Veal v. Myers
| Citation | 326 F.Supp.2d 612 |
| Decision Date | 14 July 2004 |
| Docket Number | No. 98-CV-3993.,98-CV-3993. |
| Parties | Travis VEAL, Petitioner, v. Robert MYERS, et al., Respondents. |
| Court | United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania) |
Lisa A. Mathewson, Robert E. Welsh, Jr., Welsh & Recker, P.C., Philadelphia, PA, for Petitioner.
John W. Goldsborough, Thomas W. Dolgenos, District Attorney's Office, Assistant District Attorney, Michele S. Davidson, Layser & Freiwald, Donna G. Zucker, Philadelphia, PA, for Respondents.
Travis Veal ("Veal") petitions the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2003). For the following reasons, Veal's petition is denied.
On April 21, 1989, Veal was convicted by a jury in the Court of Common Pleas in Philadelphia of second degree murder, robbery, conspiracy and possessing an instrument of crime. (Report and Recommendation1 ("R & R") at 4.) The charges were filed as a result of a robbery of Dave's Grocery Store, during which Veal and an accomplice, Leonard Ravenell ("Ravenell"), robbed the store and Ravenell shot the owner, Mr. Rodriguez, in the head. (Id. at 2.) At trial, Veal was represented by Attorney Thomas Moore ("Moore"). The Commonwealth presented Ravenell as the primary Commonwealth witness against Veal at trial. (R & R at 3.) Two additional Commonwealth witnesses, Mrs. Rodriguez ("Mrs.Rodriguez") and Tracey Natal ("Natal") also testified during the trial. (Id.) Mrs. Rodriguez was the wife of the deceased store owner Mr. Rodriguez, and was in the store during the shooting. (Id. at 2.) Tracey Natal, who was eleven years old at the time, was also inside the store during the shooting. (Id.) Mrs. Rodriguez and Natal both confirmed Ravenell's testimony and identified Veal as one of the perpetrators. (Id. at 3.) Veal was sentenced to life imprisonment. (Id. at 4.) Veal did not file a direct appeal to the Superior Court. (Id.) On December 18, 1990, Veal filed a pro se petition for collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. (Id.) On August 10, 1995, pursuant to Veal's PCRA petition, the Honorable Joseph I. Papalini reinstated Veal's appellate rights nunc pro tunc. (Id. at 5.) Petitioner then filed a direct appeal to the Pennsylvania Superior Court. In his appeal to the Superior Court, Veal was represented by Attorney David Rudenstein ("Rudenstein"). (Resp. at 2.) Veal raised the following issues for consideration by the Superior Court:
1) Is appellant entitled to a new trial, because the verdict was against the weight of the evidence?
2) Is appellant entitled to a new trial, because appellant's trial counsel was ineffective for failing to move, prior to trial, for the suppression of identification testimony of Mrs. Rodriguez and Tracey Natal?
3) Is appellant entitled to a new trial, because appellant's trial counsel was ineffective for failing to request proper eyewitness jury instructions?
Commonwealth v. Veal, Pennsylvania Superior Court 455 Pa.Super. 698, 688 A.2d 1231 (1996). Because it is relevant to my decision in this case, I will include a brief synopsis of the opinion issued by the Superior Court on November 27, 1996.
In its opinion affirming the judgment of sentence against Veal, the Superior Court first noted that Judge George J. Ivins, the trial judge, had already properly disposed of the first issue raised by Veal's appeal. Adjudicating Veal's ineffective assistance of counsel [hereinafter "IAC"] claims, the Superior Court stated:
Our standard of review in evaluating the claim of ineffective assistance of counsel is well-settled. We presume that trial counsel is effective and place on the defendant the burden of proving otherwise. Commonwealth v. Blount, 538 Pa. 156, 647 A.2d 199 (1994); Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189 (1994); Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Edmiston, 535 Pa. 210, 238, 634 A.2d 1078, 1092 (1993); Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will not be deemed ineffective for failing to pursue an issue which is without basis. Johnson, supra. Even if the underlying claim has merit, the appellant still must establish that the course of action chosen by his counsel had no reasonable basis designed to effectuate the client's interest and, finally, that the ineffectiveness prejudiced his right to a fair trial. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
Thus, the Superior Court was unambiguous in its assertion that, under Pennsylvania law, in order to address Veal's claim of ineffective assistance of counsel, the Superior Court was first required to assess the merits of the underlying claim. Citing Pennsylvania case law, the Superior Court began its analysis by stating the relevant standard for the underlying claim of identification taint: "In reviewing claims of whether a defective pre-trial identification taints an in-court identification that flows from it, `we must determine whether the identification procedure was so suggestive and conducive to irreparable mistaken identity so as to deny the accused due process.'" Id. (citing Commonwealth v. Swinson, 426 Pa.Super. 167, 626 A.2d 627, 630 (1995)). Furthermore, the Superior Court noted that "[t]he constitutionality of an in-court identification ... rests upon whether such identification is reliable ... [and] in gauging reliability, we employ a totality of the circumstances test." Id. (citing Commonwealth v. Baker, 614 A.2d 663 (Pa.1992)). The Superior Court further noted that the Pennsylvania Supreme Court had delineated several specific factors to be considered in the course of conducting an analysis of reliability: (1) the suggestiveness of the pre-trial identification; (2) the prior opportunity of the witness to observe the criminal act; (3) the accuracy of the witness' description; (4) the lapse of time between the act and any line-up; (5) and any failure to identify the defendant on prior occasions. Id. (citing Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379, 1382 (1979)). After reviewing the totality of the circumstances surrounding the identifications of Mrs. Rodriguez and Natal, and analyzing the applicable factors, the Superior Court stated that "Veal's arguments as to both Mrs. Rodriguez and Ms. Natal are meritless," and, therefore, counsel was not ineffective. Id.
