Rolan v. Coleman, 10–4547.

Citation680 F.3d 311
Decision Date17 May 2012
Docket NumberNo. 10–4547.,10–4547.
PartiesFlorencio ROLAN, Appellant v. Brian V. COLEMAN; The District Attorney of the County of Philadelphia; The Attorney General of the State of Pennsylvania.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

OPINION TEXT STARTS HERE

Bruce P. Merenstein, Esq. (argued), Schnader Harrison Segal & Lewis LLP, Philadelphia, PA, for Appellant Florencio Rolan.

Marilyn F. Murray, Esq. (argued), Assistant District Attorney, District Attorney of the County of Philadelphia, Philadelphia, PA, for Appellees Brian V. Coleman, the District Attorney of the County of Philadelphia and the Attorney General of the State of Pennsylvania.

Before: FISHER, GREENAWAY, JR., Circuit Judges, and JONES *, District Judge.

OPINION

GREENAWAY, JR., Circuit Judge.

Appellant Florencio Rolan appeals the District Court for the Eastern District of Pennsylvania's denial of his petition for habeas corpus. Rolan was convicted of murdering Paulino Santiago in 1984. His original petition for habeas corpus sought relief based on his claim of ineffective assistance of counsel. The District Court granted the petition, and we affirmed. After a retrial, the jury convicted Rolan of murder again. He submitted a petition seeking a writ of habeas corpus. The District Court denied the petition. Rolan now appeals. For the reasons stated herein, we will affirm the District Court's order.

I. BACKGROUND

In 1984, Florencio Rolan was convicted of first degree murder and possession of an instrument of crime in the 1983 shooting death of Paulino Santiago (“Paulino” or “Santiago”). The Superior Court summarized the events surrounding the shooting and leading up to Rolan's arrest as follows:

On the evening of Friday, May 13, 1983, the victim, Paulino Santiago, and Robert Aponte were selling marijuana near 17th and Wallace Streets in Philadelphia. Paulino's brother, Francisco, and [Rolan] were nearby, among a crowd estimated at thirty to fifty people. Around 8:30 P.M. a driver pulled up to buy a “nickel bag,” five dollars worth of marijuana. Aponte and Paulino Santiago argued over who should get the money for the sale. [Rolan] sided with Aponte, his cousin. The argument continued for about fifteen minutes until [Rolan] departed for the house of a friend across the street. Francisco Santiago went to an abandoned house, at 1629 Wallace Street, a few doors from the corner, to relieve himself. His brother followed.

It is undisputed that a few minutes later, inside the abandoned house, [Rolan] killed Paulino Santiago with a single shot to the chest from a .22 caliber rifle, then fled out a back alley and left the neighborhood. Police found the rifle in the alley about a block away from the abandoned house. The next day [Rolan] fled to New York City, and was not apprehended until the following November, when he returned to Pennsylvania after waiving extradition.

Commonwealth v. Rolan, 964 A.2d 398, 401 (Pa.Super.Ct.2008).

During the trial, Francisco Santiago, the victim's brother, testified that Rolan argued with Paulino on a street corner. After arguing outside, Francisco testified that he and Paulino entered an abandoned house nearby and that Rolan followed, carrying a rifle. Rolan demanded money from Paulino. Rolan then shot Paulino and ran out of the house.

Another witness, Edwin Rosado, provided contrasting testimony. Rosado stated that Paulino entered the abandoned house after Rolan, not before. Rolan did not testify at trial. The jury convicted Rolan and sentenced him to death. Rolan appealed. The Pennsylvania Supreme Court affirmed the conviction on October 18, 1988.

In 1996, Rolan filed a petition under Pennsylvania's Post Conviction Relief Act (“PCRA”). Rolan testified at the PCRA hearing that Paulino entered the house after he was already inside, and charged at him with a kitchen knife. Rolan also testified that he entered the house unarmed, but found a loaded rifle lying on the floor of the house, picked it up, and fired at Santiago in self-defense. He also testified that trial counsel, Melvin Goldstein, failed to investigate two witnesses who would have bolstered a self-defense theory: Daniel Vargas and Robert Aponte.

Vargas testified at the PCRA hearing. According to Vargas, Rolan entered the house unarmed, after which Paulino ran into the house with a kitchen knife in hand threatening to kill him. The PCRA court held that Goldstein had been constitutionally ineffective at the penalty phase of the trial and vacated Rolan's death sentence. After a penalty phase retrial, the jury sentenced him to life in prison. The Superior Court affirmed, and the Pennsylvania Supreme Court denied allocatur.

