NIEMEYER v. CAMERON et al

Filing 29

MEMORANDUM ORDER adopting 24 Report and Recommendation of Magistrate Judge Baxter as the Opinion of the Court, as supplemented herein. The 1 Petition for Writ of Habeas Corpus is denied and a certificate of appealability is denied. The Clerk shall mark this case CLOSED. Signed by Judge Maurice B. Cohill on 3/7/2012. (sjs)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUSSELL NIEMEYER,
Petitioner,

v.
KENNETH CAMERON, et al.,
Respondents.

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Civil Action No. 10-09 Erie
Senior District Judge Maurice B. Cohill
Magistrate Judge Susan Paradise Baxter

MEMORANDUM ORDER
This habeas action filed by Petitioner, Russell Niemeyer, pursuant to 28 U.S.c. § 2254
was referred to United States Magistrate Judge Susan Paradise Baxter for a report and
recommendation in accordance with 28 U.S.c. § 636(b)(I) and Rule 72 of the Local Rules for
Magistrate Judges. On January 23,2012, the Magistrate Judge issued a Report and
Recommendation ("R&R") [ECF No. 24] in which she recommended that the petition be denied
with respect to each of Petitioner's claims and that a certificate of appealability ("COA") be
denied. Petitioner, through his counsel, has filed Objections [ECF No. 27] to the R&R.
Where, as here, Objections have been filed, the Court is required to make a de novo
determination as to those portions of the R&R to which objections were made. See 28 U.S.c.

§ 636(b)(I). Accordingly, the Court has carefully examined de novo all arguments raised by
Petitioner in his Objections and the Court agrees with the Magistrate Judge that he is not entitled
to habeas relief or a COA on any of his claims. Petitioner's Objections are overruled and the
Court approves and adopts the R&R, as supplemented herein. The Court writes only to address
his contentions that: (I) he can demonstrate "cause" sufficient to overcome his procedural
default of Claims I through IV (an argument he makes for the first time in his Objections); and,
(2) the R&R contains "an important factual error," [ECF No. 27 at I n.l].
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I.
Petitioner raised seven claims in his petition for a writ of habeas corpus. The following
four claims are at issue here:
Claim I

The trial court violated Petitioner's Fourteenth Amendment right to
due process of law and based its ruling upon an unreasonable
determination of the facts when it permitted carte blanche
admission of evidence of uncharged prior bad acts of his without
either assessing the reliability of the claims against him or
balancing their highly prejudicial impact;

Claim II

The trial court violated Petitioner's constitutional right to a fair trial
when it improperly prohibited him from testifying about Shawn
Kent's statement to him that Kent had "taken" his family;

Claim III

The trial court denied Petitioner's Fourteenth Amendment right to
due process of law and based its ruling upon an unreasonable
determination of the facts when it did not permit him to call Roger
Niemeyer to testify in order to corroborate the prior consistent
testimony of Ms. Koman after the Commonwealth challenged it as
a recent fabrication; and,

Claim IV

The trial court violated Petitioner's constitutional right to due
process in not permitting him to cross examine his ex-wife, Lori
Niemeyer, as to her admission that she considered herself a
"psycho bitch from hell."

In their Answer, Respondents contended that when Petitioner challenged the trial court's
alleged errors at issue in Claims I through IV in his direct appeal, he raised only errors of state
law. He did not, as he does here, raise violations of the Due Process Clause or any other
provision of the federal constitution. Accordingly, Respondents asserted, Petitioner failed to
exhaust the federal constitutional claims that he now raises before this Court in Claim I through
Claim IV, and as a result has procedurally defaulted them for the purposes of federal habeas
review.
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The Magistrate Judge agreed with Respondents. She recommended that Claim I through
Claim IV be denied as procedurally defaulted. I
A petitioner whose constitutional claims are procedurally defaulted can overcome the
default, thereby allowing federal habeas court review, ifhe can demonstrate "cause" for the
default, i.e., that some objective factor "external to the defense" impeded efforts to comply with
the state's procedural rule, and "actual prejudice." Coleman v. Thompson, 501 U.S. 722, 750
(1991). See also Murray v. Carrier, 477 U.S. 478, 488, 494 (1986). In his Objections, Petitioner
argues for the first time that he can establish "cause" to overcome his default of Claim I through
Claim IV. Specifically, he faults his former attorneys, David G. Ridge, Esquire, and Timothy 1.
George, Esquire, who represented him in his direct appeal, for failing to argue that the alleged
trial court errors at issue implicated his federal constitutional rights.
Petitioner's argument is rejected for two reasons. First, an appellate attorney's decision
not to raise a certain claim generally is not the type of conduct that satisfies the "cause"
requirement. As the Court of Appeals has stated:
Examples of "cause" that are "external to the defense" include interference by the
state with the conduct of a defense or the previous unavailability of the factual or
legal basis ofa claim. Generally, "cause" cannot be based on the mere
inadvertence of the petitioner or petitioner's counsel to take an appeal. "{TJhe
mere fact that counsel failed to recognize the factual or legal basis for a claim, or
failed to raise the claim despite recognizing it, does not constitute cause for
procedural default." [Murray v. Carrier, 477 U.S. at 486]. Indeed, in Coleman v.
Thompson, 501 U.S. 722 [] (1991), the Court addressed ... the effect ofa
The Magistrate Judge noted that, in presenting to the Superior Court on direct appeal his contention that the
trial court had erred when it did not permit the defense to call Roger Niemeyer (Claim III), Petitioner did cite to one
federal case: Chambers v. Mississippi, 410 U.S. 284 (1973). However, as Respondents explained in their Answer,
"[P]etitioner spen[t] no time developing the argument independent of the state evidentiary rule claim." Therefore,
they argued, Claim III "should be considered procedurally defaulted." [ECF No. 20 at 10-11]. As set forth above,
the Magistrate Judge agreed with Respondents and recommended that Claim III be denied as procedurally defaulted.
However, the Magistrate Judge also recommended in the alternative that Claim III be denied on the merits because
any constitutional error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (in order to grant
habeas relief a federal habeas court must find that a trial error had a "substantial and injurious effect or influence in
determining the jury's verdict. ").

