JOHN E. JONES, III, District Judge.
On November 12, 2012, Petitioner, Larry West, an inmate currently confined at the State Correctional Institution in Coal Township, Pennsylvania, ("SCI-Coal Township"), filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). He challenges a 2006 conviction and sentence imposed by the Court of Common Pleas of Luzerne County, Pennsylvania. (Doc. 1). For the reasons that follow, the petition will be denied.
The following facts have been extracted from the Pennsylvania Superior Court's January 10, 2012 Memorandum affirming the PCRA court's order denying relief, in which the Superior Court summarizes the facts as follows:
(Doc. 11-1, pp. 2-4, Pennsylvania Superior Court Opinion dated January 10, 2012). West filed a timely appeal to the Pennsylvania Superior Court, which affirmed the opinion of the PCRA court denying relief. (Id.).
On November 12, 2012, West filed the instant petition for writ of habeas corpus. (Doc. 1). In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), formal notice was issued to West that he could either have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by the court of appeals, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (Doc. 4). On December 26, 2012, West returned the notice of election, indicating that he wished to proceed with his petition for writ of habeas corpus as filed. (Doc. 5).
West filed a Memorandum in support of his petition on January 11, 2013. (Doc. 6). On April 12, 2013, Respondents filed a response to the habeas petition. (Docs. 11, 12). West filed a traverse on May 23, 2013. (Doc. 16).
The petition is now before the Court for consideration. In the petition, West raises the following grounds for relief:
(Doc. 1, p. 14; Doc. 6, p. 19).
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of a federal habeas court to reexamine 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 67-68 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
A district court may only grant a habeas petition if the petitioner has exhausted all available state remedies as to each federal claim raised in the petition. 28 U.S.C. § 2254(b)(1)(A); see also Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). Exhaustion requires the petitioner "to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts. . . by invoking one complete round of the state's established appellate review process," including petitioning for discretionary appeal. O'Sullivan v. Boerckel, 526 U.S. 838, 844-845 (1999); Slutzker, 393 F.3d at 380 (citing Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996)). The burden is on the petitioner to establish that all available state remedies have been exhausted. Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005).
Exhaustion is excused for futility if "there is an absence of available State corrective process," for example when an appeal or petition for review would be procedurally barred as untimely, or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(i)-(ii); Slutzker, 393 F.3d at 380 (citing Doctor, 96 F.3d at 681). However, if exhaustion is futile because the petitioner failed to satisfy a state procedural requirement, then the petitioner has procedurally defaulted and the exhaustion requirement is not excused. Coleman, 501 U.S. at 729-30; Slutzker, 393 F.3d at 380-81. An unexhausted claim which may no longer be raised in the state courts because of a procedural bar, such as a prior waiver of the claim or the failure to raise the claim in a timely petition, is considered to have been defaulted. Lambert v. Blackwell, 134 F.3d 506, 518 (3d Cir. 1997). Federal courts may not entertain habeas petitions where the petitioner has procedurally defaulted because the procedural default "rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 729-30; Slutzker, 393 F.3d at 380-81.
Procedural default may be excused only if 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 749-50; Slutzker, 393 F.3d at 380-81. To establish "cause," a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule[s]." Murray v. Carrier, 477 U.S. 478, 488 (1986). Actual prejudice requires a petitioner to establish that an error caused him "actual and substantial disadvantage." Murray, 477 U.S. at 494 (citing United States v. Frady, 456 U.S. 152, 170 (1982)). B. Merits
"The Antiterrorism and Effective Death Penalty Act of 1996 (`AEDPA') modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Specifically, when a federal-law issue has been adjudicated on the merits by a state court, the federal court reverses only when the decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d).
Bell, 535 U.S. at 694 (citations omitted).
In a recent decision, Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010), the United States Supreme Court, quoting Williams, explained that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 773. Therefore, a federal court may not grant habeas relief simply because it has concluded in its independent judgment that the state court decision applied clearly established federal law erroneously or incorrectly.
