss the instant petition rather than stay it because, where
Kozak's Judgment of Sentence became 'final on December 7,2010, which was ninety (90) days
after the Pennsylvania Supreme Court denied his Petition for Allowance of Appeal on September
8, 2010, and Kozak filed his PCRA Petition on December 16, 2010, only nine (9) days have
elapsed on the one (1) year statute of limitations period to file a § 2254 petition in federal court.
Moreover, because Kozak's PCRA Petition, filed on December 16, 2010, was timely, the limitations
period to file a federal habeas petition has been tolled since that date and will not begin running
again until the conclusion of PCRA proceedings in state court, including the disposition of any
appeals, or the expiration of the time period to file any appeals. See 28 U.S.C. § 2244(d)(2);
Swartz, supra, 204 F.3d at 424. Consequently, Kozak will have sufficient time to re-file afederal
habeas petition following his exhaustion of state court remedies.
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III.
Conclusion
For the foregoing reasons, we shall dismiss Kozak's Petition without prejudice to his ability
to re-file it after he exhausts his state court remedies. An appropriate Order will issue on today's
date.
Robert D. Mariani
United States District Judge
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