1 A nolle prosequi was entered on the charge of persons not

to possess firearms. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN PEREZ LEON, : CIVIL ACTION

Petitioner, :

:

v. :

:

L.P. BENNING, et al., :

Respondents. : No. 02-CV-4267

MEMORANDUM AND ORDER

J. M. KELLY, J. FEBRUARY , 2003

Presently before the Court is the Report and Recommendation

issued by Magistrate Judge M. Faith Angell (“Judge Angell”), to

which no objections have been filed by habeas corpus Petitioner

John Perez Leon (“Leon”). On May 10, 1999, Leon was tried before

a jury in the Court of Common Pleas of Lancaster County (“Court

of Common Pleas”) for various state law violations in connection

with an incident wherein a person was robbed at gunpoint and

shot. Specifically, Leon was charged with: (1) Robbery; (2)

Aggravated Assault; (3)Firearms Not To Be Carried Without a

License; and (4) Persons Not To Possess Firearms. On the second

day of trial, after the Commonwealth of Pennsylvania had

presented some of its witnesses, Leon tendered a negotiated

guilty plea to the charges of robbery, aggravated assault and

firearms not to be carried without a license.1 Pursuant to the

plea agreement, Leon was sentenced to a term of imprisonment for

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2 See 42 Pa. Stat. §§ 9541-46.

2

an aggregate of not less than five years and no more than 12

years. Leon did not file a direct appeal, but, rather, on

September 27, 1999, initiated a pro se petition for relief under

Pennsylvania’s Post Conviction Collateral Relief Act (“PCRA”)2

alleging that his attorney’s ineffective representation induced

him to enter into an unknowing and involuntary plea. Specially,

Leon contended that his attorney at trial failed to notify him

that scheduled alibi witnesses were available to testify, and

maintained that counsel did not adequately cross-examine

Commonwealth witnesses. 

On July 27, 2000, the Court of Common Pleas denied Leon

relief under the PCRA, prompting him to appeal his ineffective

counsel claims to the Superior Court of Pennsylvania (“Superior

Court”). On April 25, 2002, the Superior Court determined that

Leon’s claims of ineffective assistance of counsel lacked

arguable merit and affirmed the judgment of the Court of Common

Pleas. Leon did not seek allocator to the Pennsylvania Supreme

Court, but, on June 24, 2002, filed the instant petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254.

We agree with the analysis presented and conclusions drawn

in Judge Angell’s Report and Recommendation and must therefore

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3 Section 2254(b) states, in pertinent part,:

An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State

court shall not be granted unless it appears that-- 

 (A) the applicant has exhausted the remedies 

 available in the courts of the State. . .

28 U.S.C. § 2254 (b)(1)(A).

4 Order 218 provides: 

AND NOW, this 9th day of May, 2000, we hereby recognize

that the Superior Court of Pennsylvania reviews

criminal as well as civil appeals. Further, review of

a final order of the Superior Court is not a matter of

right, but of sound judicial discretion, and an appeal

to this Court will only be allowed when there are

special and important reasons therefor. Pa.R.A.P.

1114. Further, we hereby recognize that criminal and

post-conviction relief litigants have petitioned and do

3

deny Leon’s request for habeas relief. As a preliminary matter,

we acknowledge that although Leon did not pursue an appeal of his

PCRA claim to the Pennsylvania Supreme Court, he properly

exhausted the remedies available in the state courts as required

by 28 U.S.C. § 2254(b).3 Petitioners seeking habeas relief in

the federal courts traditionally must first present all

constitutional claims to the highest state tribunal. However, on

May 9, 2000, the Superior Court issued Order 218, which dispensed

with the requirement of pursuing discretionary appellate relief

before the Pennsylvania Supreme Court and provided that a

petitioner has effectively exhausted available state remedies for

purposes of federal habeas relief upon presenting the claim to

the Superior Court.4 See Wenger v. Frank, 266 F.3d 218, 224-

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routinely petition this Court for allowance of appeal

upon the Superior Court's denial of relief in order to

exhaust all available state remedies for purposes of

federal habeas corpus relief. 

In recognition of the above, we hereby declare that in

all appeals from criminal convictions or postconviction relief matters, a litigant shall not be

required to petition for rehearing or allowance of

appeal following an adverse decision by the Superior

Court in order to be deemed to have exhausted all

available state remedies respecting a claim of error.

When a claim has been presented to the Superior Court,

or to the Supreme Court of Pennsylvania, and relief has

been denied in a final order, the litigant shall be

deemed to have exhausted all available state remedies

for purposes of federal habeas corpus relief. This

Order shall be effective immediately.

See In re: Exhaustion of State Remedies in Criminal and PostConviction Relief Cases, No. 218 Judicial Administration Docket

No. 1 (Pa. May 9, 2000) (per curiam). 

4

25 (3d Cir. 2001), cert. denied, Wenger v. Kyler, 535 U.S. 957

(2002); Lambert v. Blackwell, 175 F. Supp. 2d 776, 784-85 (E.D.

