West v. Varano

• Decision Date: 12 December 2014
• Docket Number: 1:12-cv-2294
• Parties: LARRY WEST, Petitioner, v. DAVID VARANO, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

LARRY WEST, Petitioner, v. DAVID VARANO, et al., Respondents.

1:12-cv-2294

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

December 12, 2014

Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

On November 12, 2012, Petitioner, Larry West, an inmate currently confined at the State Correctional Institution in Coal Township, Pennsylvania, ("SCI-Coal Township"), filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). He challenges a 2006 conviction and sentence imposed by the Court of Common Pleas of Luzerne County, Pennsylvania. (Doc. 1). For the reasons that follow, the petition will be denied.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following facts have been extracted from the Pennsylvania Superior Court's January 10, 2012 Memorandum affirming the PCRA court's order denying relief, in which the Superior Court summarizes the facts as follows:

On June 17, 2005, [West] was charged with multiple crimes in connection with his repeated sexual assault of two minor females overthe course of a two-year period. See Complaint, 6/17/05; Certified Record (C.R.) at 1. [West] proceeded to a jury trial and was subsequently found guilty of indecent exposure, two counts of criminal attempt - aggravated indecent assault, and four counts each of indecent assault, corruption of minors, endangering the welfare of children, and criminal attempt - involuntary deviate sexual intercourse.¹ C.R. at 6. Sentencing was deferred pending an evaluation by the Sexual Offender Assessment Board to determine whether [West] should be classified as a sexually violent predator (SVP) under Megan's Law.² On October 3, 2006, the trial court determined that [West] met the criteria of an SVP. C.R. at 8. That same day, [West] was sentenced to an aggregate term of nine to 18 years' imprisonment, followed by five years' probation. Id.

At all relevant times during the trial and sentencing phases, [West] was represented by Stephen Urbanski, Esquire (Attorney Urbanski). On October 26, 2006, Attorney Urbanski was granted permission to withdraw, and Robert T. Yurchak, Esquire and Cynthia S. Ray, Esquire entered their appearance on behalf of [West]. C.R. at 9. [West] filed a timely notice of appeal on October 27, 2006. C.R. at 10. On January 19, 2007, the trial court directed [West] to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). C.R. at 11. [West] filed his Rule 1925(b) statement on January 31, 2007, raising 22 allegations of ineffective assistance of trial counsel, 19 challenges to the sufficiency of the evidence, and nine additional issues. C.R. at 12. The trial court, upon direction from this Court, filed a Rule 1925(b) opinion on July 27, 2007. C.R. at 16, 17.

On April 28, 2008, this Court affirmed [West's] judgment of sentence, deferring his allegations of trial counsel's ineffectiveness to collateral review. See Commonwealth v. West, 953 A.2d 842 (Pa. Super. 2008) (unpublished memorandum); C.R. at 18. [West] did not seek an allowance of appeal with our Supreme Court. Thereafter, on March 24, 2009, [West] filed a timely PCRA petition, alleging 24 allegations of ineffectiveness on the part of his trial counsel, Attorney Urbanski. C.R. at 20. On May 13, 2009, the Commonwealth filed an answer to [West's] PCRA petition. C.R. at 21. On April 15, 2010, [West] filed an addendum to his PCRA petition. C.R. at 26. The PCRA court held evidentiary hearings on [West's] PCRA petition on July 1, October 6, and October 26, 2010. Following the hearings, the PCRA court denied [West's] PCRA petition on December 30, 2010. C.R. at 39.

(Doc. 11-1, pp. 2-4, Pennsylvania Superior Court Opinion dated January 10, 2012). West filed a timely appeal to the Pennsylvania Superior Court, which affirmed the opinion of the PCRA court denying relief. (Id.).

On November 12, 2012, West filed the instant petition for writ of habeas corpus. (Doc. 1). In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), formal notice was issued to West that he could either have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by the court of appeals, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (Doc. 4). On December 26, 2012, West returned the notice of election, indicating that he wished to proceed with his petition for writ of habeas corpus as filed. (Doc. 5).

West filed a Memorandum in support of his petition on January 11, 2013.(Doc. 6). On April 12, 2013, Respondents filed a response to the habeas petition. (Docs. 11, 12). West filed a traverse on May 23, 2013. (Doc. 16).

The petition is now before the Court for consideration. In the petition, West raises the following grounds for relief:

(1) the cumulative effect of counsel's over-all substandard performance;

(2) the specific constitutionally deficient acts/omissions of counsel;

(3) the trial court's admitted inability to exercise sound judgment stemming from it's [sic] own substance abuse/gambling/pending legal issues; and,

(4) the trial court's inability to have lawfully assumed subject matter jurisdiction thereover Petitioner West's criminal matter stemming from that jurist's violation of it's [sic] oath of office incidental to [former] judge Toole's allocution to and attendant conviction of federal criminal charges.

(Doc. 1, p. 14; Doc. 6, p. 19).

II. STANDARDS OF REVIEW

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §2254(a); Estelle, 502 U.S. at 67-68 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).

A. Exhaustion/ Procedural Default

A district court may only grant a habeas petition if the petitioner has exhausted all available state remedies as to each federal claim raised in the petition. 28 U.S.C. § 2254(b)(1)(A); see also Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). Exhaustion requires the petitioner "to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts ... by invoking one complete round of the state's established appellate review process," including petitioning for discretionary appeal. O'Sullivan v. Boerckel, 526 U.S. 838, 844-845 (1999); Slutzker, 393 F.3d at 380 (citing Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996)). The burden is on the petitioner to establish that all available state remedies have been exhausted. Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005).

Exhaustion is excused for futility if "there is an absence of available State corrective process," for example when an appeal or petition for review would be procedurally barred as untimely, or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(i)-(ii);Slutzker, 393 F.3d at 380 (citing Doctor, 96 F.3d at 681). However, if exhaustion is futile because the petitioner failed to satisfy a state procedural requirement, then the petitioner has procedurally defaulted and the exhaustion requirement is not excused. Coleman, 501 U.S. at 729-30; Slutzker, 393 F.3d at 380-81. An unexhausted claim which may no longer be raised in the state courts because of a procedural bar, such as a prior waiver of the claim or the failure to raise the claim in a timely petition, is considered to have been defaulted. Lambert v. Blackwell, 134 F.3d 506, 518 (3d Cir. 1997). Federal courts may not entertain habeas petitions where the petitioner has procedurally defaulted because the procedural default "rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 729-30; Slutzker, 393 F.3d at 380-81.

Procedural default may be excused only if the petitioner "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, 501 U.S. at 749-50; Slutzker, 393 F.3d at 380-81. To establish "cause," a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule[s]." Murray v. Carrier, 477 U.S. 478, 488 (1986). Actual prejudice requires a petitioner to establish that an error caused him "actual andsubstantial disadvantage." Murray, 477 U.S. at 494 (citing United States v. Frady, 456 U.S. 152, 170 (1982)).

B. Merits

"The Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA') modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Specifically, when a federal-law issue has been adjudicated on the merits by a state court, the federal court reverses only when the decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence....