Xavier v. Harlow, CIVIL ACTION NO. 3:12-CV-1235

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
PartiesGUSTAVO XAVIER, Petitioner, v. MICHAEL HARLOW, et. al., Respondents.
Docket NumberCIVIL ACTION NO. 3:12-CV-1235
Decision Date07 January 2016

al., Respondents.



January 7, 2016




Presently before the Court is Magistrate Judge Joseph F. Saporito, Jr.'s ("Magistrate Judge Saporito") Report and Recommendation ("R & R") (Doc. 18.) recommending that the Petition for Writ of Habeas Corpus filed by Petitioner, Gustavo Xavier ("Xavier"), be denied and dismissed with prejudice and that a certificate of appealability not be issued. Xavier filed timely objections to the R & R, asking this Court to reject the recommendation, or in the alternative, issue a certificate of appealability. Because Xavier has failed to demonstrate that the Pennsylvania Superior Court's decision was contrary to Supreme Court precedent and because he has failed to allege a violation of his constitutional rights, his objections will be overruled, the recommendation will be adopted, his habeas petition will be denied and dismissed, and a certificate of appealability will not be issued.

I. Background

A. Factual and Procedural Background

The facts as set forth in Magistrate Judge Saporito's R & R and Xavier's Brief in Support of Objections (Doc. 22.) are as follows: Petitioner, Gustavo Xavier, entered a guilty plea in the Susquehanna County Court of Common Pleas on May 1, 2009. Xavier pleaded guilty to one (1) count of third-degree murder. On May 19, 2009, Xavier filed a motion to withdraw his guilty plea but subsequently withdrew the motion. On May 21, 2009, Xavier was sentenced, as agreed upon, to twenty (20) to forty (40) years in a Pennsylvania State

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Correctional Facility. After sentencing, Xavier's original charges of one (1) open count of criminal homicide and one (1) count of aggravated assault were nolle prossed, pursuant to the plea agreement.

Xavier did not file a direct appeal but filed a pro se Post Conviction Relief Act ("PCRA") petition in the Susquehanna Court of Common Pleas on November 24, 2009. On November 17, 2010, he filed an amended or supplemental PCRA petition.1 An attorney was subsequently appointed to represent Xavier for PCRA purposes. On March 18, 2011, the appointed attorney filed a no merit letter and requested to withdraw as counsel pursuant to the dictates of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (Pa.1988), and Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (Pa. Super.1988) (en banc).

On September 27, 2011, the Susquehanna County Court of Common Pleas denied Xavier's request for PCRA relief and granted appointed counsel's request to withdraw.2 Xavier appealed to the Pennsylvania Superior Court ("Superior Court") which affirmed the denial of PCRA relief on May 23, 2012. Xavier did not file a petition for allocatur with the Supreme Court of Pennsylvania.

On August 6, 20123, Xavier filed a pro se federal habeas petition in the Western

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District of Pennsylvania. (Doc. 1.) The matter was transferred to the Middle District of Pennsylvania on August 14, 2012. (Docs. 2-3.) On September 10, 2012, the Susquehanna County District Attorney's Office ("Respondent") filed an answer to the petition as the respondent. (Doc. 10.) On October 15, 2012, Xavier filed a reply to Respondent's answer. (Doc. 12.) On December 17, 2012, the Federal Public Defender's Office was appointed to represent Xavier. (Doc. 13.) On March 25, 2013, the Public Defender filed a supplemental reply on behalf of Mr. Xavier. (Doc. 16.) Magistrate Judge Saporito issued the current R & R on May 22, 2015. (Doc. 18.) On June 30, 2015, Xavier filed timely objections (Doc. 21.) and a brief in support of his objections (Doc. 22.).4 Respondent filed a brief in opposition to Xavier's objections. (Doc. 23.) Xavier did not file a reply brief. As such, the R & R and Xavier's objections thereto, are ripe for review.

