ROBERT D. MARIANI, District Judge.
Petitioner, Thomas Suarez ("Suarez"), initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Therein, he alleges trial court error, prosecutorial misconduct, sentencing error, and ineffective assistance of counsel. (Id. at 5-9). For relief, Suarez seeks release from custody or, in the alternative, a new trial. (Id. at 14). For the reasons that follow, the petition will be denied.
The background of this case has been aptly summarized by the Pennsylvania Superior Court in its opinion affirming Suarez's judgment of sentence, as follows:
(Doc. 8-7, Commonwealth v. Suarez, No. 3216 EOA 2011, at 1-3 (Pa. Super.) (footnotes omitted)). On September 4, 2012, the Pennsylvania Superior Court affirmed the judgment of sentence. (Id.).
On December 3, 2012, petitioner filed a petition for allowance of appeal with the Pennsylvania Supreme Court. Commonwealth v. Suarez, No. 927 MAL 2012 (Pa.). The Pennsylvania Supreme Court denied the petition for allowance of appeal on May 29, 2013. (Doc. 8-9, Commonwealth v. Suarez, No. 927 MAL 2012 (Pa.)).
On July 25, 2013, Petitioner filed the instant pro se petition for writ of habeas corpus. (Doc. 1).
Respondents initially argue that the habeas petition has been rendered moot by virtue of Suarez's release from custody. (Doc. 14, at 2-3). In an effort to ascertain the custodial status of Suarez, the court accessed the Vinelink online inmate locator, which revealed that Suarez is currently in custody.
Section 2254(d) of Title 28 of the United States Code provides, in pertinent part, that an application for a writ of habeas corpus premised on a claim previously adjudicated on the merits in state court shall not be granted unless:
28 U.S.C. § 2254(d). To establish that the decision was contrary to federal law "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state court decision to be an unreasonable application of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id.
Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A petitioner may only rebut this presumption with clear and convincing evidence of the state court's error. Miller-EI 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); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, a habeas petitioner "must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).
Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F.Supp.2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, U.S. 307, 316 (1979). "This provision essentially requires the district court to step into the shoes of an appellate tribunal, examining the record below to ascertain whether sufficient evidence existed to support the findings of fact material to the conviction." Breighner v. Chesney, 301 F.Supp.2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (D)
Suarez claims that he was denied a fair trial because the trial court admitted prejudicial phone calls between petitioner and his son, precluded defense counsel from arguing the absence of criminal attempt in its opening and closing statements, and failed to instruct the jury on the elements of criminal attempt. (Doc. 1, p. 5).
In affirming Suarez's judgment of sentence, the Pennsylvania Superior Court found that Suarez was not entitled to relief on the claims regarding the admittance of the phone calls and precluding defense counsel from arguing the absence of criminal attempt in its opening and closing statements. (Doc. 19-1, Commonwealth v. Suarez, No. 3146 EDA 2004, Pennsylvania Superior Court Memorandum affirming the judgment of sentence, dated Oct. 3, 2005). The Superior Court further found that the claim regarding instructing the jury on the elements of criminal attempt was waived. (Id.). The Superior Court reasoned as follows:
In the case sub judice, Suarez was not charged with facilitating a crime through a telephone conversation. Rather, the telephone conversations themselves were alleged to have been felonies. Suarez's attempt at persuading RW. to engage in sexual relations with him was sufficient evidence to support his conviction for felony criminal solicitation to commit involuntary deviate sexual intercourse. See Commonwealth v. Morales, 601 A.2d 1263 (Pa. Super. 1992) (en banc), appeal denied, 531 Pa. 652, 613 A.2d 558 (1992). Therefore, there was no need to address whether Suarez's telephone conversation with RW. was coupled with an underlying crime. Rather, the conversation itself was the underlying crime necessary for conviction under criminal use of a communications facility. Conversely, in Commonwealth v. Moss, 852 A.2d 374 (Pa. Super. 2004), the defendant was charged with a single count of criminal use of a communication facility, and in support of this charge the prosecution attempted to prove that the defendant had facilitated a drug transaction. Accordingly, Suarez is due no relief on this issue. [FN 6 — Furthermore, Suarez's argument regarding the trial court's failure to instruct the jury on this issue is waived, as Suarez failed to make a timely, specific objection to the jury charge on this point. See Pa.RCrim.P., Rule 647(8), 42 Pa. Cons. Stat. Ann.].
