Victor v. Varano

WILLIAM VICTOR, Petitioner

v.DAVID VARANO, et al., Respondents

CIVIL NO. 3:11-cv-2000

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Date: July 8, 2013

(JUDGE NEALON)

(MAGISTRATE JUDGE CARLSON)

MEMORANDUM

On October 27, 2011, Petitioner, William Victor, an inmate currently confined in the State Correctional Institute in Frackville, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2003 conviction and sentence in the Monroe County Court of Common Pleas. (Doc. 1). On November 14, 2012, Magistrate Judge Martin C. Carlson filed a Report and Recommendation ("R&R") finding no basis upon which to grant relief and recommending that the petition be denied. (Doc. 37). Petitioner filed objections on January 3, 2013. (Doc. 41). For the reasons set forth below, the R&R will be adopted.

Background

In the R&R, Magistrate Judge Carlson thoroughly outlines the facts and the issues of the case. See (Doc. 37, pp. 2-7). After review, this Court will adopt this section of the R&R. Accordingly, only a brief summary of the facts is presented herein.

On October 5, 2001, Petitioner, a convicted felon who had previously served ten years in New York, robbed, at gunpoint, a couple on their honeymoon in their hotel room in the Poconos. (Doc. 37, p. 2). Petitioner restrained the husband and forcefully raped the wife. (Id.). Petitioner testified at trial that he was misidentified and was innocent of the crimes. (Id. at p. 23). On January 14, 2003, Petitioner was convicted by a jury of rape, burglary, robbery, and relatedoffenses. (Id. at p. 3). He was sentenced to an aggregate prison term of 495 months to 990 months. (Id.). His conviction was affirmed on appeal. (Id.).

Petitioner subsequently filed for relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9501 et seq. (Doc. 37, pp. 3-5). Through numerous proceedings, amended PCRA petitions, and several court-appointed attorneys, Petitioner alleged, inter alia, that pre-trial and trial counsel were constitutionally ineffective for failing to investigate and present an insanity defense. PCRA relief was denied. (Id.).

On September 19, 2011, Petitioner filed a federal habeas petition in this Court under 28 U.S.C. § 2254, challenging his state court conviction. See Victor v. Varano. et al., 3:11-cv-1740 (M.D. Pa. September 19, 2011) (Nealon, J.). Notice was issued pursuant to Mason v. Meyers, 208 F.3d 414, 417 (3d Cir. 2000), and United States v. Miller, 197 F.3d 644, 649 (3d Cir. 1999), of the limitations on filing another habeas petition in the future, and Petitioner was afforded an opportunity to withdraw his petition without prejudice to file an all-inclusive petition. Victor, 3:11-cv-1740 at (Doc. 3). On October 6, 2011, Petitioner returned the notice of election form indicating that he wished to withdraw his petition. Id. at (Doc. 11). Accordingly, the habeas petition was dismissed without prejudice and the case was closed. Id. at (Docs. 12-14).

The instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed on October 24, 2011, in the above-captioned case. (Doc. 1). Petitioner alleges that trial and appellate counsel were ineffective for failing to investigate and pursue an insanity or diminished capacity defense, that his PCRA attorneys were ineffective and abandoned him, that the trial court judge wrongfully issued consecutive sentences for duplicate charges, and that the trial court unconstitutionally excluded African Americans from the jury panel. (Doc. 1, pp. 1-16). Out ofan abundance of caution, the Court again issued the Miller-Mason notice. (Doc. 4). Petitioner was advised that if he failed to timely return this Court's notice of election form, the petition would be ruled on as filed under 28 U.S.C. § 2254. (Id.). After the time expired for Petitioner to return the form, the Court served the habeas petition and directed a response. See (Doc. 10).

After the matter was fully briefed, on November 14, 2012, Magistrate Judge Carlson issued an R&R. (Doc. 37). The Magistrate Judge concludes that Petitioner's claims that his attorneys were ineffective for failing to investigate an insanity or diminished capacity defense are without merit. (Id. at pp. 14-25). Second, the Magistrate Judge finds that Petitioner's challenge to his sentence is procedurally barred and is without merit. (Id. at pp. 25-29). Third, Magistrate Judge Carlson determines that Petitioner's arguments regarding the racial composition of the jury panel are procedurally defaulted and meritless. (Id. at pp. 29-31). Accordingly, the R&R recommends that the habeas petition be denied. (Id. at p. 31). On January 3, 2013, Petitioner filed objections. (Doc. 41).

