Bowen v. Blaine

• Decision Date: 06 February 2003
• Docket Number: Civil Action No. 00-4498.
• Citation: 243 F.Supp.2d 296
• Parties: John BOWEN, Plaintiff, v. Connor BLAINE, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

243 F.Supp.2d 296

John BOWEN, Plaintiff, v. Connor BLAINE, Defendant.

Civil Action No. 00-4498.

United States District Court, E.D. Pennsylvania.

February 6, 2003.

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Cheryl J. Saurn Cheryl J. Sturm, Attorney at Law, Chadds Ford, PA, John Bowen, Waynesburg, PA, for Petitioner.

Thomas W. Dolgenos, Assistant District Attorney, Helen Kane Assistant District Attorney, Phildephia, PA, for Respondent.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

TABLE OF CONTENTS

                I. BACKGROUND ......................................................... 300
                II. DISCUSSION ........................................................ 301
                    A. Insufficiency of the Evidence Claims ........................... 301
                      1. Procedural default in habeas cases ........................... 302
                      2. Bowen's procedural default ................................... 303
                      3. Bowen's cause and prejudice argument ......................... 304
                      4. Bowen's fundamental miscarriage of justice argument .......... 306
                B. Bowen's Ineffective Assistance of Counsel Claims Based on Failure to
                    Call Witnesses Dickerson, Damas and Brookens ...................... 307
                    1. Strickland framework ........................................... 307
                    2. The AEDPA statutory framework .................................. 308
                    3. Bowen's eligibility for an evidentiary hearing ................. 309
                

                    4. The merits of Bowen's ineffective assistance of counsel claim .. 310
                       a. Strickland and the failure to call witnesses ................ 311
                       b. The Pennsylvania Superior Court's decision .................. 312
                       i. Failure to call Thomas Dickerson ............................ 312
                       ii. Failure to call Jordan Damas ............................... 313
                      iii. Failure to call Ronald Brookens ............................ 314
                       iv. Conclusions with respect to Bowen's ineffective assistance of
                          counsel claim based on failure to call witnesses ............ 315
                  C. Counsel's Alleged Failure to Inform Bowen of His Right to Testify and to
                     Make a Batson Challenge .......................................... 315
                      1. The state procedural rule was both independent and adequate .. 316
                      2. Bowen alleges no cause and prejudice that excuses him from
                         procedural default ........................................... 319
                  III. CONCLUSION ..................................................... 320
                

John Bowen ("Petitioner" or "Bowen"), a state prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is the Report and Recommendation of the Magistrate Judge recommending that the petition be denied and dismissed. In arriving at that conclusion, the Magistrate Judge found that Petitioner's claims of insufficiency of the evidence were procedurally defaulted. Moreover, the Magistrate Judge concluded that Petitioner's claims of ineffective assistance of counsel based on counsel's failure to call three witnesses to testify at trial failed to satisfy the prejudice requirement of Strickland, and that his claims of ineffective assistance of counsel based on an alleged failure on the part of counsel to explain his right to testify, and on counsel's failure to make a Batson challenge, were procedurally defaulted. Petitioner filed objections to all of these dispositions. After de novo consideration of Petitioner's objections and Respondent's answer to the objections, the court will overrule Petitioner's objections, adopt the Report and Recommendation as supplemented by this memorandum, and deny and dismiss the petition.¹

I. BACKGROUND

Petitioner John Bowen was convicted in 1992 in the Court of Common Pleas of Philadelphia County of one count of first degree murder, one count of third degree murder, criminal conspiracy, and possessing an instrument of crime in connection with the shooting deaths of two men at a West Philadelphia night club on July 11, 1991.² He is currently serving a life sentence for the first degree murder with concurrent prison terms of ten to twenty years for third degree murder, five to ten years for conspiracy, and one to two years for possessing an instrument of crime.

Alleging insufficient evidence to support his murder and conspiracy convictions and challenging a jury instruction on first degree murder, Bowen appealed to the Pennsylvania Superior Court, which affirmed his judgment of sentence. Bowen did not seek discretionary review of his insufficiency claims in the Pennsylvania Supreme Court.

