R. BARCLAY SURRICK, District Judge.
Presently before the Court is Petitioner Treyvaughn Sheridan's Petition for Writ of Habeas Corpus (ECF No. 1), Magistrate Judge M. Faith Angell's Report and Recommendation, recommending that the Petition be denied and dismissed without an evidentiary hearing (ECF No. 19) and Petitioner's Objections to the Report and Recommendation (ECF No. 24). For the following reasons, we will overrule Petitioner's Objections, approve and adopt the Report and Recommendation and deny and dismiss the Petition for Writ of Habeas Corpus without an evidentiary hearing.
On March 6, 2007, after a full colloquy, Petitioner entered a negotiated plea of guilty to (i) possession with intent to deliver a controlled substance and (ii) criminal conspiracy before the Honorable Glenn B. Bronson of the Court of Common Pleas of Philadelphia County. (Mar. 6 Sent'g Tr., Mar. 6, 2007.)
Plaintiff failed to appear for his scheduled surrender on March 26, 2007. On March 28, 2007, a hearing was held to determine whether Petitioner's failure to appear was willful. (Mar. 28 Sent'g Tr., Mar. 28, 2007.) Robert Spadaccini, a Detective with the District Attorney's Office, testified that he attempted to locate Petitioner by performing a custody check. Detective Spadaccini used a preliminary arraignment system to see if Petitioner had been arrested, he searched the Internet, he checked the Court's mainframe, he checked hospitals, and he attempted to go to Petitioner's last known address. (Id. at 5-10.) Detective Spadaccini determined that Petitioner had been arrested on March 16, 2007 for unauthorized use of a motor vehicle and that Petitioner had failed to appear for a preliminary hearing on March 21, 2007 related to that arrest. He also determined that Petitioner had failed to appear on March 23, 2007 for sentencing in a November, 2006 case involving the sale of heroin. (Id. at 7-8.)
After hearing testimony, Judge Bronson determined that Petitioner had willfully absented himself from the required surrender date. He then vacated the previously imposed sentence and imposed a sentence on Petitioner of ten to twenty years state imprisonment in absentia. (Id. at 10-11.) Petitioner's counsel filed a motion to reconsider the sentence. This motion was denied because Petitioner was still a fugitive. (Dkt., Commonwealth of Pennsylvania v. Sheridan, No. 1301418-2006 (Ct. C.P. filed Oct. 27, 2006).) Petitioner continued to be a fugitive and as a result no direct appeal was filed.
On April 17, 2007, Petitioner was arrested. (Id.) On May 29, 2007, the court lifted the outstanding bench warrant and imposed the ten-to-twenty-year-imprisonment sentence on Petitioner. (Id.)
On January 14, 2008, counsel filed a Petition under the Post-Conviction Relief Act ("PCRA"), alleging that the sentence of ten to twenty years imprisonment was an illegal sentence for contempt of court. (PCRA Pet., Jan. 14, 2008.) Petitioner argued that "[w]hen the Petitioner failed to turn himself [in] on a pre-determined date, the Court re-sentenced the Petitioner to 10 to 20 years incarceration without a hearing and in violation of the plea agreement that the trial court accepted"; and that "[i]f the court wanted to impose an additional sentence for failing to appear, it should have held a contempt hearing and imposed [] another sentence for a clearly separate offense." (Id.) On April 8, 2008, the court sent notice of its intent to dismiss the petition without a hearing, pursuant to Pennsylvania Rule of Criminal Procedure 907. (Not., Apr. 8, 2008.) After receiving Petitioner's response to that notice, the court dismissed the PCRA petition by Order of April 9, 2008. (See Order, Apr. 9, 2008; Dkt., Commonwealth of Pennsylvania v. Sheridan, No. 1301418-2006 (Ct. C.P. filed Oct. 27, 2006).)
On May 2, 2008, Dolores M. Bojazi was permitted to withdraw as Petitioner's counsel.
On May 7, 2008, Petitioner filed an appeal from the dismissal of his PCRA petition in the Superior Court. On appeal, Petitioner challenged both the legality and the discretion of the ten-to-twenty-year-imprisonment sentence.