(Doc. 19-1, pp. 4-6) (footnote 5 omitted).
"[F]ederal habeas corpus relief does not lie for errors of state law," Estelle v. McGuire, 502 U.S. 62, 67 (1991), such as evidentiary rulings, unless the rulings rendered the trial so fundamentally unfair that a denial of constitutional rights results. See also Bisaccia v. Attorney Gen. of New Jersey, 623 F.2d 307, 312 (3d Cir. 1980), cert. denied, 449 U.S. 1042 (1980) ("evidentiary errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas corpus proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial"). The admission of evidence violates due process only if an evidentiary ruling is so egregious that it results in a denial of fundamental fairness. Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they "offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Montana v. Egelhoff, 518 U.S. 37, 43 (1996).
In order to be granted habeas relief, Suarez must demonstrate that the introduction of the telephone calls denied him his right to a fair trial or denied him due process. Suarez has simply failed to make this showing. He presents no facts or arguments in support of this claim. The trial court determined that the phone calls were brief, not unduly inflammatory, difficult to hear, and "therefore less likely to have a major impact on the jury." (Doc. 19-1, pp. 4-6). The Superior Court fully reviewed the evidence and found that the trial court did not abuse its discretion in deciding to not redact these brief phone passages, stating that the phone passages were "actually fairly mild." (Id.). The admission of the telephone calls was not unduly prejudical such that they rendered the trial fundamentally unfair. Thus, this claim will be dismissed.
As to Suarez's claim that the trial court erred in preventing his attorney from arguing the absence of criminal attempt in his opening and closing statements, Suarez must demonstrate that this trial court error denied him his right to a fair trial or denied him due process. The Superior Court determined that Suarez was not charged with facilitating a crime through a telephone conversation. Rather, the telephone conversations themselves were alleged to have been felonies and Suarez's attempt to persuade the child victim to engage in sexual relations with him was sufficient evidence to support his conviction for felony criminal solicitation to commit involuntary deviate sexual intercourse. Therefore, the Superior Court found that there was no need to address whether Suarez's telephone conversation with the child victim was coupled with an underlying crime. Rather, the conversation itself was the underlying crime necessary for conviction under criminal use of a communication facility. It cannot be said that precluding the defense from arguing criminal attempt in its opening and closing statements rendered the trial fundamentally unfair. Therefore, this claim will be dismissed.
Additionally, Suarez has procedurally defaulted the claim that the trial court failed to instruct the jury on the elements of criminal attempt. Suarez has waived this claim under state law and, as a result, has procedurally defaulted this claim in this forum. See Suarez v. Pennsylvania, 2014 WL 2922283 (M.D. Pa. 2014) (concluding that where the state court on direct appeal found the claims waived because no objection had been made at trial, federal habeas review is precluded unless the petitioner can demonstrate cause and prejudice, or that a failure to consider the claims will result in a fundamental miscarriage of justice) (citing Sloan v. Attorney General of Pennsylvania, 2010 U.S. Oist. LEXIS 101854, *33-34 (W.O. Pa. 2010)); Solano v. Lamas, 2014 WL 2567166 (M.D. Pa. 2014). Suarez is not entitled to federal habeas review unless he can meet his burden of establishing "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 would result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 260-63 (1989); Morris v. Hom, 187 F.3d 333, 342 (3d Cir. 1999). Suarez fails to acknowledge his procedural default, and fails to allege any cause and prejudice to excuse it.
Suarez next argues that "[t]he Commonwealth, in its closing argument, made comments about computer related crimes and the necessity for these communication-based crimes." (Doc. 1, p. 6).
In affirming Suarez's judgment of sentence, the Pennsylvania Superior Court found that the Commonwealth's closing argument was not prejudicial. (Doc. 19-1, Commonwealth v. Suarez, No. 3146 EDA 2004, Oct. 3, 2005 Memorandum affirming the judgment of sentence). Specifically, the Superior Court found the following:
(Doc. 19-1, pp. 7-8) (footnote omitted).
