CAROL SANDRA MOORE WELLS, Chief Magistrate Judge.
Presently before this court is a Petition for a Writ of Habeas Corpus filed by Benjamin Lee Santiago ("Petitioner"), pro se, pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner serving an aggregate sentence of 20 to 40 years at the State Correctional Institution Rockview. He seeks habeas relief based on claims that counsel rendered ineffective assistance and a Brady/Giglio violation. The Honorable Stewart Dalzell referred this matter to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons set forth below, it is recommended that the habeas petition be DISMISSED with prejudice, because Petitioner's claims are procedurally defaulted.
The Court of Common Pleas of Lancaster County, Pennsylvania summarized the facts leading to Petitioner's arrest and conviction as follows:
Commonwealth v. Santiago, No. 4013 CR 2006, slip op. at 1-3 (Ct. Com. Pl. Lancaster County. Sept. 28, 2007); Commonwealth Exhibit ("Com. Ex.") L. A jury convicted Petitioner of two counts of aggravated assault, criminal conspiracy to commit aggravated assault, firearms not to be carried without a license and three counts of recklessly endangering another person ("REAP"). Id. at 5. Petitioner was sentenced to an aggregate term of twenty to forty years of incarceration plus a fine, costs and restitution. Com. Ex. D at 27-29.
On June 22, 2007, Petitioner filed a post-sentence motion to modify and reduce his sentence. Com. Ex. E at [1]-[2]. The trial court denied the motion on July 3, 2007. Com. Ex. F at [1]. On July 24, 2007, Petitioner filed an appeal to the Pennsylvania Superior Court, at which point his counsel withdrew. Com. Ex. G at [1]; Com. Ex. H at [1]-[2]. New counsel was retained and filed a Concise Statement of Matters Raised on Appeal to the Superior Court on August 14, 2007.
On April 16, 2009, Petitioner, via counsel, sought relief under the state Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-46.
Petitioner filed the instant habeas petition, on December 5, 2012,
A habeas petitioner must exhaust state court remedies before obtaining habeas relief. 28 U.S.C. § 2254(b)(1)(A). The traditional way to exhaust state court remedies in Pennsylvania was to fairly present a claim to the trial court, the Pennsylvania Superior Court and the Pennsylvania Supreme Court. See Evans v. Court of Common Pleas, Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992). However, in light of a May 9, 2000 order of the Pennsylvania Supreme Court, it is no longer necessary for Pennsylvania inmates to seek allowance of appeal from the Pennsylvania Supreme Court in order to exhaust state remedies. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
If a habeas petitioner has presented his claim to the state courts, but the state courts have declined to review the claim on its merits because the petitioner failed to comply with a state rule of procedure when presenting the claim, the claim is procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 262-63 (1989). When a state court has declined to review a claim based on procedural default and the claim is not later addressed on the merits by a higher court, the habeas court must presume that the higher state court's decision rests on the procedural default identified by the lower state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Finally, when a habeas petitioner has failed to exhaust a claim and it is clear that the state courts would not consider the claim because of a state procedural rule, the claim is procedurally defaulted.
Procedurally defaulted claims cannot be reviewed unless "the [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In order to demonstrate cause, the petitioner must show that "some objective factor external to the defense impeded [the petitioner's] efforts to comply with the state's procedural rule." Id. at 753 (citation omitted). Examples of suitable cause include: (1) a showing that the factual or legal basis for a claim was not reasonably available; (2) a showing that some interference by state officials made compliance with the state procedural rule impracticable; (3) attorney error that constitutes ineffective assistance of counsel. Id. at 753-54. Recently, the Supreme Court held that a petitioner can demonstrate cause to excuse his procedural default of an ineffective assistance of trial counsel claim if: (1) his state requires that claims of trial counsel ineffectiveness be deferred to state collateral proceedings, and (2) he and shows that post-conviction counsel was ineffective at the initial post-conviction proceedings for failing to raise the defaulted trial counsel ineffectiveness claim. Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012).