A claim has been "adjudicated on the merits" for the purposes of 28 U.S.C. § 2254(d) if the state court decision finally resolves the claim on the basis of its substance, rather than on a procedural or some other ground. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). The deferential standard of § 2254(d) applies even "when a state court's order is unaccompanied by an opinion explaining the reasons relief has been denied"; as explained by the Supreme Court, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011).
Finally, when reviewing a habeas claim, a federal court must presume that the state court's determinations of factual issues are correct. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to both explicit and implicit findings of fact, and is only rebutted by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000).
A state prisoner requesting habeas corpus relief pursuant to 28 U.S.C. § 2254 must adhere to a statute of limitations that provides, in relevant part:
28 U.S.C. § 2244(d)(1)-(2); see generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir. 1999).
The parties agree that West was required to file his habeas petition by November 13, 2012 in order to comply with 28 U.S.C. § 2254. See (Doc. 6, p. 9; Doc. 11, p. 4, ¶ 26). However, the parties disagree as to whether the instant habeas petition was timely filed. Respondents contend that it is not entirely clear when the habeas petition was filed. (Doc. 11, p. 5, ¶ 27). A review of the documents in this case reveals that West signed the habeas petition on November 12, 2012, the envelope is postmarked November 15, 2012, and the Court received the petition on November 19, 2012. See (Doc. 1).
"[P]ursuant to the prisoner mailbox rule, Appellant's pro se notice of appeal is deemed to be filed when it was handed to prison officials. . . ." Commonwealth v. Ousley, 21 A.3d 1238, 1242 n. 3 (Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011). It is unclear when West handed his petition to prison officials. Out of an abundance of caution, the Court will use the date the petition was signed by West, November 12, 2012, assume he handed the petition to prison officials on that date, and deem the petition timely filed. See Houston v. Lack, 487 U.S. 266, 271-72 (1988) (commenting that if there is a delay in a pro se prisoner's filing that he suspects is attributable to the prison authorities, he is unlikely to have any means of proving it; and holding that in light of a pro se prisoner's inability to control the prison's mail service, a document is deemed filed when he delivers it to prison authorities).
Michael T. Toole was a judge in the Luzerne County Court of Common Pleas and presided over West's underlying criminal case. Subsequent to West's sentencing, former Judge Toole faced his own legal troubles and pled guilty to federal criminal charges. United States of America v. Michael T. Toole, No. 3:09-cr-385 (M.D. Pa. 2009); (Doc. 11-3, pp. 29-36). Former Judge Toole was sentenced to a thirty (30) month term of imprisonment and a three (3) year term of supervised release. (Id.).
West claims that former Judge Toole's guilty plea, alleged substance abuse, and gambling problems somehow prejudiced him. (Doc. 1, pp. 6-7, 11; Doc. 16, p.
9). He states that former Judge Toole's alleged problems "made it fundamentally impossible for the trial court to have conducted a fair and impartial trial and in so doing has prejudiced Petitioner". (Doc. 1, p. 11). West further states that former Judge Toole's criminal conviction "was effectively in violation of his oath of office and therefore divested of associative judicial power/authority to have exercised the court's jurisdiction over West's person or the subject matter necessarily involved." (Doc. 16, p. 9).