Standard of Review- R&R

When objections to a Report and Recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) ("providing a complete de novo determination where only a general objection to the report is offered would undermine the efficiency the magistrate system was meant to contribute to the judicial process"); Mutombo v. Carl, 2003 U.S. Dist. LEXIS 27124 (M.D. Pa. 2003) (Kane, J.). Conversely, when neither party objects, the district court is not statutorily required to review the R&R under de novo or any other standard.Thomas v. Arn, 474 U.S. 140, 152 (1985); 28 U.S.C. § 636(b)(1)(C); accord Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (holding that it is better practice to afford some level of review to dispositive legal issues raised by the report), writ denied, 484 U.S. 837 (1987). In the absence of objections, review may properly be limited to ascertaining whether there is clear error that not only affects the rights of the plaintiff, but also seriously affects the integrity, fairness, or public reputation of judicial proceedings. Cruz v. Chater, 990 F. Supp. 375, 377 (M.D. Pa. 1998) (Vanaskie, J.); Garcia v. I.N.S., 733 F. Supp. 1554, 1555 (M.D. Pa. 1990) (Kosik, J.) (stating, "the district court need only review the record for plain error or manifest injustice"). The district court may accept, reject, or modify, in whole or in part, the findings and recommendations contained in the report. 28 U.S.C. § 636(b)(1)(C); Local Rule 72.3.

Standard of Review- Ineffective Assistance of Counsel¹

To establish counsel's ineffectiveness, a petitioner must show: (1) counsel's performance fell below an objective standard of reasonableness; and (2) the performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668 (1984). There is a strong presumption that counsel is effective and the courts, guarding against the temptation to engage in hindsight, must be "highly deferential" to counsel's reasonable strategic decisions. Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002), cert. denied, 538 U.S. 911 (2003). The mere existence of alternative, even more preferable or more effective, strategies does not satisfy the first prong of the Strickland test. Id. at 86. To establish prejudice under the second prong, the petitioner must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Roe v. Flores-Ortega, 528 U.S. 470, 482(2000) (quoting Strickland, 466 U.S. at 694). It is not necessary for the court to "guarantee each defendant a perfect trial with optimally proficient counsel, but rather to guarantee each defendant a fair trial, with constitutionally competent counsel." Id. at 85. Additionally, there is a "doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard." Knowles v. Mirzayance, 556 U.S. Ill, 123 (2009) (rejecting the state prisoner's claim that counsel was ineffective for abandoning an insanity defense), citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003). "The question 'is not whether a federal court believes the state court's determination' under the Strickland standard 'was incorrect but whether that determination was unreasonable --a substantially higher threshold.'" Knowles, 556 U.S. at 123 (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). The court must consider the totality of the evidence and the burden is on the petitioner. Strickland, 466 U.S. at 687, 695.

Discussion

Magistrate Judge Carlson begins the R&R with an explanation of the legal standards a state prisoner must satisfy to obtain habeas relief. (Doc. 37, pp. 8-13) (quoting 28 U.S.C. § 2254 (a) and (b)). Substantively, "habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a 'fundamental defect which inherently results in a complete miscarriage of justice' or was completely inconsistent with rudimentary demands of fair procedure." (Id. at p. 9) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). Procedurally, a state prisoner must exhaust his claim in the state courts before seeking federal review. (Id. at pp. 9-11). The Magistrate Judge details the doctrine of procedural default. (Id. at pp. 11-13). Specifically,

A procedural default occurs when a prisoner's federal claim is barred fromconsideration in the state courts by an 'independent and adequate' state procedural rule. Federal courts may not consider the merits of a procedurally defaulted claim unless the applicant establishes 'cause' to excuse the default and actual 'prejudice' as a result of the alleged violation of the federal law or unless the applicant demonstrates that failure to consider the claim will result in a fundamental 'miscarriage of justice.'

(Doc. 37, p. 12), quoting Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). See also Marinelli v. Beard, 2012 U.S. Dist. LEXIS 169705, *25 (M.D....