In evaluating whether a petitioner was denied his right to a fair trial as a result of the prosecutor's argument, the court must look at the prosecutor's comments in the context of the entire trial. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Laird v. Horn, 159 F.Supp.2d 58, 129 (E.D. Pa. 2001), aft'd, 414 F.3d 419 (3d Cir. 2005), cert. denied, 546 U.S. 1146 (2006). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). A petitioner seeking a writ of habeas corpus will not succeed merely because the prosecutors' actions ilwere undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quotation omitted). Rather, to successfully state a claim for habeas relief based on comments at trial by the prosecutor, a petitioner must show that the prosecutor's comments were so egregious that they fatally infected the proceedings, rendered the entire trial fundamentally unfair, and made the conviction a denial of due process. See Darden, 477 U.S. at 181; Donnelly, 416 U.S. at 643; Werts v. Vaughn, 288 F.3d 178 (3d Cir. 2000); Lesko v. Lehman, 925 F.2d 1527, 1546 (3d Cir.), cert. denied, 502 U.S. 898 (1991). See also Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (When an error occurs, the inquiry then becomes whether, in light of the record as a whole, the prosecutor's conduct "had substantial and injurious effect or influence in determining the jury's verdict").
While a prosecutor's comments during opening and closing statements must be directed to an understanding of the facts and of the law rather than to passion and prejudice, Lesko, 925 F.2d at 1545 (citing United States ex reI. Perry v. Mulligan, 544 F.2d 674, 680 (3d Cir. 1976)), the prosecution is "accorded reasonable latitude and may employ oratorical flair arguing its version of the case to the jury." Henry v. Horn, 218 F.Supp.2d 671, 705 (E.D. Pa. 2002) (quotation omitted).
The Superior Court determined that the prosecutor correctly summarized the elements of criminal use of a communication facility and referred to the use of the telephone in the commission of the crime. The Superior Court found that the prosecutor's closing argument "clearly did not rise to the level of prejudice." (Doc. 19-1, p. 7). Such factual determinations made by state courts are binding on federal habeas appeal, and may be rebutted only by clear and convincing evidence. See Werts, 288 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)). Suarez failed to show that the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181. Accordingly, habeas relief on this claim will be denied.
Suarez next challenges his sentence and contends that he was "vindictively resentenced . . . to 10 years 2 months to 26 years which is higher than a standard or mitigated range." (Doc. 1, p. 8).
In denying Suarez's appeal from the judgment of sentence, the Pennsylvania Superior Court found that this claim was waived. (Doc. 8-7, Commonwealth v. Suarez, No. 3216 EDA 2011, Sept. 4, 2012 Memorandum affirming the judgment of sentence). Specifically, the Superior Court found the following:
(Id. at pp. 5-7).
It is well-settled that a federal habeas court will not review an issue of federal law where the petitioner presented the claim to the state courts in a manner that precluded review on the merits because he failed to comply with a state procedural requirement, and the decision of the state court refusing to consider the merits rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 750; see Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996) (concluding, "if the final state court presented with a federal claim refuses to decide its merits based on an established state rule of law independent of the federal claim and adequate to support the refusal, federal habeas review is foreclosed").
Suarez has procedurally defaulted this claim. Accordingly, he is not entitled to federal habeas review unless he can meet his burden of establishing "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 would result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Harris, 489 U.S. at 260-63; Morris, 187 F.3d at 342. He cannot do so.
Notably, Suarez does not even acknowledge his procedural default, let alone allege I cause and prejudice to excuse it. For this reason alone, the default must stand. See Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that the petitioner's failure to allege cause for his default precluded federal habeas review of a defaulted claim). Further, he has not attempted to show that a miscarriage of justice would occur from a failure to consider i the defaulted claim. See Schlup v. Delo, 513 U.S. 298, 327 (1995) (providing that "miscarriage of justice" exception requires petitioner to come forward with new evidence of actual innocence). Because Suarez has not alleged, and cannot establish, cause and prejudice or a miscarriage of justice to excuse the default, federal review of this claim is unavailable.
The governing standard for ineffective assistance of counsel claims involves a two-prong test: (1) counsel's performance must have been deficient, and (2) this deficiency must have prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984).