The fundamental miscarriage of justice exception is limited to cases of "actual innocence." Schlup v. Delo, 513 U.S. 298, 321-22 (1995). In order to demonstrate "actual innocence," the petitioner must present new, reliable evidence of his innocence that was not presented at trial. Id. at 316-17, 324. The court must consider the new evidence of innocence, along with the entire record, even that which was excluded or unavailable at trial. Id. at 327-28. Thereafter, the petitioner's defaulted claims can be reviewed only if the court is satisfied "that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt," in light of the new facts. Id. at 327.
Petitioner asserts that trial counsel was ineffective for failing to request an instruction on the voluntariness of his statement. Pet. at 9. The Commonwealth contends that Petitioner's claim is unexhausted and procedurally defaulted. See Resp. at 7, 9-11.
Under federal exhaustion requirements, before presenting a habeas claim in this court, a petitioner must first present the same factual predicate and legal theory in state courts. Evans, 959 F.2d at 1230. Although Petitioner previously raised several ineffective assistance of counsel claims to the PCRA Court and the Pennsylvania Superior Court, he has not previously asserted that trial counsel was ineffective for failing to request a jury instruction concerning the voluntariness of his statement. See supra nn.2, 4 & 6. None of the claims Petitioner raised in the state courts are substantially equivalent to this particular federal ineffective assistance of counsel claim. Furthermore, Petitioner's failure to properly present this claim to the PCRA Court and the Pennsylvania Superior Court for review renders the claim unexhausted. See Lambert, 387 F.3d at 233-34.
Therefore, Petitioner cannot file a timely, new PCRA petition to exhaust this claim because the statute of limitations expired on June 1, 2009.
Petitioner asserts in claim two that defendant Smith's failure to disclose honestly details of his plea agreement when he was cross-examined about any promises made to him in exchange for his testimony constitutes a Brady/Giglio violation.
In his PCRA appeal, Petitioner raised a claim regarding Smith's inconsistent statements. See supra n.6. However, Petitioner characterized that claim as an ineffective assistance of counsel claim, not as a Brady/Giglio violation. A petitioner must present the same factual predicate and legal theory in the state court proceedings in order to properly exhaust that claim for habeas review on the merits. See Evans, 959 F.2d at 1231. Here, the Petitioner relies on a legal theory and constitutional provision that he has not previously presented to state courts for review; hence, claim two is unexhausted. See Lambert, 387 F.3d at 233-34. Petitioner cannot file a valid, new PCRA petition to exhaust this claim, because the statute of limitations expired on June 1, 2009. See supra n.8. Thus, Petitioner's unexhausted claim two is also procedurally defaulted. See Keller, 251 F.3d at 415.
Petitioner has not presented any cause and prejudice to excuse the default, nor has he presented any new, reliable evidence of actual innocence. Hence, this court must dismiss claim two on procedural grounds. See Coleman, 501 U.S. at 750; Schlup, 513 U.S. at 316-17, 324.
Petitioner's claims are procedurally defaulted. Reasonable jurists would not debate the appropriateness of the court's procedural disposition of his claims, therefore, a certificate of appealability should not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, I make the following:
AND NOW, this 19th day of November, 2014, for reasons detailed in the preceding report, it is hereby RECOMMENDED that Petitioner's procedurally defaulted claims be DISMISSED, without an evidentiary hearing. Petitioner has neither demonstrated that any reasonable jurist could find this court's procedural ruling debatable, nor shown denial of any federal constitutional right. Hence, there is no probable cause to issue a certificate of appealability.
Petitioner may file objections to this Report and Recommendation within fourteen (14) days of being served a copy of it. See Local R.Civ.P.72.1(IV). Failure to file objections may constitute a waiver of any appellate rights.
It be so
Com. Ex. M at 2-3. The court notes that Petitioner ultimately abandoned issue two and presented an amended version of issue one in his appellate brief which states: "Whether the trial court committed reversible error in issuing an inadequate or inaccurate jury instruction on consciousness of guilt as it related to the intercepted prison telephone calls?" Com. Ex. K at 4.
Com. Ex. N at 1-2.
Com. Ex. V at 1-2.