B. Pennsylvania State Court Proceedings

The initial-review PCRA court addressed five claims of alleged ineffectiveness asserted by Xavier and determined that no claim merited PCRA relief. (Doc. 10-1, 161-64.) The claims were as follows: failing to recognize or assist Xavier due to his lack of sufficient command of the English language; failing to advance a diminished capacity defense; failing to obtain an autopsy report; imposition of an excessive sentence; and failing to inform the trial court that Xavier was a police officer in Uruguay. (Id.) The court denied the petition.

Following the PCRA court's decision and the permitted withdrawal of appointed counsel, Xavier filed an appeal. The Superior Court issued a Memorandum and Order and affirmed the denial of PCRA relief. (Doc. 10-1, 255-67.) The Superior Court addressed the following ineffectiveness claims: failing to file a pre-trial motion challenging the voluntariness

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of Xavier's confession; mistakenly advising that if Xavier proceeded to trial, he would not be successful in pursuing a diminished capacity defense of intoxication and post-traumatic stress disorder; failing to inform that a third-degree murder conviction carries a minimum sentence of six (6) to twelve (12) years; misadvising that it did not matter that Xavier used a car jack as opposed to a sink pipe to kill the victim; and PCRA counsel's failure to adequately raise claims of plea counsel's ineffectiveness. (Id.) The Superior Court deemed all claims not listed above to be waived pursuant to the Pennsylvania Rules of Appellate Procedure. (Id. at 2 n. 1.) Xavier did not seek allocatur with the Pennsylvania Supreme Court.5

II. Legal Standards

A. Standard for Reviewing a Report and Recommendation

Where objections to the Magistrate Judge's Report and Recommendation are filed, the court must conduct a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.1989) (citing 28 U.S.C. § 636(b)(1)(c)). However, this applies only to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.1984). In conducting a de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the law permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F.Supp. 328, 330 (M.D. Pa.1994).

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Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F.Supp. 375, 376-77 (M.D. Pa. 1998).

B. Standard for Relief under 28 U.S.C. § 2254

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petitioner in custody pursuant to a state court judgment may apply for a writ of habeas corpus in federal court "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. Section 2254(d)6 "places 'new constraint[s] on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.'" Woodford v. Garceau, 538 U.S. 202, 206, 123 S. Ct. 1398, 1401, 155 L. Ed. 2d 363 (2003) (citing Williams v. Taylor, 529 U.S. 362, 412, 386, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). "Under AEDPA, a federal habeas court cannot grant relief after a state court has rejected the petitioner's claim on the merits unless the state court's decision was 'contrary to,' or an 'unreasonable application of,' clearly established Supreme Court precedent." Jamison v.

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Klem, 544 F.3d 266, 271 (3d Cir. 2008) (citing 28 U.S.C. § 2254(d)). First, the court must "determine whether the state court decision was 'contrary to' Supreme Court precedent that governs the petitioner's claim' and '[r]elief is appropriate only if the petitioner shows that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.'" Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999) (citing O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998)). If the state court decision was not contrary to existing Supreme Court precedent, then "the federal habeas court must ask whether the state court decision represents an 'unreasonable application of' Supreme Court precedent: that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted.'" Matteo, 171 F.3d at 891.

III. Discussion

Xavier has raised eleven (11) objections to Magistrate Judge Saporito's R & R, necessitating a de novo review of those portions specifically objected to. Following review of Xavier's pro se and counseled filings, Magistrate Judge Saporito breaks down Xavier's allegations into five separate claims with subparts and analyzes the claims accordingly. (Doc. 18, 4-5.) Because several of Xavier's objections overlap and address Magistrate Judge Saporito's five framed issues, the five claims are addressed below along with Xavier's corresponding objections. The R & R lists those five alleged claims as follows:

(1) Xavier was denied the effective assistance of counsel in trial proceedings because his trial counsel failed to move to suppress an allegedly inadmissible confession given to police when Xavier was hospitalized and intoxicated;
(2) Xavier was denied his right against self-incrimination when he was interrogated by police and gave a confession while hospitalized

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