On June 1, 2010, Petitioner filed the instant Petition for Writ of Federal Habeas Corpus. (Pet., ECF No. 1.) The Petition was subsequently amended on December 13, 2010 to include a challenge to the state court's subject matter jurisdiction. (Am. Pet., ECF No. 15; see also ECF No. 17 (Order accepting Amended Petition).) With respect to this challenge, Petitioner argued that "[n]o legal authority exist[s] under state and federal law, that authorizes the release of a defendant, outside the established statutory and procedural laws. Therefore, the state court's agreement with petitioner is void-ab-initio, outside state courts' subject matter jurisdiction." (Am. Pet. 3.) On April 20, 2011, Magistrate Judge Angell issued a Report and Recommendation recommending that the Petition be denied and dismissed without an evidentiary hearing. (R&R, ECF No. 19.) In the Report and Recommendation, Magistrate Judge Angell found that: (i) all of the claims are procedurally defaulted except for double jeopardy and due process challenges to Petitioner's sentence; (ii) with respect to those procedurally defaulted claims, Petitioner is not excused; and (iii) Petitioner's double jeopardy and due process claims are meritless. (Id.)
Petitioner filed Objections to the Report and Recommendation. Petitioner objects to "the entire [] Report and Recommendations" as mischaracterizing the facts and law. (Object. ¶¶ 4, 8, ECF No. 24.)
(R&R 7.) Petitioner argues that he should be excused from procedural default because he was denied effective assistance of counsel. (Object. ¶ 8.) Petitioner also asserts that there was a "substantial showing of the denial of constitutional rights." (Id. at ¶ 15.)
We review de novo those portions of the Report and Recommendation to which specific objections have been made. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(3); see also Thomas v. Arn, 474 U.S. 140, 141-42 (1985) ("[A] United States district judge may refer . . . petitions for writ of habeas corpus[] to a magistrate, who shall conduct appropriate proceedings and recommend dispositions. . . . [A]ny party that disagrees with the magistrate's recommendations `may serve and file written objections' to the magistrate's report, and thus obtain de novo review by the district judge.") (citations and footnotes omitted). Moreover, we construe the pleadings of pro se litigants liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
A federal court, absent unusual circumstances, should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of Section 2254. See 28 U.S.C. § 2254(b). Under Section 2254(c), a petitioner will not be deemed to have exhausted available state remedies if he had the right under the law of the state to raise, by any available procedure, the question presented, but failed to do so. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (noting that "we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts"); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (same). "The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights." Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (quoting Caswell v. Ryan, 953 F.2d 853, 856 (3d Cir. 1992)) (internal quotation marks omitted).
Exhaustion requires the petitioner to present to the state courts the same factual and legal theory supporting his claim. Landano v. Rafferty, 897 F.2d 661, 669 (3d Cir. 1990). If the petitioner presented a claim to the state courts, but the state courts refused to address the merits of the claim based on a state law ground that is independent of the federal question and adequate to support the judgment, the claim is considered procedurally defaulted. Lambrix v. Singletarv, 520 U.S. 518, 522 (1997). It is the petitioner's burden to prove such exhaustion. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
We agree with and adopt entirely the Magistrate Judge's assessment that all but Petitioner's double jeopardy and due process claims are procedurally defaulted. (See R&R, Section II(B)(2)). Accordingly, we may not consider the merits of these defaulted claims unless Petitioner establishes either "cause and prejudice" or a "fundamental miscarriage of justice" to excuse the default. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000) (quoting McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999)); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991).
Petitioner asserts that "attorneys are seasoned professionals, trained to detect constitutional errors and employ their skills to remedy them" (id. at ¶ 10) and that "[i]t is counsel's statutory as well as professional obligation . . . to insist upon a full and fair state proceeding (id. at ¶ 12). He contends that his post-conviction counsel was ineffective because the facts underlying the instant habeas claims were "reasonably discoverable, but were not discovered and timely advanced," due to her incompetence. (Id. at ¶ 14.)
It is true that "inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012); see also Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014). Where a habeas petitioner argues that his initial-review post-conviction counsel failed to raise a claim, thus procedurally defaulting it, the petitioner can overcome that default if he shows "that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say [he] must demonstrate that the claim has some merit." Martinez, 132 S. Ct. at 1318.