A review of this issue reveals that West has not exhausted his claims regarding former Judge Toole. West raised this issue in his petition for reargument to the Pennsylvania Superior Court, which was denied by a per curiam opinion. Commonwealth of Pennsylvania v. West, No. 255 MDA 2011 (Pa. Super. 2011); (Doc. 11, p. 4, ¶¶ 17-21); (Doc. 12, pp. 9-10); (Doc. 16, pp. 5-6, ¶¶ 17-20). West raised similar arguments in his petition for allocatur to the Pennsylvania Supreme Court, which was also denied by a per curiam opinion. Commonwealth of Pennsylvania v. West, No. 318 MAL 2012 (Pa. 2012); (Doc. 11, p. 4, ¶¶ 17-21); (Doc. 12, pp. 9-10); (Doc. 16, pp. 5-6, ¶¶ 17-20). The entire Supreme Court Opinion states that "the Petition for Allowance of Appeal is DENIED." West, 318 MAL 2012 (Order dated April 28, 2012). As both petitions were denied without opinions, this issue has never been presented to a court to consider on the merits and is therefore unexhausted. See Marra v. Larkins, 46 Fed. Appx. 83, 93 (3d Cir. 1996) (the denial of allocatur is not itself a decision on the merits); Commonwealth v. Davis, 546 Pa. 158, 683 A.2d 873 (Pa. 1996) (denial of review does not constitute a ruling on the merits). As such, West has failed to exhaust his state court remedies with respect to this claim.
Moreover, on July 23, 2013, Magistrate Judge Martin C. Carlson issued a Memorandum and Order in the instant case denying West's motion for discovery relating to former Judge Toole's federal conviction, finding that the claim was unexhausted. (Doc. 20). Magistrate Judge Carlson stated, "while West seeks this discovery, it is evident from the Commonwealth's response to his petition for writ of habeas corpus (Doc. 11) that West has never exhausted his state remedies with respect to this claim. Thus, West seeks discovery in support of an unexhausted claim which he cannot pursue in federal court at this time." (Doc. 20, pp. 1-2).
"When a claim is not exhausted because it has not been `fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is `an absence of available State corrective process.'" 28 U.S.C. § 2254(b); see also, Werts v. Vaughn, 228 F.2d 178, 192 (3d Cir. 2000). It must be clear from existing state law and state court decisions that an avenue is foreclosed before exhaustion will be excused. Lines v. Larkins, 208 F.3d 153, 163 (2000). "In such cases applicants are considered to have procedurally defaulted their claims and federal courts may not consider the merits of such claims unless the applicant establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse his or her default. See Coleman v. Thompson, 501 U.S. 722, 750 (1991)." McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); see also, Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001); Keller v. Larkins, 251 F.3d 408, 415 (3d Cir.) cert. denied, 122 S.Ct. 396 (2001); Lines, 208 F.3d at 164-66.
In view of the passage of time since West's conviction became final, it does not appear as though he could pursue any state court remedies at this time. See Lines, 208 F.3d at 163. That is, any relief that may have been available to him under the PCRA is now foreclosed by its one-year statute of limitations, and West's claim does not satisfy any of the three § 9545 exceptions. See 42 Pa.C.S. § 9545.
In Strickland v. Washington, 466 U.S. 668, 688 (1984), the United States Supreme Court held that to prove a constitutional violation for ineffective assistance of counsel, a habeas petitioner must meet a two-pronged test. The petitioner must show "that counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Id. at 687; Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994).
To demonstrate deficient performance, a petitioner must show that "counsel's performance fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688; Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). A reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; Jermyn, 266 F.3d at 282; Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996). If, under the circumstances, counsel's actions might be considered sound trial strategy, the presumption is not rebutted, Strickland, 466 U.S. at 689, because "substantial deference is to be accorded counsel's tactical decisions." United States v. Wiener, 127 F.Supp.2d 645, 648 (M.D. Pa. 2001). A decision supported by "reasonable professional judgment" does not constitute ineffective assistance of counsel. Burger v. Kemp, 483 U.S. 776, 794 (1987). Further, counsel cannot be deemed ineffective for not pursuing a meritless claim. Hartey v. Vaughn, 186 F.3d 367, 372 (3d Cir. 1999).