Bowen did, however, choose to raise numerous claims of ineffective assistance of counsel in a collateral relief proceeding pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Const. Stat. Ann. § 9541 et seq. When the PCRA court denied his petition, Bowen appealed to the Pennsylvania Superior Court, which affirmed the dismissal of Bowen's PCRA petition and denied his motion for reconsideration. Bowen then filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied.

Arguing violations of Fifth Amendment due process and ineffective assistance of counsel, Bowen filed a pro se petition for writ of habeas corpus in federal court on September 5, 2000, amended on February 27, 2001 with the help of counsel. On January 29, 2002, Magistrate Judge Peter Scuderi recommended that Bowen's petition be denied. Bowen has filed numerous exceptions to the Magistrate Judge's Report and Recommendation.

II. DISCUSSION

A. Insufficiency of the Evidence Claims

Bowen raises four exceptions to the facts reported by the Magistrate Judge in his Report and Recommendation. Bowen asserts that the Magistrate Judge (1) unreasonably interpreted trial testimony to conclude that Bowen had stored the murder weapon at the club prior to the shooting, (2) misidentified one of the men involved in the argument that precipitated the shooting, (3) reached unwarranted conclusions that Bowen had drawn a gun and shot the victim, and (4) declined to correct an erroneous factual statement made by the Pennsylvania Superior Court when it concluded that there was sufficient evidence to convict Bowen, and so affirmed his judgment of sentence.³

A close examination of these arguments reveals that, form aside, Bowen's "exceptions" to the facts as found in the Magistrate Judge's Report and Recommendation are, in substance, a recycled version of the insufficiency claims that the Magistrate Judge concluded were procedurally defaulted.⁴ For the reasons that follow, the court concludes that Bowen's claims are indeed procedurally defaulted, and that the exceptions have no merit.

1. Procedural default in habeas cases

Individuals in custody pursuant to state court judgments may seek federal habeas review if they allege that they are in custody "in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2254(a), and meet their burden of proving that they have exhausted all available state remedies. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993) (internal citations omitted). Grounded on principles of comity, the exhaustion requirement ensures that state courts have the initial opportunity to review federal constitutional challenges to state convictions. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.2000), cert, denied, 532 U.S. 980, 121 S.Ct. 1621, 149 L.Ed.2d 483 (2001). Accordingly, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

In order to satisfy the exhaustion of state remedies requirement, a federal habeas petitioner must show that the claims included in his federal habeas petition were "fairly presented to the state courts," Toulson, 987 F.2d at 987, meaning that the questions presented in the federal habeas petition are the "substantial equivalent of th[ose] presented to the state courts." Werts, 228 F.3d at 192. A petitioner's failure to meet the burden of proving exhaustion will result in the dismissal of his federal habeas petition. See Lines v. Larkins, 208 F.3d 153, 159-60 (3d Cir. 2000), cert, denied, 531 U.S. 1082,121 S.Ct. 785, 148 L.Ed.2d 681 (2001).

If a claim has not been fairly presented to the state courts, but state procedural rules preclude a petitioner from seeking further state court relief, the claims are technically exhausted, but procedurally defaulted. Id. at 160. Similarly, procedural default bars federal habeas claims where a state court has refused to consider a petitioner's claims because of his noncompliance with an independent and adequate state rule. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).

Although procedural default may bar a petitioner from pursuing his constitutional claims in state court, the claims may be considered in federal habeas if the petitioner qualifies for either of two exceptions. First, the petitioner may show "cause for the default and actual prejudice as a result of the alleged violation of federal law...." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Second, the petitioner may escape procedural default by demonstrating "that failure to consider the claims will result in a fundamental miscarriage of justice." Id. In this case, Bowen bases his argument that his claim is not procedurally barred on this second exception.

To qualify for the "fundamental miscarriage of justice" exception, a petitioner must show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (citing Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Moreover, "[t]o establish the requisite probability, the petitioner must show that...