Lewis v. Wilson

• Decision Date: 22 June 2010
• Docket Number: Civil Action No. 05–4864.
• Parties: Terrance LEWISv.Harry WILSON, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

748 F.Supp.2d 409

Terrance LEWIS

v.Harry WILSON, et al.

Civil Action No. 05–4864.

United States District Court, E.D. Pennsylvania.

June 22, 2010.

David M. Laigaie, Dilworth Paxson LLP, Philadelphia, PA, for Terrance Lewis.Thomas W. Dolgenos, District Attorney's Office, Philadelphia, PA, for Harry Wilson et al., District Attorney of the County of Philadelphia.Molly Selzer Lorber, Philadelphia District Attorney's Office, Philadelphia, PA, for District Attorney of the County of Philadelphia, Attorney General of the State of Pennsylvania.

ORDER

BERLE M. SCHILLER, District Judge.

AND NOW, this 22nd day of June, 2010, upon consideration of the Petition for Writ of Habeas Corpus, Petitioner's Initial and Supplemental Briefs in Support of his Petition, the Commonwealth's Response to the Petition and Response to the Supplemental Brief, inclusive of all exhibits thereto, the transcript of the evidentiary hearing conducted on April 29, 2009, Petitioner's trial brief, the Commonwealth's Post-Hearing Response, Petitioner's Reply thereto, the Commonwealth's Supplemental Post-Argument Brief, Petitioner's Response and Supplemental Post-Hearing Submission, the Commonwealth's Response thereto, Petitioner's Second Supplemental Post-Hearing Submission, The Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells, the Commonwealth's Objections to the Report and Recommendation, Petitioner's Objections to the Report and Recommendation, the Commonwealth's Response thereto, and the state court record, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;

2. The Petition for Writ of Habeas Corpus is DISMISSED and DENIED without any further evidentiary hearing;

3. A certificate of appealability is GRANTED with respect to Ground Seven; and

4. Petitioner has not shown that reasonable jurists would disagree with this court's disposition of his other claims. Consequently, a certificate of appealability is DENIED with respect to Grounds On, Two, Three and Six.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

CAROL SANDRA MOORE WELLS, United States Magistrate Judge.

On August 6, 1996, when Terrance Lewis (“Petitioner”) was only seventeen years old, Hulon Bernard Howard was shot once in the back and died. The police, based on information provided by Lena Laws, a crack-addicted witness who had smoked crack shortly before the shooting, identified Petitioner as a participant in the robbery that preceded Mr. Howard's senseless death. More than one year after the crime had occurred, the police arrested Petitioner, who along with his two codefendants, Jimel Lawson and Jehmar Gladden, was tried jointly in May 1999. Petitioner was convicted of second degree murder and given the mandatory sentence in Pennsylvania of life imprisonment.¹

Over the eleven years that have passed since his trial, evidence has gradually surfaced to demonstrate that Petitioner was not present at and did not participate in the robbery and death of Mr. Howard. This court conducted an evidentiary hearing on April 29, 2009; Kizzi Baker, a new witness, Tanisha Thorton, Petitioner's sister, Jehmar Gladden and Petitioner testified. Based upon credible testimony, the court believes that Petitioner may not have been present at or participated in the tragic events of August 6, 1996; he may be actually innocent. However, as the court will explain, because of the process by which Petitioner sought relief in the state courts, the stringent requirements for relief imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and the Supreme Court's failure to hold that habeas relief can be granted to one who is actually innocent based solely upon his non-guilt, Petitioner cannot obtain relief based upon any claim herein presented. Reluctantly, this court recommends that Petitioner be denied relief, without further hearings.

I. BACKGROUND AND PROCEDURAL HISTORY ²

The facts leading to Petitioner's arrest and conviction, as summarized by the Pennsylvania Superior Court,³ are as follows:

On the night of August 6, 1996, [Petitioner] and co-defendants Jimel “Mellow” Lawson (Lawson) and Jehmar “J.R.” Gladden (Gladden) went to the home of Hulon Bernard Howard (the victim) to collect money the victim owed to Lawson for cocaine. [Petitioner] was armed with a shotgun, Lawson was armed with a handgun and Gladden was apparently unarmed. Present at the home were the victim, Lena Laws, a woman named Denise and a man named Omar.

[Petitioner] and his two co-defendants proceeded to rob them at gunpoint. After searching them and taking $20.00 from Ms. Laws, Lawson asked the victim when he planned to pay him the money the victim owed for cocaine. After the victim said he would pay the next day, Lawson shot and killed the victim.

Commonwealth v. Lewis, No. 1842 EDA 1999, slip op. at 1–2 (Pa.Super.Ct. Nov. 15, 2000) (“Super. Ct. Dir. App. op.”).