A petitioner satisfies the second prong and shows prejudice when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992). "Without proof of both deficient performance and prejudice to the defense . . . it could not be said that the sentence or conviction resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable, and the sentence or conviction should stand." Bell, 535 U.S. at 695 (internal quotations and citation omitted). In assessing whether the result of the proceeding might have been different, a reviewing court must consider the "totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695; Jermyn, 266 F.3d at 283. However, "a court can choose to address the prejudice prong before the ineffectiveness prong and reject an ineffectiveness claim solely on the ground that the defendant was not prejudiced." Rolan v. Vaughn, 445 F.3d 671, 678 (3d Cir. 2006).
At the time the state court reviewed the claims raised by West, Strickland's familiar two-pronged test was the "clearly established federal law" applicable to ineffective assistance of counsel claims. Under Pennsylvania state jurisprudence, a three-prong test is applied to ineffective assistance of counsel claims, but is, in substance, identical to the Strickland test. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-77 (Pa. 1987). The Third Circuit Court of Appeals has held that Pennsylvania's test for assessing ineffective assistance of counsel claims is not contrary to Strickland. Jacobs v. Horn, 395 F.3d 92, 107 n. 9 (3d Cir. 2005); Werts, 228 F.3d at 204. Thus, under § 2254(d)(1), the relevant inquiry in addressing an ineffectiveness claim that has been adjudicated on the merits is whether the Pennsylvania court's decision involved an unreasonable application of Strickland. Jacobs, 395 F.3d at 107 n.9; Werts, 228 F.3d at 204.
In evaluating whether counsel's performance was deficient, this Court must defer to counsel's tactical decisions, avoid the distorting effects of hindsight and give counsel the benefit of a strong presumption of reasonableness. Strickland, 466 U.S. at 689. In his habeas petition, West sets forth several claims of ineffective assistance of trial counsel. (Doc. 1; Doc. 6). West states that "but for counsel's over-all ineffective assistance rendered the outcome at trial would have been different requiring the grant of federal habeas corpus relief." (Doc. 1, p. 20).
The PCRA court specifically considered West's arguments that trial counsel was ineffective for failing to: (1) properly impeach the victims with their inconsistent statements during cross-examination; (2) present evidence about the victims' mother; (3) introduce evidence of West's good character or reputation; (4) retain expert witnesses; (5) ensure that West underwent an independent medical or physiological evaluation; (6) adequately prepare for and represent West during the sentencing/SVP hearing; (7) object to a Children and Youth Services representative "coaching" the victims on the witness stand; (8) voir dire certain jurors; (9) obtain a bill of particulars; and, (10) set forth an alibi defense. (Id.); (Doc. 6-1, pp. 3-25; Doc. 6-2, pp. 1-25; Doc. 6-3, pp. 1-24).
As stated above, the PCRA court denied West's petition. On appeal, the Pennsylvania Superior Court affirmed the PCRA court's order denying relief, determined that West's ineffectiveness claims were meritless, and that trial counsel had a reasonable strategic basis for his decisions. (Doc.11-1, p. 7) (citing PCRA court order and opinion, 12/30/10, pp 7-18). The Superior Court reviewed the entire record and determined that "[w]hile [West's] brief raises a litany of ineffectiveness claims, it fails, in large part, to demonstrate that Attorney Urbanski's purported ineffectiveness `so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.'" (Doc. 11-1, p. 7) (citing 42 Pa.C.S.A. § 9543(a)(2)(ii)). The Superior Court therefore affirmed the PCRA court's order and relied on the "thorough, well-reasoned" opinion of the PCRA court. (Doc. 11-1, pp. 7-8). In addressing West's ineffectiveness claim, the Court will consider the entirety of the PCRA court's opinion that was relied on by the Superior Court.
West claims that trial counsel was ineffective for failing to properly impeach the victims with their inconsistent statements during cross-examination. Respondents argue that a witness cannot be impeached with the statement of another witness, and trial counsel was not ineffective for failing to pursue such line of questioning. (Doc. 12, pp. 10-11) (citing Commonwealth v. Baez, 431 A.2d 909, 912 (Pa. 1981) ("[I]t is axiomatic that when attempting to discredit a witness' testimony by means of a prior inconsistent statement, the statement must have been made or adopted by the witness whose credibility is being impeached.")).