In 2001, Rolan filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in the District Court.1 The District Court granted the habeas petition, holding, among other things, that Goldstein had provided ineffective assistance of counsel by failing to investigate Vargas's testimony and failing to call him as a witness. This Court affirmed the District Court's decision granting Rolan's writ of habeas corpus. See Rolan v. Vaughn, 445 F.3d 671, 683 (3d Cir.2006).

The Commonwealth retried Rolan in 2007. By that time, many of the key witnesses had passed away. The prior testimony of those now unavailable witnesseswas read into the record. During the prosecutor's closing argument, he highlighted Vargas's absence from the 1984 trial and his (Vargas's) failure to testify until the 1996 PCRA hearing. The trial court instructed the jury that both Rolan and the Commonwealth knew of Vargas at the first trial, but that Rolan's counsel failed to call him as a witness. The trial court did not explain to the jury that Rolan's failure to call Vargas, at the first trial, was due to his trial counsel's ineffectiveness, as Rolan had requested. Rolan was convicted of first degree murder and possession of an instrument of crime. He received a sentence of life imprisonment.

Rolan appealed the second conviction. The Superior Court ordered him to file a Concise Statement of Matters Complained of on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (Rule 1925(b) statement”). Rolan filed the Rule 1925(b) statement. The Superior Court rejected all of the claims appearing in his Rule 1925(b) statement and affirmed the trial court. See Commonwealth v. Rolan, 964 A.2d 398 (Pa.Super.Ct.2008). Rolan did not seek allocatur in the Pennsylvania Supreme Court and did not file a PCRA petition.

In November 2008, Rolan filed a 28 U.S.C. § 2254 petition for habeas corpus in the District Court. The Magistrate Judge assigned to the matter recommended in her Report and Recommendation (“R & R”) that Rolan's petition for habeas corpus be denied. Specifically, the Magistrate Judge (largely referencing the Superior Court's substantive analysis) held, inter alia, that: (1) Rolan's claim of a due process violation based on the prosecutor's closing argument, regarding Vargas's failure to come forward earlier, was procedurally defaulted and, in the alternative, adopted the Superior Court's merits analysis denying the claim; (2) the Superior Court's conclusion that the prosecutor's comments regarding Rolan's failure to raise self-defense during the first trial were not improper was neither contrary to, nor an unreasonable application of, Supreme Court precedent; (3) the Superior Court's rejection of Rolan's prosecutorial misconduct claim relating to the prosecutor's comments about his post-arrest silence was neither contrary to, nor an unreasonable application of, Supreme Court precedent; (4) the Superior Court's determination that Francisco Santiago's prior testimony was properly admitted at trial was neither contrary to, nor an unreasonable application of, Supreme Court precedent; and (5) Rolan's claim regarding the prosecutor's alleged misrepresentation of key facts and impermissible comments on inadmissible evidence was procedurally defaulted and, therefore, not subject to habeas review.

The District Court approved and adopted the Magistrate Judge's R & R by order dated November 2, 2010. Rolan filed a timely appeal. We granted a certificate of appealability only as to the following issues:

(1) Appellant's arguments arising out of the prosecutor's statements regarding Daniel Vargas's failure to come forward earlier; (2) whether the prosecutor's statements regarding Appellant's failure to mount a self-defense case theory until 1996 constituted prosecutorial misconduct; (3) whether the prosecutor's comments regarding Appellant's post-arrest silence (but not his failure to testify at trial) violated his Fifth Amendment privilege against self-incrimination; (4) whether the introduction of Francisco Santiago's prior testimony was a violation of Rolan's Confrontation Clause rights; and (5) whether the prosecutor's various alleged misstatements of the evidencein closing arguments rose to the level of a due process violation.

App. at 2a.

II. JURISDICTION

The District Court had jurisdiction, pursuant to 28 U.S.C. § 2253. We have jurisdiction over the appeal from the District Court's final order denying the petition under 28 U.S.C. § 1291 and § 2253(c)(1)(A).

III. STANDARD OF REVIEW
A. Procedural Default Challenges

Title 28 U.S.C. § 2254 requires that a habeas petitioner exhaust the remedies available in the state courts before a federal court can exercise habeas corpus jurisdiction over his claim. In order for Rolan to fulfill this requirement, he must have presented both the factual and legal substance of his claims in the state court's highest tribunal. See Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). Procedural default occurs when a claim has not been fairly presented to the state courts (i.e., is unexhausted) and there are no additional state remedies available to pursue, see Wenger v. Frank, 266 F.3d 218, 223–24 (3d Cir.2001); or, when an issue is properly asserted in the state system but not addressed on the merits because...

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