Petitioner was convicted of second degree murder, robbery and criminal conspiracy on May 24, 1999; he was sentenced to a life term of incarceration. Commonwealth v. Lewis, January Term 1998 No. 869, slip op. at 1 (Phila.Co. Dec. 22, 2006) (“Tr. Ct. PCRA op. II”). Represented by new counsel, see Pet. at 10, Petitioner appealed to the Pennsylvania Superior Court and his conviction and sentence were affirmed on November 15, 2000.⁴ Tr, Ct. PCRA op. II at 1. Allowance of appeal ( “allocatur” ) from the Pennsylvania Supreme Court was denied on April 16, 2001. Id. Petitioner did not seek certiorari from the United States Supreme Court.

Next, on January 30, 2002, Petitioner sought relief under Pennsylvania's Post Conviction Relief Act, (“PCRA”), 42 Pa. Cons.Stat. Ann. §§ 9541–46. Tr. Ct. PCRA op. II at 1. Court-appointed counsel filed an amended petition on March 18, 2002. Id. The PCRA court dismissed the entire petition on February 13, 2003 for lacking in merit. Id. at 1–2. The Superior Court affirmed on December 8, 2004, finding that none of Petitioner's claims had merit.⁵ Commonwealth v. Lewis, No. 757 EDA 2003, slip op. at 2–7 (Pa.Super.Ct. Dec. 8, 2004) (“Super. Ct. PCRA. op. I”). On August 11, 2005, the Pennsylvania Supreme Court denied allocatur. Tr. Ct. PCRA op. II at 2. Petitioner did not seek certiorari from the United States Supreme Court.

On September 2, 2005, Petitioner filed his second PCRA petition. Tr. Ct. PCRA op. II at 2. Counsel was appointed and filed an amended petition on May 23, 2006. Id. On August 18, 2006, the PCRA court gave Petitioner notice of its intent to dismiss the PCRA petition on the ground that it was untimely. Id. Petitioner, through counsel, timely objected on August 25, 2006 but the court dismissed the PCRA petition on September 21, 2006. Id. Petitioner, through counsel, then appealed to the Superior Court. Id. On November 10, 2006, the PCRA court ordered Petitioner to file a statement of matters complained of on appeal pursuant to Pa. R.App. P.1925(b). Commonwealth v. Lewis, No. 3020 EDA 2006, slip op. at 3 (Pa.Super.Ct. Nov. 14, 2007) (“Super. Ct. PCRA. op. II”). On November 14, 2007, the Superior Court concluded that Petitioner had failed to file the required statement of matters, id. at 3–4, and, as a result, had waived all appellate issues. ⁶ Id. at 2–7. On April 29, 2008, the Pennsylvania Supreme Court denied allocatur. Commonwealth v. Lewis, 597 Pa. 704, 948 A.2d 803 (2008) (table). Petitioner did not seek certiorari from the United States Supreme Court.

The instant petition for federal habeas corpus relief was filed on September 12, 2005 and the brief in support hereof on October 13, 2005. In the petition and brief, Petitioner raised claims that: (1) direct appellate counsel was ineffective for failing to argue that trial counsel had been ineffective for failing to subpoena Police Sergeant Mariano Maddela to testify for the defense; (2) direct appellate counsel was ineffective for failing to argue that trial counsel had been ineffective for failing to call Detectives Kane and Hughes to testify that Ms. Laws had not, in fact, given them an additional statement which was consistent with her trial testimony concerning how many times she had seen Petitioner prior to the day of the crime; (3) direct appellate counsel was ineffective for failing to argue that trial counsel had been ineffective for failing to seek removal of a juror who fell asleep during the trial; and (4) newly discovered evidence, an affidavit from co-defendant Gladden, exonerates Petitioner. Pet. at 9, 1–7 (reverse); Pet'r's Br. at 5, 7–28. In his May 19, 2008 Supplemental Brief, Petitioner claims that: (5) new evidence (the affidavits of Gladden and Kizzi Baker) establishes his actual innocence, thereby excusing the procedural default of his habeas claims; (6) the state courts erred in determining that his actual innocence claim had been untimely presented in his second PCRA petition; and (7) trial counsel rendered ineffective assistance by failing to conduct any pre-trial investigation, which would have uncovered the exonerating testimony of Kizzi Baker. Pet'r's Supplemental Brief (“Pet'r's Supp. Br.”) at iii, 5–17.

II. DISCUSSION

A. Non–Cognizable Claim—Alleged State Court Error in Finding that Second PCRA Petition was Untimely—Ground Six

Habeas relief is only available for violations of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). Consequently, claims based upon state law are not cognizable. See Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Further, habeas review concerns only proceedings that resulted in the petitioner's conviction, not errors that arose during state collateral proceedings. See Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir.1998). For this reason, claims premised upon delay, or other problems encountered obtaining state collateral relief, are inappropriate grounds for granting habeas relief. See id. Inasmuch as Ground Six is based on alleged state courts error in applying the PCRA...