Caple v. Bush

FRANK CAPLE, Petitioner, v. ERIC P. BUSH, et al., Respondents.

CIVIL ACTION NO. 17-3989

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

March 20, 2019

TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................ 3

II. BACKGROUND .............................................................................................................. 5

A. Petitioner Frank Caple's State Court Conviction ............................................................. 5

B. Caple's Direct Appeal and Resentencing ......................................................................... 6

C. Caple's Petition for Collateral Review under the Post Conviction Relief Act ("PCRA") 9

D. Caple's Amended Petition for Writ of Habeas Corpus in Federal Court ........................ 12

1. The First Report and Recommendation .................................................................... 14

2. The Second Report and Recommendation ................................................................ 15

3. Caple's Motions for Leave to Amend the Amended Petition for Writ of Habeas Corpus .......................................................................................... 16

4. Caple's Motion to Stay the Proceedings ................................................................... 17

III. STANDARD OF REVIEW ............................................................................................ 18

IV ANALYSIS ..................................................................................................................... 20

A. The Court will Deny Caple's Claim that the State Trial Court Erred by Denying His Motion to Suppress the Western Union Receipt ............................................................. 21

1. The Western Union Receipt Claim is Procedurally Defaulted ............................. 22

2. The Court will not Excuse the Procedural Default of the Western Union Receipt Claim ..................................................................................................................... 24

3. The Western Union Receipt Claim is Non-Cognizable ........................................ 31

B. The Court will Deny Caple's Ineffective Assistance of Counsel Claim ......................... 34

1. Caple's Claim that Mr. Wile was Ineffective is not Procedurally Defaulted, but the Court will not Stay the Proceedings Because the Claim is Meritless ................... 35

2. Caple's Claim that Ms. McMahon was Ineffective is Procedurally Defaulted and Meritless ................................................................................................................ 39

C. Caple's Motions for Leave to Amend the Amended Petition ......................................... 44

D. Caple is Not Entitled to a Certificate of Appealability ................................................... 46

V CONCLUSION .............................................................................................................. 46

OPINION

Slomsky, J.

I. INTRODUCTION

Before the Court is the pro se Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Petitioner Frank Caple ("Caple"), a state prisoner incarcerated at the Lackawanna County Prison in Scranton, Pennsylvania.¹ In the Amended Petition, Caple brings a Fourth Amendment evidentiary claim and a Sixth Amendment ineffective assistance of counsel claim.

On December 4, 2017, Magistrate Judge Jacob P. Hart issued a Report and Recommendation ("R&R"), recommending that Caple's Fourth Amendment claim be dismissed without prejudice and that a certificate of appealability not be issued. (Doc. No. 11.) On December 13, 2017, Caple filed a Reply to the R&R, which raised a single Objection: that the R&R did not address his Sixth Amended ineffective assistance of counsel claim. (Doc. No. 12.) Upon review of the R&R, this Court found that Caple was right and that the Magistrate Judge had inadvertently missed the ineffective assistance of counsel claim. For that reason, the Court recommitted the case back to the Magistrate Judge for a second R&R. (Doc. Nos. 19, 20.)

On October 10, 2018, Magistrate Judge Hart issued a second R&R, recommending that the Court dismiss Caple's ineffective assistance of counsel claim.² (Doc. No. 22.) On October 31,2018, Caple filed a Reply to the second R&R, in which he raised two Objections. (Doc. No. 23.) Then, on November 19, 2018, Caple filed a Motion for Leave to Amend the Amended Petition, to which he attached the proposed amended petition. (Doc. No. 25.) On November 28, 2018, Caple filed another Motion for Leave to Amend the Amended Petition, this time attaching a proposed amended memorandum of issues and authority in support of his proposed amended petition. (Doc. No. 26.) Finally, on January 11, 2019, Caple filed a Motion Requesting Leave for a Stay in Abeyance So Petitioner May Exhaust Some Issues.³ (Doc. No. 28.) Respondents have not filed a Response to the Objections, the Motions to Amend the Amended Petition, or the Motion Requesting Leave for a Stay.