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litigant's inadvertent failure to take a timely appeal in a state collateral
proceeding. The Court, applying Murray v. Carrier, concluded that an "ignorant
or inadvertent procedural default" does not satisfy the cause element of cause and
prejudice. Coleman, 501 U.S. at 752[.]
Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002) (emphasis added). Even negligence on the
part of counsel does not qualify as "cause" "because the attorney is the prisoner's agent, and
under 'well-settled principles of agency law,' the principal bears the risk of negligent conduct on
the part of his agent." Maples v. Thomas, -

U.S.

, 132 S.Ct. 912, 922 (2012) (citing

Coleman, 501 U.S. at 753-54).
Second, although Petitioner contends that Ridge and George's failure went beyond
negligence and amounted to misconduct so severe as to have violated his Fourteenth Amendment
right to effective representation on direct appeal,2 he may not rely upon their alleged
ineffectiveness to establish "cause." That is because before a petitioner can rely upon ineffective
assistance of direct appeal counsel as "cause," he must first have exhausted that claim of
ineffective assistance with the state court. The Supreme Court explained:
[W]e think: that the exhaustion doctrine, which is "principally designed to protect
the state courts' role in the enforcement of federal law and prevent disruption of
state judicial proceedings," Rose v. Lundy, 455 U.S. 509,518 (1982), generally
requires that a claim ofineffective assistance be presented to the state courts as
an independent claim before it may be used to establish cause for a procedural
default .... [I]f a petitioner could raise his ineffective assistance claim for the first
time on federal habeas in order to show cause for a procedural default, the federal
habeas court would find itself in the anomalous position of adjudicating an
unexhausted constitutional claim for which state court review might still be
available. The principle of comity that underlies the exhaustion doctrine would
be ill served by a rule that allowed a federal district court "to upset a state court
conviction without an opportunity to the state courts to correct a constitutional
violation," Darr v. Burford, 339 U.S. 200,204 (1950), and that holds true whether
an ineffective assistance claim is asserted as cause for a procedural default or
denominated as an independent ground for habeas relief.
The Supreme Court has recognized that attorney error which amounts to constitutionally ineffective
assistance can constitute "cause."
~,Coleman, 501 U.S. at 753-54; Murray, 477 U.S. at 488-89.

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Murray, 477 U.S. at 488-89 (emphasis added, parallel citations omitted).
In Pennsylvania, inmates such as Petitioner can raise ineffective assistance of direct
appeal counsel claims in a motion for collateral relief pursuant to Pennsylvania's Post Conviction
Relief Act ("PCRA"). 42 Pa.C.S. § 9543(2)(i)-(ii). Petitioner filed a PCRA motion, but he did
not contend in it that Ridge and George were ineffective for failing to frame the alleged trial
court errors at issue in Claim I through Claim IV as violations of his federal constitutional rights.
Because he did not, he cannot rely on their alleged ineffectiveness to establish "cause" to
overcome his default of those claims. Murray, 477 U.S. at 488-89.
The only other statement that Petitioner makes in his Objections that requires comment is
his contention that the R&R "contains an important factual error. On page 3 of the Report, the
Magistrate discusses an alleged conversation on August 15, 2003. Petitioner avers that this
conversation did not occur and that he was at work at the time." [ECF No. 27 at 1 n.l]. Contrary
to Petitioner's assertion, there is no "factual error." In that part of the R&R identified by
Petitioner, the Magistrate Judge quoted from the trial court's Pa.R.A.P. 1925(a) Opinion, in
which it had summarized the evidence introduced at his trial. That evidence included testimony
from the victim and her mother that, on and around August 15, 2003, the mother and Petitioner
had argued during a telephone conversation. (3/16/05 Trial Tr. at 57, 76-78, 122-27). Petitioner
claims that the August 15,2003, telephone conversation did not occur, but the jury was free to
credit the testimony of the victim and her mother.
Based upon all of the forgoing, the Court agrees with the Magistrate Judge that that
Claim I through Claim IV are procedurally defaulted. The Court also finds that Petitioner's
contention that the R&R contains an "important factual error" is without merit.
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II.

Accordingly, this L liti:ay of

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2012, it is hereby ORDERED that

following a de novo review of the pleadings and record in this case, the Report and
Recommendation by Magistrate Judge Baxter is adopted as the Opinion of this Court, as
supplemented herein. The petition is denied and a COA is denied. The Clerk shall mark this
case CLOSED.

~6.CoihLL¥

Maurice B. Cohill
Senior United States District Court Judge
Western District of Pennsylvania

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