Rivera v. Goode

• Decision Date: 25 March 2008
• Docket Number: Civil Action No. 05-4767.
• Citation: 540 F.Supp.2d 582
• Parties: Angel Luis RIVERA v. David J. GOODE, the District Attorney of the County of Philadelphia; and, the Attorney General of the State of Pennsylvania.
• Court: U.S. District Court — Eastern District of Pennsylvania

540 F.Supp.2d 582

Angel Luis RIVERA v. David J. GOODE, the District Attorney of the County of Philadelphia; and, the Attorney General of the State of Pennsylvania.

Civil Action No. 05-4767.

United States District Court, E.D. Pennsylvania.

March 25, 2008.

COPYRIGHT MATERIAL OMITTED

Peter A. Levin, Philadelphia, PA, for Petitioner.

Robert M. Falin, Thomas W. Dolgenos, District Attorney's Office, Philadelphia, PA, for Respondent.

DuBOIS, District Judge.

                                                      TABLE OF CONTENTS
                MEMORANDUM ................................................................................585
                  I.  INTRODUCTION ........................................................................585
                 II.  FACTUAL HISTORY .....................................................................586
                III.  PROCEDURAL HISTORY ..................................................................586
                

                 IV.  THE 28 U. S. C. § 2254 PETITION ................................................588
                  V.  APPLICATION OF 28 U.S.C. § 2254 ................................................590
                      A.  Standard of Review ..............................................................590
                      B.  The Exhaustion Requirement of § 2254 and Procedural Default ................591
                          1.  Exhaustion ..................................................................591
                          2.  Procedural Default ..........................................................591
                 VI.  DISCUSSION ..........................................................................592
                      A.  Petitioner's Ineffective Assistance of Appellate Counsel Claim ..................592
                          1.  State Court Decision ........................................................592
                          2.  Magistrate Judge's Recommendation ...........................................593
                          3.  Analysis ....................................................................594
                              a.  Appellate Counsel's Performance .........................................594
                              b.  Prejudice ...............................................................595
                              c.  Remedy for Violation of the Right to Effective Assistance of
                                    Counsel on Appeal .....................................................597
                      B.  Constitutionality of Petitioner's Sentence/Respondents' Objections to
                            the Report and Recommendation of the United States Magistrate
                            Judge .........................................................................598
                          1.  Magistrate Judge's Recommendation ...........................................598
                          2.  Respondents' Objections .....................................................599
                          3.  Application of the Exhaustion Requirement of § 2254 and Procedural
                                Default ...................................................................599
                          4.  Petitioner's Challenge to the Discretionary Aspects of His Sentence
                                — Failure of the Trial Judge to Order a Presentence Report
                                and Imposition of a Sentence in Excess of the Guidelines Without
                                an Adequate Explanation ...................................................601
                VII.  CONCLUSION ..........................................................................602
                ORDER......................................................................................602
                

MEMORANDUM

I. INTRODUCTION

Presently before the Court are the Petition for Writ of Habeas Corpus filed by Angel Luis Rivera ("petitioner"), Magistrate Judge Charles B. Smith's Report and Recommendation dated June 13, 2007, 2007 WL 5036755 and Respondents' Objections to the Report and Recommendation of the United States Magistrate Judge. The habeas petition arises out of petitioner's convictions for possession with intent to deliver a controlled substance and criminal conspiracy on October 5, 1999, in the Court of Common Pleas of Philadelphia, Pennsylvania. The trial court sentenced petitioner to consecutive sentences of ten to twenty years imprisonment on the two counts of conviction.

For the reasons that follow, the Court approves and adopts in part and rejects in part Magistrate Judge Smith's Report and Recommendation dated June 13, 2007 and sustains Respondents' Objections to the Report and Recommendation of the United States Magistrate Judge. Petitioner's Petition for Writ of Habeas Corpus is granted in part and his convictions for possession with intent to deliver a controlled substance and criminal conspiracy shall be vacated and set aside, unless, within sixty (60) days, the Commonwealth of Pennsylvania reinstates petitioner's direct appeal and new appellate counsel is appointed to represent petitioner on that appeal. The Petition for Writ of Habeas Corpus is denied in all other respects.