The Amended Petition and the related Motions are now ripe for disposition. For reasons discussed below, the Court will deny Caple's Amended Petition for Writ of Habeas Corpus (Doc. No. 7), Caple's Motions for Leave to Amend the Amended Petition (Doc. Nos. 25, 26), and Caple's Motion Requesting Leave for a Stay (Doc. No. 28).⁴

II. BACKGROUND

A. Petitioner Frank Caple's State Court Conviction

On February 16, 2013, several police officers from the Pottstown Police Department were dispatched to respond to a 911 call from Cicely McCarty, a woman who had reported that she had been assaulted by a black man named "Flip" in Room 115 of America's Best Value Inn in Pottstown (the "Inn"), which is located in Montgomery County, Pennsylvania. (Doc. No. 17-104 at 5.) When the officers arrived at the Inn, neither McCarty nor Flip were in Room 115. (Id.)

After questioning witnesses at the scene, the officers learned that Flip had an additional room at the motel—Room 215, which was registered to Sean Caple.⁵ (Id.) At that point, officers went to Room 215, knocked on the door, and announced themselves, but no one answered. Worried that McCarty was inside, the officers asked the motel manager to open the door, which he did. Inside Room 215, Officer Jonathan Gallagher found a woman named Gail Benedetto hiding in the bathroom, but did not find McCarty or Flip. He also observed two metal crack pipes in plain view on the bedroom dresser. (Id.) Soon thereafter, Officer Gallagher heard over the police radio that officers had located McCarty and were transporting her to the police station. (Id.)

Due to the presence of the crack pipes, Officer Gallagher applied for and obtained a warrant to search Room 215. During the execution of the search warrant, officers found quantities of drugs and drug paraphernalia. (Id. at 5-6.) Officers also found a stack of business cards that said "Flip Entertainment" and a Western Union receipt bearing the name "Frank Caple" in a backpack in Room 215. (Id.)

Meanwhile, police officers at the Pottstown Police Station took McCarty's statement. She told the police that the man who assaulted her was known as either "Flip" or "Frank." (Id. at 3-4.)Because the police had found the Western Union receipt bearing Caple's name in Room 215, the police then showed McCarty a photo array of suspects which included Caple. McCarty selected Caple's photo and identified him as the man who had assaulted her. (Id. at 6.)

Following the identification, the Pottstown police filed a criminal complaint against Caple, which contained the following charges: (1) possession of a controlled substance with intent to deliver; (2) simple possession of a controlled substance; (3) possession of drug paraphernalia; (4) simple assault; and (5) harassment. (Id. at 1-4.) On March 12, 2013, Caple was arrested. (Doc. No. 17-102 at 4.)

On May 29, 2013, Caple filed an omnibus suppression motion to exclude evidence found in Room 215 of the Inn. Through his attorney, Carol Sweeney, Esquire, Caple argued that (1) all evidence seized from Room 215 should be suppressed because the initial entry by the police was warrantless and violated the Fourth Amendment, and (2) the Western Union receipt bearing Caple's name should be suppressed because it exceeded the scope of the warrant and its seizure did not fall within an exception to the Fourth Amendment warrant requirement. (Doc. No. 17-99.) On December 10, 2013, after a suppression hearing, the trial court denied the motion. (Doc. No. 17-83.) On December 17, 2013, following a three-day jury trial in the Court of Common Pleas for Montgomery County, Caple was convicted of possession of a controlled substance, possession of drug paraphernalia, and simple assault. (Doc. No. 17-13 ¶ 2.) On June 4, 2014, Caple was sentenced to four (4) to twenty (20) years' imprisonment. (Id. ¶¶ 3-4.)

B. Caple's Direct Appeal and Resentencing

On August 18, 2014, Caple filed a timely Notice of Appeal of his conviction and sentence. (Id. ¶ 9.) On appeal, he was represented by Montgomery County Public Defenders Christa A. Miller, Esquire, and Timothy P. Wile, Esquire. On September 21, 2014, pursuant to PennsylvaniaRule of Appellate Procedure 1925(b),⁶ Caple's attorneys filed with the trial court a Concise Statement of Matter Complained of on Appeal ("Rule 1925(b) Statement"). Caple's attorneys raised seven issues in the Rule 1925(b) Statement, including the following: (1) the trial court abused its discretion by denying his suppression motion because the initial entry by the police into Room 215 was warrantless; (2) the trial court abused its discretion by denying his suppression motion because the Western Union receipt was beyond the scope of the warrant and its seizure did not fall into an exception to the Fourth Amendment warrant requirement; and (3) the trial court imposed an unconstitutional mandatory minimum sentence. (Id...