Following the ruling by the Superior Court issued on November 27, 1996, Veal failed to file a timely petition for allowance of appeal with the Supreme Court of Pennsylvania. (R) & R at 5.) Over nine months later, however, on September 15, 1997, Veal's newly appointed counsel, John Elbert ("Elbert") filed a petition for allowance of appeal in the Pennsylvania Supreme Court. (Id. at 5); (Resp. at 3.) The petition reasserted the same claims previously asserted before the Superior Court.2 (R & R at 5); (Resp., Ex. I.) Veal's request for allocatur, however, was denied on February 23, 1998. (R & R at 5); Commonwealth v. Veal, 490 E.D. Allocatur Docket 1997. As I stated previously in Veal v. Myers,"the Pennsylvania Supreme Court's denial [of allocatur] is presumed to be on the merits." 126 F.Supp.2d 932, 936 (E.D.Pa.2000) (citing Hull v. Kyler, 190 F.3d 88 (3d Cir.1999)). Petitioner did not thereafter file a PCRA petition.
On July 31, 1998, Veal filed his original habeas petition claiming ineffective assistance of trial counsel for: (1) failing to move, prior to trial, for the suppression of identification testimony; and (2) failing to request proper jury instructions regarding eyewitness identification testimony. In their response to the petition, the Commonwealth argued that Veal's claims were procedurally defaulted because his allocatur petition was not timely, and because he had demonstrated neither cause nor prejudice to excuse the default. (R & R at 6). Agreeing with the Commonwealth, on October 23, 1998, Magistrate Judge Rapoport filed his first Report and Recommendation recommending that Veal's petition be denied. (Id.)
In response to the first R & R, Veal filed pro se objections in which he argued that the procedural default should be excused. Veal's argument largely centered around an unusual order obtained by Veal and entered by the Honorable Carolyn E. Temin of the Court of Common Pleas of Philadelphia County on August 15, 1997. (Id. at 7.) Judge Temin's order, which stated "that the defendant be allowed to proceed with a nunc pro tunc Petition for Allowance of Appeal to the Pennsylvania Supreme Court," appeared to grant Veal's request to proceed with a nunc pro tunc petition for allowance of appeal to the Pennsylvania Supreme Court.3 (Resp., Ex. H (order)); (R & R at 7); see also Veal v. Myers, 126 F.Supp.2d 932 (E.D.Pa.2000) (detailing procedural history). After an initial round of briefing regarding the unusual order, I appointed counsel for Veal. On May 8, 2000, Veal filed amended objections to the original R & R issued on October 23, 1998. On June 19, 2000, the Commonwealth responded, and on July 12, 2000, Veal filed a reply. On October 30, 2000, I heard oral argument on the issue of procedural default in light of the unusual Common Pleas Court Order, and on December 29, 2000, I issued an "Explanation and Order" concluding that the Commonwealth had waived the procedural default with respect to Veal's 1997 pro se motion. (R & R at 8); Veal v. Myers, 126 F.Supp.2d 932 (E.D.Pa.2000). Specifically, I held that "[i]f the Commonwealth wished to avoid the state court's waiver of the procedural default, it was incumbent upon it to appeal the Court of Common Pleas' order." Veal, 126 F.Supp.2d at 935 (citing Hull v. Kyler, 190 F.3d 88 (3d Cir.1999)).4
On July 9, 2001, Veal filed his first...
To continue reading
Request your trial
-
Edward Gee v. Kerestes .
...between an ineffective assistance of counsel claim and its underlying claim in the procedural default context. See Veal v. Myers, 326 F.Supp.2d 612 (E.D.Pa.2004). In Veal, the petitioner had raised his claim of identification taint in the state court via a Sixth Amendment ineffective assist......
-
Mathias v. Collins
...is sufficient to exhaust state remedies on this claim. McCandless v. Vaughn, 172 F.3d 255, 261-62 (3d Cir. 1999); Veal v. Myers, 326 F. Supp. 2d 612, 622 (E.D. Pa. 2004). The Fourteenth Amendment states in relevant part that no state shall "deprive any person of life, liberty, or property, ......
-
Cash v. Wetzel
...some courts have held exhausts the direct claim. See Gee v. Kerestes, 722 F. Supp. 2d 617, 623-24 (E.D. Pa. 2010); Veal v. Myers, 326 F. Supp. 2d 612, (E.D. Pa. 2004). Thus, the Court will assume, as did Magistrate Judge Hart, that the Brady claims were exhausted.2 A. Failure to Produce the......
-
Prosdocimo v. Sec'y, Pennsylvania Dep't of Corr.
...exhausted and the state court's decision that the underlying claim had no merit was reviewed under § 2254(d)(1)); Veal v. Myers, 326 F. Supp. 2d 612, 622 (E.D. Pa. 2004) (concluding that, when the state court has discussed the merits of a habeas petitioner's claim, a holding that he or she ......