McCabe v. Pennsylvania,
| Citation | 419 F.Supp.2d 692 |
| Decision Date | 14 March 2006 |
| Docket Number | No. CIV.A. 04-5384.,CIV.A. 04-5384. |
| Parties | Kathleen McCABE, Petitioner, v. Commonwealth of PENNSYLVANIA, et al., Respondents. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Kathleen McCabe, Muncy, PA, for Petitioner.
Alisa R. Hobart, Reading, PA, for Respondents.
Before the Court is Kathleen Joyce McCabe's pro se Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. Pursuant to local rule, the petition was referred to a Magistrate Judge for Report and Recommendation. On April 1, 2005, Magistrate Judge Arnold C. Rapoport issued a Report and Recommendation recommending that the petition be dismissed without prejudice for Petitioner's failure to exhaust her available state court remedies. Because the Court finds that Petitioner's claims are procedurally defaulted, and, therefore, she has no available state remedies, the Court will disapprove the Report and Recommendation. Instead, the Court will grant Petitioner 30 days to supplement her petition by pointing to facts that demonstrate cause and prejudice, or a fundamental miscarriage of justice.
On December 2, 2003, before the Honorable Linda K.M. Ludgate of the Court of Common Pleas for Berks County, Petitioner plead guilty to third degree murder, robbery, and conspiracy to commit robbery, and was sentenced that day to twenty-five to sixty years imprisonment. The conviction resulted from Petitioner's participation in the beating death and robbery of a man raised with Petitioner.
On December 10, 2003, Petitioner filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541, et seq., alleging the ineffectiveness of her trial counsel, John T. Adams, and requesting the Court permit the withdrawal of her guilty plea. On December 11, 2003, Mr. Adams, on the behalf of Petitioner, filed a motion to modify her sentence. The PCRA court, presided over by Judge Ludgate, then appointed new counsel to represent Petitioner at a joint post-sentence Motion to Modify and PCRA petition hearing scheduled for February 2, 2004. This hearing was continued until March 15, 2004, and both claims were denied on April 22, 2004. Petitioner did not appeal either of these denials.1
Petitioner filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2254 on November 18, 2004. The claims in the petition are: (1) Petitioner did not understand the nature of the charge against her and neither her lawyer nor the judge explained the charge to her; (2) her lawyer did not file an appeal of the denial of the PCRA petition or the motion to modify sentence; and (3) Petitioner's right to appeal to a higher court was violated in that she was framed for the death of the victim in this case. On February 9, 2005, the matter was referred to Magistrate Judge Arnold C. Rapoport for Report and Recommendation in accordance with the Court's procedures.
On April 1, 2005, Magistrate Judge Rapoport issued a Report and Recommendation recommending dismissal without prejudice of the instant petition for the failure to exhaust her available state court remedies. Although Petitioner did not file formal objections to the Report and Recommendation, she sent a letter to the Court on January 5, 2006, with her version of events. Because Petitioner is pro se, the Court will deem the letter to be the equivalent of objections to the Report and Recommendation.
When a habeas petition has been referred to a magistrate judge, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). The Court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.
The Pennsylvania Post-Conviction Relief Act (PCRA) provides for "an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief." 42 Pa.C.S. § 9542. The PCRA is the exclusive means in Pennsylvania by which defendants may obtain collateral relief. Id.
To be eligible under the PCRA, a petition must be filed within one year of the conclusion of direct review, or at the expiration of the time period for seeking such review. 42 Pa.C.S. § 9545. The statute recognizes three exceptions to this time limitation:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1). The Supreme Court of Pennsylvania has found that the PCRA's time limitations are jurisdictional, meaning they "go to a court's right or competency to adjudicate a controversy." Commonwealth v. Cruz, 578 Pa. 325, 335, 852 A.2d 287 (Pa.2004) (); Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999). For this reason, a court may only grant an extension to the time limitation pursuant to the statutory exceptions; equitable tolling may not be applied to petitions brought under the PCRA. Id.
The doctrine of exhaustion requires a state prisoner asserting federal habeas claims to allow the state courts to act on her claims before presenting them to a federal court. See O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); 28 U.S.C. § 2254(b)(1)(A). In order to exhaust her claims, a petitioner must present every claim in her habeas petition for every available level of state court review. Lambert v. Blackwell, 387 F.3d 210, 232 (3d Cir.2004).2 The petitioner bears the burden of showing state court remedies have been exhausted. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993).
If a habeas petition is mixed, that is, it contains both exhausted and unexhausted claims, a federal court may stay the petition and hold it in abeyance until the unexhausted claims have been exhausted. Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). This procedure, as of the date of this memorandum, has largely been confined to mixed petitions. Petitions containing only unexhausted claims must be dismissed without prejudice so that the petitioner can exhaust her claims in state court and then return to federal court.
If, however, state law "clearly foreclose[s] state court review of unexhausted claims," the claims are considered to be procedurally defaulted. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993); Holman v. Gillis, 58 F.Supp.2d 587, 592 (E.D.Pa. 1999) (Robreno, J.). Exhaustion is not possible, and sending the claims back to state court would therefore be futile.
If a petitioner's claims have been procedurally defaulted, a federal court cannot review these claims "unless the prisoner 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 v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
In order to satisfy the cause and prejudice requirement, courts have held that cause exists when a petitioner "demonstrate[s] some objective factor external to the defense that prevented compliance with the state's procedural requirements." Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir.2002) (quoting Coleman, 501 U.S. at 753, 111 S.Ct. 2546). The cause must be "`something that cannot fairly be attributed to' the petitioner." Johnson v. Klem, 2004 WL 1175575, at *2 (E.D.Pa.2004) (quoting Coleman, 501 U.S. at 753, 111 S.Ct. 2546). Prejudice means that "the alleged error `worked to [petitioner's] actual and substantial disadvantage.'" United States v. Rodriguez, 153 F.Supp.2d 590, 594 (E.D.Pa.2001) (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)).3
To show a fundamental miscarriage of justice will occur if the claims are not reviewed, a petitioner must present new evidence that he is actually innocent of the crime for which he has been convicted. See Cristin, 281 F.3d at 412.
Petitioner makes three claims in her habeas petition: (1) She did not understand the nature of the charge against her and neither the lawyer nor the judge explained the charge to her; (2) her lawyer did not file the requested appeal from the denial of her initial PCRA petition; and (3) her lawyer did not file the requested appeal from the denial of her motion to modify her sentence.
Petitioner did not exhaust her claims in state court—no state appellate court heard her ineffectiveness of counsel claim as stated in her PCRA petition, nor her claims regarding counsel's failure to file an appeal.
Petitioner's motion to modify her sentence and initial PCRA petition were denied on. April 22, 2004. Petitioner did not appeal either of these denials, and her conviction therefore became final on May 22, 2004. Because of the PCRA's one-year time limitation, Petitioner would have had to return to state court to exhaust her state remedies before May 22, 2005.
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