The PCRA court initially determined that Petitioner made several sweeping allegations regarding trial counsel's alleged ineffectiveness for failing to impeach witnesses for various reasons, and that Petitioner failed to adequately articulate this claim of ineffectiveness in accordance with Strickland and Pierce. (Doc. 11-2, p. 13). The PCRA court stated:
(Doc. 11-2, pp. 13-14, 16).
The state courts' basis for finding that trial counsel was not ineffective for failing to ask every possible impeachment question cannot be said to be unreasonable based upon the record. This Court is mindful of the statement in Strickland that "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689; cf. Engle v. Isaac, 456 U.S. 107, 133-34 (1982). In this instance, it is clear that the state court determination that trial counsel was not ineffective in his cross-examination of the victims, was consistent with Strickland and was based on a reasonable determination of the facts in light of the evidence presented. Thus, West is not entitled to relief on this claim.
West next argues that trial counsel was ineffective for failing to present evidence about the victims' mother, specifically evidence that she previously had an abortion. (Doc. 11-2, p. 19). Petitioner claims that the victims' mother was impregnated by another man, tried to convince West that he was the father, had an abortion, and then told the father of the child that she had a miscarriage. (Doc. 11-4, June 12, 2006 N.T. 93). The PCRA court summarized the trial court transcript on this issue as follows:
(Doc. 11-2, p. 19) (footnote omitted).
In Commonwealth v. Minich, 4 A.3d 1063 (Pa. Super. 2010), the Pennsylvania Superior Court concluded that a pertinent character trait for purposes of Pennsylvania Rule of Evidence 404(a)(2) is limited to a character trait of the victim that is relevant to the crime or defense at issue in the case. See (Doc. 11-2, pp. 12-13).
The state courts' decision regarding the testimony permitted pursuant to the Pennsylvania Rules of Evidence concerns purely a state law issue that is not reviewable by a federal habeas court. Estelle, 502 U.S. at 67-68. However, this Court finds that the state courts' decision that trial counsel could not be found ineffective for acting in accordance with the Pennsylvania Rules of Evidence was based on a reasonable determination of the facts in light of the evidence presented.
West claims that trial counsel was ineffective for failing to call character witnesses on his behalf in order to establish his reputation in the community. (Doc. 11-2, p. 9).
To claim ineffectiveness for failure to call a witness under Pennsylvania law, an appellant must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed of the existence of the witness, or counsel should otherwise have known him; (4) the witness was prepared to cooperate and testify for Appellant at trial; and (5) the absence of the testimony prejudiced Appellant so as to deny him a fair trial. Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003).
The PCRA court determined that the testimony identified by West was not character evidence as defined by Pennsylvania law. (Doc. 11-2, p. 13). The court also stated that the character trait of "truthfulness and veracity" was not relevant and was inadmissable. (Doc. 11-2, p. 9). The PCRA court summarized the offered testimony as follows:
(Doc. 11-2, pp. 9-11). The PCRA court ultimately determined that "the identified testimony either is not character evidence as that term is understood in Pennsylvania jurisprudence or, runs afoul of the aforementioned appellate holdings." (Doc. 11-2, p. 13).