II. FACTUAL HISTORY

The facts underlying petitioner's conviction, as summarized by the Pennsylvania Superior Court in its opinion denying petitioner's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541, et seq., petition, Commonwealth v. Serrano, No. 858 EDA 2003, slip. op. at 1-4, 863 A.2d 1231 (Pa.Super. September 2, 2004) (Resp't's Objections Ex. B), are as follows:

In October of 1998, the Philadelphia Police Department's Narcotics Strike Force was engaged in "Operation Sunshine," an initiative to combat open drug sales in high-volume drug areas of Philadelphia. This operation involved undercover surveillance by officers observing drug sales from secret locations and transmitting descriptions of buyers to uniformed officers.

On October 2, 1998, at approximately 10:00 a.m., undercover Officer Kevin Cuddahy was stationed at a surveillance post when he observed petitioner and co-defendant Luis Rodriguez standing side by side on a street corner. Ten police officers waiting nearby were accessible over a police radio band.

Within five minutes of arriving at his observation post, Officer Cuddahy observed a black male, later identified as Jonathan Giddings, approach petitioner, engage him in conversation, and hand him money. Petitioner then reached into his pocket and handed small objects to Giddings, who placed them in his jacket and walked away. Officer Cuddahy radioed this information to backup officers, who arrested Giddings and found two plastic bags containing marijuana in his right front jacket pocket.

At approximately 10:10 a.m., Officer Cuddahy observed a white female, later identified as Rachel Murphy, approach petitioner and Rodriguez. Petitioner engaged in a brief conversation with Murphy who handed him money. Petitioner then walked into an alleyway, picked up a small object resembling a paper cup, and removed items from the cup. Petitioner handed those items to Murphy who then walked away. Officer Cuddahy radioed backup officers, who arrested Murphy and found crack cocaine and heroin on her person.

At approximately 10:15 a.m., Officer Cuddahy observed a white male, later identified as Jonathan Nilo, approach petitioner. Nilo briefly conversed with petitioner before handing him money. Petitioner again retrieved the cup from the alleyway, removed small items, and handed them to Nilo. Nilo accepted the items and returned to his car, which was parked around the corner. Officer Cuddahy radioed backup officers, who arrested Nilo and found crack cocaine on his person and in the possession of a passenger riding in his car.

After the exchange between petitioner and Nilo, Officer Cuddahy observed petitioner and Rodriguez talking, following which petitioner took money from his pocket and handed it to Rodriguez. Soon thereafter, petitioner and Rodriguez were observed entering an abandoned house, in which they were arrested at approximately 10:20 a.m. Officers searched both suspects and found ten dollars on petitioner's person and ninety-three dollars on Rodriguez's person. Petitioner was identified at the scene of arrest by Officer Cuddahy as the man seen selling drugs that morning.

III. PROCEDURAL HISTORY

On October 5, 1999, petitioner was convicted by a jury of possession with intent to deliver a controlled substance in violation of 35 Pa.C.S.A. § 780-113(a)(30) and criminal conspiracy in violation of 18 Pa. C.S.A. § 903. Based on petitioner's prior record score of five and an offense gravity score of six, the standard guideline range at sentencing was twenty-one to twenty-seven months, plus or minus six months. (Pet'r's Br. 8) (citing N.T. 10/5/99, v. 3, P. 10). Notwithstanding the guideline range, petitioner was sentenced to consecutive sentences of ten to twenty years imprisonment on the two counts of conviction.

Petitioner appealed his convictions to the Pennsylvania Superior Court, raising the, following claims: (1) the evidence was insufficient to support his convictions; (2) his sentence was excessive; and (3) trial counsel was ineffective for failing to (a) subpoena and call the alleged drug buyers; (b) interview petitioner's co-defendant; and (c) object to a comment made in the prosecution's closing argument.

Petitioner's trial counsel withdrew from the case, resulting in the appointment of new counsel, Timothy Golden. Before withdrawing, trial counsel filed a notice of appeal after being instructed to do so by the trial court. On appeal, Mr. Golden failed to present a statement of the issues presented on appeal in accordance with Pa.R.A.P 1925(b) ("Rule 1925(b) statement"), notwithstanding an order to do so by the trial court. Instead, Mr. Golden filed a letter brief in support of a motion to withdraw. After waiting nearly two months, the trial court issued an opinion on March 22, 2000 declining to "guess as to counsel's allegations of error" absent a Rule 1925(b) statement and dismissing petitioner's claims.

The Superior Court, by order dated July 7, 2000, ruled that Mr. Golden's letter brief was inadequate under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and that Mr. Golden erred in...