Pa. 2001); Mattis v. Vaughn, 128 F. Supp. 2d 249, 260-61 (E.D.

Pa. 2001); Blasi v. Attorney General of the Commonwealth of

Pennsylvania, 120 F. Supp. 2d 451, 466 (M.D. Pa. 2000). We find

that since Order 218 applies, Leon’s ineffectiveness of counsel

claims presented on PCRA appeal to the Superior Court are

technically exhausted for federal habeas purposes. 

In his petition for habeas relief, Leon maintains an

ineffective assistance of counsel claim grounded on two

allegations. First, Leon contends that his attorney, during the

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5 Since Leon’s habeas petition was filed after AEDPA’s

effective date, its provisions govern our review. AEDPA provides

that federal habeas relief should not be granted on a claim that

was decided on the merits in the State court unless the

adjudication of the claim: 

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). 

5

trial, incorrectly informed him that his alibi witnesses were

unavailable to testify, when, in fact, they were present in the

courthouse and able to testify. We agree with Judge Angell’s

conclusion that, under the standards set forth in the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),5

the Superior Court’s decision was neither “contrary to” nor an

“unreasonable application” of United States Supreme Court

precedent. 

Under the two-prong Strickland v. Washington standard, a

petitioner must demonstrate that (1) counsel’s performance was

“deficient,” in that it fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the

petitioner. See 466 U.S. 668, 687 (1984). To establish

prejudice, the petitioner must demonstrate a reasonable

probability that, but for the inadequate representation, the

result would have been different. See id. at 694. The Superior

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6

Court maintained that Leon could only challenge the validity of a

guilty plea on the basis of an ineffective assistance of counsel

claim provided the ineffective counsel caused an involuntary or

unknowing plea. We agree with the Superior Court’s belief that

neither prong of the Commonwealth’s equivalent of the Strickland

standard was met, and, conclude that its decision was within the

bounds of reasonableness. See Bowen v. Blaine, Civ. A. No. 00-

4498, 2003 U.S. Dist. LEXIS 2053, at *37 (E.D. Pa. Feb. 5, 2003). 

Since the Superior Court’s decision is neither contrary to, nor

an unreasonable application of, federal law, we conclude that

Leon is not entitled to habeas relief on this ground. 

Second, Leon asserts that his attorney failed to crossexamine Commonwealth witnesses adequately. However, Leon fails

to point to any evidence to support this claim. Moreover, even

had Leon provided this Court with some proof of his attorney’s

substandard cross-examination of Commonwealth witnesses, Judge

Angell is correct in determining that since this issue was

rejected by the Superior Court on an adequate and independent

state procedural rule, it is not properly reviewable for federal

habeas relief. Although Leon presented this claim in his PCRA

petition, the Superior Court stressed that inadequately briefed

issues are ineligible for appellate review and summarily refused

to reach the merits of Leon’s “wholly undeveloped”

ineffectiveness of counsel claim. See Commonwealth of

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7

Pennsylvania v. Leon, No. 1446 MDA 2000 (Pa. Super. Ct. 2002). 

Pursuant to Pennsylvania Rule of Appellate Procedure 2101,

Pennsylvania state appellate courts have routinely quashed

appeals for the petitioner’s failure to include “material

sections of the brief which facilitate appellate review.” See

Pennsylvania v. Drew, 510 A.2d 1244, 1245-46 (Pa. Super. Ct.

1986) (listing cases that rely on Rule 2101 to quash appeals for

noncompliance). Since the Superior Court rejected this

ineffective assistance of counsel claim on a state procedural

ground, Leon’s allegation that his attorney failed to crossexamine Commonwealth witnesses adequately is procedurally

defaulted. In order to overcome a procedural default, a habeas

petitioner must demonstrate cause for the default and the

resulting prejudice to the petitioner, or prove that the failure

to consider the federal habeas claim constitutes a “fundamental

miscarriage of justice.” See Edwards v. Carpenter, 529 U.S. 446,

451 (2000); Wenger, 226 F.3d at 224; Bowen, 2003 U.S. Dist. LEXIS

2053, at *10; Mehta v. Walter, Civ. A. No. 00-4226, 2001 U.S.

Dist. LEXIS 11459, at *8-9 (E.D. Pa. Aug. 1, 2001). Since Leon

does not provide this Court with any evidence sufficient to

excuse this procedural default, his allegation that his attorney

failed to cross-examine Commonwealth witnesses adequately, cannot

be reviewed on federal habeas grounds. 

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Based on the reasons set forth above, it is ORDERED that the

Report and Recommendation issued by Magistrate Judge M. Faith

Angell (Doc. No. 6), to which no objections have been filed, is

APPROVED and ADOPTED and the Petition for Habeas Corpus filed by

Leon is DENIED. 

BY THE COURT:

_________________________

JAMES McGIRR KELLY, J.

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