Given the foregoing facts of record, the state courts reasonably determined that trial counsel had a reasonable basis for not calling these witnesses. Consequently, it cannot be found that counsel's decision was so unreasonable that no competent counsel would have chosen it. See Bond v. Beard, 539 F.3d 256, 285 (3d Cir. 2008) (explaining that counsel's performance is measured against the standard of "reasonably effective assistance" as defined by "prevailing professional norms"). Because West cannot demonstrate prejudice as a result of counsel's inaction, that is, that the outcome of his case would have been different as a result of counsel's failure to present the testimony of these witnesses, West's ineffective assistance of counsel claim fails. See Strickland, 466 U.S. at 697 (holding that an ineffective assistance claim will be dismissed if the petitioner makes an insufficient showing under either the performance or prejudice prongs); McAleese v. Mazurkiewicz, 1 F.3d 159, 170-71 (3d Cir. 1993) (determining that the court is not required to address the issue of counsel's performance if it determines that no prejudice resulted from counsel's conduct). Further, counsel's decision not to call character witnesses should "be considered sound trial strategy," Strickland, 466 U.S. at 689, and is entitled to great deference. West has not demonstrated that counsel was ineffective in his failure to call these witnesses in view of the testimony the witnesses would have provided. Thus, West's claim is without merit.
West next claims that trial counsel was ineffective for failing to retain experts to examine himself and the victims. At the October 6, 2010 PCRA hearing, West testified that he believed medical experts would be necessary, but failed to present any evidence supporting this belief. (Doc. 11-4, October 6, 2010 PCRA Hearing, N.T. 62-66). West answered questioned on cross-examination by the prosecution as follows:
The PCRA court examined West's claim that trial counsel was ineffective for failing to retain experts and explained that:
(Doc. 11-2, pp. 17-18) (citing Commonwealth v. Boich, 982 A.2d 102, 110, 111 (Pa. Super. 2009); Commonwealth v. K.M., 680 A.2d 1168, 1172 (Pa. Super. 1996)).
Trial counsel made the decision not to secure the testimony of medical experts. The state courts reasonably determined that trial counsel had a reasonable basis for not calling medical experts and counsel's decision was not unreasonable. See Bond, 539 F.3d 256. West cannot demonstrate prejudice as a result of counsel's inaction and he cannot demonstrate that the outcome of his case would have been different if medical experts testified at trial. Accordingly, this ineffective assistance of counsel claim fails. See Strickland, 466 U.S. at 697; McAleese, 1 F.3d 159.
West argues that trial counsel was ineffective in his representation during the sentencing hearing. The PCRA court reviewed the October 3, 2006 sentencing/SVP proceeding and determined that counsel was not ineffective in his representation of West. (Doc. 11-2). The PCRA court outlined trial counsel's explanation of the sentencing strategy as follows:
(Doc. 11-2, p. 8). The PCRA court ultimately determined that trial counsel's explanation of the sentencing strategy was "certainly not unreasonable." (Doc. 11-2, p. 8).
Here, consistent with Strickland, it was adequately demonstrated that trial counsel was not deficient in his representation during sentencing. He made no "errors so serious" so as to cease functioning as adequate counsel under Strickland. The state courts' analyses are cogent and entirely consistent with federal standards. Accordingly, West is not entitled to relief on this claim.
West claims that a representative from Children and Youth Services was in the back of the courtroom during trial "coaching" the victims on the witness stand. He claims that the representative was shaking her head, indicating how the girls should answer the questions. The PCRA court found that this allegation was "absolutely unsupported in the record." (Doc. 11-2, p. 20).
Pursuant to Pennsylvania law, arguments that are undeveloped and lack citation to relevant authority are waived. See Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 341 (Pa. 2011) ("as [Appellant's] claim is utterly undeveloped, it is waived for purposes of . . . appeal"), cert. denied, 132 S.Ct. 267 (2011). Accordingly, this claim was waived under state law and, as a result, is procedurally defaulted in this forum. West must therefore show cause and prejudice or a fundamental miscarriage of justice in order for this Court to review this claim. West offered no explanation to excuse his default. This Court finds that the state courts made a reasonable application of a well-established state rule of procedure and that rule provided an independent and adequate ground for its decision. West has procedurally defaulted this claim and federal review is unavailable. See Coleman, 501 U.S. at 750.