Claims of ineffective assistance of counsel are evaluated using the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on such a claim, the petitioner must demonstrate (i) that counsel's performance was deficient, in that it fell below an objective standard of reasonableness, and (ii) that the petitioner suffered prejudice as a result of the deficiency. Id. at 687. There is a strong presumption that counsel is effective, and the courts, guarding against the temptation to engage in hindsight, must be "highly deferential" to counsel's reasonable strategic decisions. Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). It is not necessary for the court to "guarantee each defendant a perfect trial with optimally proficient counsel, but rather to guarantee each defendant a fair trial, with constitutionally competent counsel." Id. at 85; see also Blystone v. Horn, 664 F.3d 397, 419 (3d Cir. 2011) ("Surmounting Strickland's high bar is never an easy task.") (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)) (internal quotation marks omitted). To establish prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (quoting Strickland, 466 U.S. at 695-96)). The court must consider the totality of the evidence, and the burden is on the petitioner. Strickland, 466 U.S. at 687, 695.
Petitioner fails to meet the Strickland standard. He alleges simply that his trial counsel was ineffective "by way of; no implementation of any effective adversary-trial-representation whatsoever/which worked to the DETRIMENT of [his] right's to [a] fair and impartial trial." (Pet. 10.) Petitioner's general allegations of dissatisfaction fall far short of the high bar Strickland has set. We have reviewed the record and see no evidence of ineffective assistance from Petitioner's counsel.
Furthermore, Petitioner has not demonstrated prejudice. He does not contend that counsel disregarded any explicit instruction by Petitioner. See Solis v. United States, 252 F.3d 289, 293-94 (3d Cir. 2001) ("Prejudice is presumed from counsel's failure to file a notice of appeal when so requested by a client."). He does not assert that counsel failed to consult with him regarding legal strategies.
Therefore, having failed to demonstrate that his underlying ineffective-assistance-of-counsel claim is substantial, Petitioner's procedural default cannot be excused under the limited exception provided by Martinez. See Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014); see also Martinez, 132 S. Ct. at 1315, 1318; Hagwood v. Wenerowicz, No. 12-5404, 2013 WL 5786178, *1-2 (E.D. Pa. Oct. 24, 2013).
Finally, Petitioner has failed to establish a "fundamental miscarriage of justice," as an alternative to showing cause and prejudice, since he failed to demonstrate "actual innocence." See Schlup, 513 U.S. at 324; Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010); Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007). To demonstrate actual innocence, Petitioner must do more than summarily assert that he is innocent; he must present "new reliable evidence" of his innocence, such as "exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence" not presented at trial. Schlup, 513 U.S. at 324; Houck, 625 F.3d at 94. In addition, he must demonstrate that the new evidence would make it more likely than not that "no reasonable juror would find [Petitioner] guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 537 (2006); see Schlup, 513 U.S. at 316; Houck, 625 F.3d at 93, 95-97. Here, Petitioner does not even argue that his actual innocence should excuse the procedural defaults; he has not offered, and we are not aware of, any new evidence to support such a claim. See Schlup, 513 U.S. at 329; see also Staton v. Smeal, No. 09-5539, 2011 WL 4482514, at *7 (E.D. Pa. July 1, 2011) (finding that actual innocence exception to procedural default did not apply because petitioner did not argue actual innocence or provide any new evidence that "no reasonable juror would have found him guilty beyond a reasonable doubt").
Petitioner's constitutional claims of double jeopardy and due process appear to have been exhausted in state court. They are, nevertheless, meritless.
Section 2254(d) provides:
Review under Section 2254(d) is limited to the record that was before the state court. See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1401 (2011) ("Although state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so. Provisions like §§ 2254(d)(1) and (e)(2) ensure that `[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.'") (citation omitted); see also Roundtree v. Balicki, 640 F.3d 530, 538 (3d Cir. 2011) ("Importantly, the evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication."). As the Third Circuit explained, "[i]n light of Pinholster, district courts cannot conduct evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d). Otherwise, federal habeas petitioners would be able to circumvent the finality of state court judgments by establishing a new factual record." Brown v. Wenerowicz, 663 F.3d 619, 629 (3d Cir. 2011).