To obtain habeas corpus relief, Suarez must show that his counsel's performance was so inadequate that she "was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment" Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Strickland's test is demanding as there is a "strong" presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Burt v. Titlow, ___ U.S. ___, ___, 134 S.Ct. 10, 17 (2013). "To overcome the Strickland presumption that, under the circumstances, a challenged action might be considered sound trial strategy, a habeas petitioner must show either that: (1) the suggested strategy (even if sound) was not in fact motivating counselor, (2) that the actions could never be considered part of a sound strategy." Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005). Even when the petitioner can point to evidence supporting a conclusion that in some respects counsel was deficient, the standard for prevailing under the first prong of Strickland remains stringent: a petitioner must establish that, "in light of all the circumstances," counsel's mistake was so egregious that it fell "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. A court must assess "counsel's reasonableness ... on the facts of the particular case, viewed as of the time of counsel's conduct." Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). Suarez has failed to overcome the presumption that counsel performed reasonably.
Suarez alleges that "trial counsel failed to object to the trial court's refusal to read an entrapment instruction to the jury raised as a defense, and failed to request [a] separate hearing under 42 Pa. C.S.A. Section 9714 or investigate and object to the use of a New York conviction triggering mandatory sentence." (Doc. 1, p. 9).
The issues of counsel's performance with respect to failure to preserve an objection to the denial of an entrapment defense and failure to object to the imposition of a mandatory sentence were addressed by the Pennsylvania Superior Court on appeal from the denial of Suarez's PCRA petition. (Doc. 21-1, Commonwealth v. Suarez, 482 EDA 2009, Pennsylvania Superior Court Memorandum, dated May 14, 2010). The Superior Court specifically determined that:
(Doc. 21-1, pp. 5) (footnotes omitted).
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. This Court finds that the record relied upon by the Superior Court supports a finding that trial counsel did preserve an objection to the denial of an entrapment instruction, and repeatedly objected to the imposition of mandatary sentencing. (Doc. 8-1, pp. 10-19, Sentencing Transcript). Thus, Suarez's argument that trial counsel failed to preserve an objection to the denial of an entrapment instruction and failed to object to the imposition of a mandatory sentence is completely foreclosed by the record.
Even if trial counsel's performance was deemed objectively unreasonable, Suarez has failed to demonstrate prejudice.
The second Strickland prong requires the following:
Grant v. Lockett, 709 F.3d 224, 235 (3d Cir. 2013). This Court must therefore determine, in light of the totality of the evidence, whether there is a reasonable probability that counsel's alleged failure to preserve an objection to the denial of an entrapment instruction and failure object to the imposition of a mandatory sentence sufficiently undermines confidence in the outcome of Suarez's trial. Consistent with Strickland, it was adequately demonstrated that trial counsel was not deficient in her representation of Suarez. She made no "errors so serious" so as to cease functioning as adequate counsel under Strickland; indeed, as it was noted, trial counsel "clearly preserved an objection to the decision of the trial court not to issue a jury instruction on entrapment, and . . . repeatedly objected to the decision of the trial court to sentence appellant to a mandatory minimum sentence based upon an allegedly inadequate record." (Doc. 19-1, p. 5). Thus, this Court finds that the clearly established federal law was reasonably applied in determining that trial counsel was effective in her assistance to Suarez. Suarez cannot demonstrate prejudice as a result of counsel's action, that is, that the outcome of his case would have been different as a result of counsel's performance. Therefore, the 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).
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability ("CON), an appeal may not be taken from a final order in a proceeding under 28 U.S.C. § 2254. A COA 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). "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, 537 U.S. at 327. Here, jurists of reason would not find the disposition of this case debatable. However, petitioner is advised that he has the right for thirty (30) days to appeal our order denying his petition, see 28 U.S.C. § 2253(a); FED. R. APP. P. 4(a)(1)(A), and that our denial of a certificate of appealability does not prevent hi mfrom doing so, as long as he seeks, and obtains, a certificate of appealability from the court of appeals. See FED. R. APP. P. 22.
Based on the foregoing, the petition for writ of habeas corpus will be denied. An appropriate Order shall issue.