West next argues that trial counsel was ineffective for failing to question, and move to strike, certain jurors. The PCRA court determined that this claim was undeveloped and was "clearly not analyzed . . . within the Strickland/Pierce test framework." (Doc. 11-2, p. 20).
West also claims that a medical expert and the victims' grandmother were speaking with the jurors, he was prejudiced by this contact, and the jurors should have been removed. (Doc. 6-2, pp. 20-21). The PCRA court found that this claim failed and "[t]he disposition sheet of June 15, 2006, offered in support of this allegation established absolutely nothing warranting the conclusion that trial counsel was ineffective." (Doc. 11-2, p. 20).
The state courts again determined that this claim was waived under state law. (Doc. 11-2, p. 20). See Briggs, 12 A.3d 291. Therefore, West's claim regarding trial counsel's failure to strike certain jurors is procedurally defaulted in this forum. West must show cause and prejudice or a fundamental miscarriage of justice in order for this Court to review this claim. West has failed to do so. As such, federal review of this claim is unavailable. See Coleman, 501 U.S. at 750.
Next, West argues that trial counsel was ineffective for failing to obtain a bill of particulars from the prosecution. The PCRA court dismissed this claim and determined that it was undeveloped and not analyzed pursuant to Strickland/Pierce. (Doc. 11-2, p. 20). As discussed in the previous two (2) sections, because this claim was waived under state law, it is procedurally defaulted in this forum. West has failed to show cause and prejudice or a fundamental miscarriage of justice in order for this Court to review this claim. The state courts made a reasonable application of a state rule of procedure. Accordingly, federal review of this claim is unavailable. See Coleman, 501 U.S. at 750.
Lastly, West claims that he presented the possibility of an alibi defense to trial counsel, and counsel failed to advance this theory. (Doc. 6-1, pp. 12-18). He appears to argue that he was never alone with the victims and therefore could not have committed the criminal acts. (Doc. 6-1, pp. 14-15). West contends that the testimony of defense witnesses Bonita Mesa, Carl Smith, Jason Derr, and Christine West would establish that they were periodically in the West home and he therefore was not alone with the victims. (Doc. 6-1, pp. 13-14); (Doc. 11-4, June 12, 2006, N.T. 173-182; July 1, 2010, N.T. 32-74). At the PCRA hearing, these witnesses testified that they spent time at the West home, however they were not at the home nonstop. (Id.).
Although not explicitly labeled as an alibi defense in the state courts, the PCRA court addressed West's claim that there were other individuals in the home at the time the offenses were committed. At the October 26, 2010 PCRA hearing, Attorney Urbanski testified that he and West discussed presenting witnesses that were present during the time the incidents occurred. (Doc. 11-4, October 26, 2010, N.T. 11). Attorney Urbanski testified as follows:
(Doc. 11-4, October 26, 2010, N.T. 11) (emphasis added).
West also claims that trial counsel was ineffective for failing to cross-examine the victims' mother as to her whereabouts during the incidents. (Doc. 11-3, p. 81). In its opinion, the PCRA court addressed this claim and stated that, at trial, "each alleged victim was asked where their mother was when these offenses were repeatedly committed and their respective responses were `she would be at work or down in Texas doing work' and `my mom was at work and the kids were either in a different room or outside.'" (Doc. 11-2, p. 17). However, this line of questioning was in the context of establishing inconsistent statements, not necessarily to prove an alibi defense. (Doc. 11-2, p. 17). Even if West's trial counsel had couched this claim in the terms of an alibi defense, the claim nevertheless has no merit.
The state courts' resolution of this claim did not involve an unreasonable application of the governing federal law. At the PCRA hearing, defense witnesses testified that they regularly spent time in the West home. See (Doc. 11-4, June 12, 2006, N.T. 173-182; July 1, 2010, N.T. 32-74). At no time, however, did the witnesses testify that they were physically present in the West residence on the specific day and time that the victims were assaulted, and they did not testify that they were continually in the home. See (Id.)