The Supreme Court has stressed the "highly deferential" review that federal courts must accord to the state court's decision:
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotations and citations omitted). The Court further noted:
Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotations and citations omitted); see also Wiggins v. Smith, 539 U.S. 510, 511 (2003) (noting that it is not enough for a petitioner to show that the state court's adjudication of any of his claims was an "incorrect or erroneous" application of U.S. Supreme Court precedent); Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where it is the state court's application of governing federal law that is challenged, the state court's decision must be shown to be not only erroneous, but objectively unreasonable); Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.").
"In determining whether a state court unreasonably applied federal law under 28 U.S.C. § 2254(d)(1), `a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme Court].'" Wenerowicz, 663 F.3d at 630 (quoting Harrington, 562 U.S. at 102). Thus, "[t]he question is not whether the state court's holding was wrong, but whether it was reasonable," and "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The Pennsylvania court did not unreasonably apply federal law with respect to Petitioner's double jeopardy claim. In United States v. DiFrancesco, 449 U.S. 117 (1980), the United States Supreme Court determined whether a modification of sentence increasing punishment violated the double jeopardy clause of the United States Constitution. The Court concluded that the double jeopardy clause is implicated only when the defendant has a legitimate expectation that the sentence is final. Id. at 136-39. "The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137.
The Superior Court's finding that Petitioner "had no legitimate expectation of finality in his negotiated sentence" was not an unreasonable application of federal law. (Super. Ct. Op. 8.) Courts have found that the fact that a petitioner's probation was revoked and he was sentenced to an additional term of imprisonment does not violate the protection against double jeopardy, even when the sentence is in addition to that contemplated in his plea agreement. See, e.g., Williams v. Gillis, No. 00-159, 2002 WL 84440, at *3 (E.D. Pa. Jan. 17, 2002) (re-sentencing, following probation revocation, to a term of imprisonment longer than contemplated by the terms of a plea agreement is not illegal); Banks v. Chester County, No. 07-4722, 2008 WL 828105, at *6 (E.D. Pa. Mar. 25, 2008) (same). Here, Petitioner requested two weeks to get his affairs in order before reporting to serve his sentence. Petitioner was specifically warned that if he did not appear on his surrender date, his 11 ½ to 23 month sentence would be vacated and he would be sentenced in absentia to ten to twenty years in prison. Petitioner agreed to this in open court. He then failed to appear. There was no expectation of finality here.
Likewise, there is no merit to Petitioner's claim that the state court's vacating of the eleven-and-a-half to twenty-three month sentence and increase of the sentence to ten to twenty years demonstrate judicial vindictiveness in violation of Petitioner's due process rights. Nor is there any merit to the argument that the revised sentence was an illegal sentence for contempt.
During the March 6 hearing, the court made it clear on two occasions that if Petitioner failed to appear in court on the surrender date, it would vacate the agreed upon sentence and instead sentence Petitioner in absentia to ten to twenty years state imprisonment. Petitioner advised the court that he understood and agreed to those terms at least two times at that hearing. The court's subsequent increase of Petitioner's sentence, upon Petitioner's failure to appear on the surrender date, does not indicate vindictiveness by the court.
A prisoner seeking a certificate of appealability must demonstrate "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Since Petitioner is unable to meet this standard, no basis for a certificate of appealability exists here.
For these reasons, Petitioner's Objections to the R & R will be overruled, the Report and Recommendation by Magistrate Judge Angell will be adopted, and the Petition for Writ of Habeas Corpus will be denied and dismissed without an evidentiary hearing.
An appropriate Order follows.
On May 26, 2008, Petitioner filed a request for Ms. Bojazi's withdrawal. (Ltr., May 26, 2008.) In Petitioner's May 26, 2008 request, Petitioner noted that he had encountered difficulties obtaining copies of (i) the "affidavit of probable cause," (ii) "signed plea agreement by colloquy" of March 6, 2007, (iii) "notice of entering counsel's appearance," and (iv) "notice of counsel's wtihdrawal." (Id.) Petitioner sought to proceed pro se with respect to the appeal of the dismissal of his PCRA petition. (Id.)