Although the proffered testimony of the defense witnesses might conceivably be construed as potentially helpful to West's case insofar as it would identify for the jury that other individuals were in the residence, its inclusion at trial would not have produced a reasonable probability of a different outcome. Even if the jury had heard the testimony of these witnesses in full, it still could have rationally concluded, based on the evidence of record, that West committed the crimes. As such, the state courts' decision reasonably applied the law established in Strickland, and thus, West's ineffectiveness assistance of counsel on this claim is without merit.
West also claims that he was prejudiced by the delay in deciding his PCRA petition. (Doc. 6, pp. 13-14; Doc. 11-3, pp. 20-21). The PCRA court considered West's claim that the delay in his PCRA petition was due to former Judge Toole's negotiations with the United States Attorney's Office and the arrest of a judge subsequently assigned to hear West's case. (Doc. 11-2, p. 6 n. 3). The PCRA court noted that West argued "the sheer length of delay is prejudice `per se.'" (Id.). The PCRA court determined that "[n]o authority is cited for this proposition and given our disposition of the petition we decline counsel's invitation to conclude `per se' prejudice." (Id.).
The Superior Court also addressed this issue as follows:
(Doc. 11-1, p. 8, n. 4).
This Court concludes that the Superior Court made a reasonable application of a well-established state rule of procedure and that rule provided an independent and adequate ground for its decision. This claim was waived under state law and is therefore procedurally defaulted in this forum. West has failed to show cause and prejudice or a fundamental miscarriage of justice in order to excuse his procedural default. As such, federal review of this claim is unavailable. See Coleman, 501 U.S. at 750.
In addition, as stated supra, note 5, habeas relief can be granted only based upon the proceedings that actually resulted in West's conviction, not upon circumstances that occurred during the state post-conviction proceedings. See Hassine, 160 F.3d at 954. Therefore, West's claim premised upon delay in deciding his PCRA petition is an inappropriate ground for granting habeas review. See id.
Respondents note that West also set forth various additional claims of errors by the PCRA court, and that such "laundry list" of alleged errors results in a waiver of these claims and "[s]imply asking rhetorical questions is not analysis or argument supporting that position." (Doc. 12, p. 14). To the extent that any of these claims have not been procedurally defaulted, the Court notes that West has also not properly presented these claims to the Court. Bald assertions and conclusory allegations do not afford a sufficient ground to provide habeas relief. See Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987). West's failure to sufficiently identify the facts upon which these alleged errors are based precludes habeas relief. Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 n. 12 (3d. Cir. 1991).
Recently, West filed motions to appoint counsel. (Docs. 25-28). Although prisoners have no constitutional or statutory rights to appointment of counsel in federal habeas corpus proceedings, Coleman, 501 U.S. at 752, the Court has broad discretionary power to appoint counsel to a financially eligible habeas petitioner if "the interests of justice so require. . ." See 18 U.S.C. § 3006A(a)(2); Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). The United States Court of Appeals for the Third Circuit has stated that appointment of counsel for an indigent litigant should be made when circumstances indicate "the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984). The initial determination to be made by the Court in evaluating the expenditure of the "precious commodity" of volunteer counsel is whether the petitioner's case has some arguable merit in fact and law. Montgomery, 294 F.3d at 499. If a petitioner overcomes this threshold hurdle, other factors to be examined are:
Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-57).
As stated above, the habeas corpus petition does not have arguable merit. Accordingly, the motions for appointment of counsel will be denied. This Court notes that the remaining factors also weigh against the appointment of counsel because West has demonstrated the ability to present comprehensible arguments, the legal issues are relatively simple, and the case does not require expert testimony.
A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he 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). For the reasons set forth in this Memorandum, this Court will not issue a certificate of appealability.
Based on the foregoing, West's petition for writ of habeas corpus will be denied. A separate Order follows.
42 Pa.C.S. § 9545(b).
