IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN PEREZ LEÓN : CIVIL ACTION

 [DY-2179] :

:

 v. :

 :

L.P. BENNING, et al. : NO. 02-4267

O R D E R

AND NOW, this day of , 2003, 

upon consideration of the pleadings and the record herein, and after review of the Report and

Recommendation of M. Faith Angell, United States Magistrate Judge, it is hereby ORDERED

that:

1. The Report and Recommendation is APPROVED AND ADOPTED.

2. The Petition for Writ of Habeas Corpus is DENIED AND DISMISSED 

WITHOUT AN EVIDENTIARY HEARING.

There is no probable cause to issue a certificate of appealability.

BY THE COURT:

 

 JAMES MCGIRR KELLY, J.

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 1 of 14
 

1

 The facts in this discussion have been taken from Mr. León’s habeas petition, the

Commonwealth’s response, and the state court records. 

Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN PEREZ LEÓN : CIVIL ACTION

 [DY-2179] :

:

 v. :

 :

L.P. BENNING, et al. : NO. 02-4267

REPORT AND RECOMMENDATION

M. FAITH ANGELL 

UNITED STATES MAGISTRATE JUDGE January 7, 2003

Presently before this Court is a pro se Petition for Writ of Habeas Corpus filed,

pursuant to 28 U.S.C. §2254, by a state prisoner. Petitioner is currently incarcerated at State

Correctional Institution [“SCI”] Greensburg, Pennsylvania, where he is serving a five to twelve

year sentence for robbery, aggravated assault and related offenses. For the reasons which follow,

it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed without

an evidentiary hearing.

BACKGROUND1

 On August 10, 1997, Petitioner was arrested and charged in connection with the robbery

and shooting of Jose Collazo. On May 10, 1999, a jury trial before the Honorable Michael J.

Perezous of the Lancaster County Court of Common Pleas began. On the second day of trial, 

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 2 of 14
 

2

 Attached as “Exhibit A” to the Respondents’ answer [See Docket Entry No. 5].

Page 2 of 13

before the Commonwealth had rested, Petitioner tendered a negotiated guilty plea. See N.T.

5/10/99 at 102-104; N.T. 5/11/99 at 2-25.

The proceedings were described by the trial court as follows:

“During the trial, the victim identified Petitioner as the person who robbed him at

gunpoint by stating that he could see Petitioner’s eyes through a ski mask and

could recognize his voice from having known him for many years. On May 11,

1999, during the course of the trial, Petitioner tendered a negotiated plea to the

charges of robbery, aggravated assault and firearms not to be carried without a

license. A nolle prosequi was entered on the charge of Persons not to Possess

Firearms. Simultaneously, Petitioner tendered a negotiated plea on unrelated

charges, while a nolle prosequi was entered on five other charges. Petitioner was

sentenced pursuant to the plea agreement to an aggregate sentence of not less than

five nor more than twelve years imprisonment, along with fines, the costs of

prosecution and restitution. [footnote omitted].” Commonwealth v. Leon, No.

3277 of 1997, June 27, 2000 Decision (denying request for PCRA relief) at p.1.2

Petitioner did not file a direct appeal.

On September 27, 1999, Petitioner filed a pro se petition for relief under the Post

Conviction Relief Act [PCRA], 42 Pa.C.S.A. 9541, et seq. Counsel was appointed. Mr. León

asserted two claims of ineffective assistance of counsel as grounds for collateral relief: (1) that

trial counsel was ineffective for failing to call Petitioner’s alibi witnesses to testify at his trial;

and (2) that trial counsel was ineffective for failing to properly cross-examine Commonwealth

witnesses. See Memorandum in support of PCRA Motion [Document “25” in the state court

records] at p. 4.

An evidentiary hearing was held on March 1, 2000. Petitioner, trial counsel, and an alibi

witness testified. See N.T. 3/1/00.

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3

 For the purposes of this Report and Recommendation, under the prison mailbox rule, I will

accept the earlier date, June 24, 2002, as the date of filing. See Burns v. Morton, 134 F.3d 109,

113 (3d Cir. 1998). 

Page 3 of 13

In an opinion dated June 27, 2000, the PCRA Court dismissed the collateral petition,

concluding that Petitioner’s claims of ineffective assistance of counsel lack arguable merit. See

Commonwealth v. Leon, No. 3277 of 1997, June 27, 2000 Decision (denying request for PCRA

relief) at p. 4. 

Mr. León filed a timely appeal to the Superior Court of Pennsylvania, raising the same

ineffective assistance of counsel claims. See Notice of Appeal [Document “29” in the state court

records].

The Superior Court affirmed the lower court’s dismissal of the PCRA petition. With

regard to Petitioner’s first ineffective assistance of counsel claim, the Superior Court concluded, 

applying the Commonwealth’s equivalent of the Strickland standard, that Petitioner did not

establish unreasonable conduct by trial counsel. The Superior Court declined to reach the merits

of the second ineffective assistance of counsel claim, because Petitioner had failed to include any

factual or legal predicate to support the claim. See Commonwealth v. Leon, No. 1446 MDA

2000, April 25, 2002 Opinion [Document “30” in the state court records] at pp. 4-9.

Mr. León did not seek discretionary review in the Pennsylvania Supreme Court.

On June 24, 2002, Petitioner signed and dated the instant habeas petition. It was filed in

this Court on June 27, 2002.3

 As grounds for habeas relief, Petitioner asserts the two ineffective

assistance of counsel claims presented in the PCRA forum. See Docket Entry No. 1. [attachment

to habeas form, two typed pages entitled “FACTS IN SUPPORT.”]

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4

 While the date on which the petitioner’s conviction becomes final is typically the start date

for the limitations period, the statute permits the limitation period to run from four different

points in time, depending on which occurs latest. In addition to the date on which the

petitioner’s conviction becomes final, the start date can also run from: (1) “the date on which the

impediment to filing an application created by State action in violation of the Constitution or

laws of the United States is removed, if the applicant was prevented from filing by such State

action”; (2) “the date on which the constitutional right asserted was initially recognized by the

Supreme Court and made retroactively applicable to cases on collateral review”; or (3) “the date

on which the factual predicate of the claim or claims presented could have been discovered

through the exercise of due diligence.”

There is nothing in the pleadings before me to suggest that the start date for the statute of

limitations period should be permitted to run from a point later in time than the date on which

Mr. León’s conviction became final. 

Page 4 of 13

The Respondents have answered Mr. León’s claims, arguing that Petitioner has not

exhausted his state remedies because he did not seek allocatur review in the Supreme Court of

Pennsylvania of the denial of PCRA relief. See Docket Entry No. 5. 

DISCUSSION

I. Timeliness.

The Antiterrorism and Effective Death Penalty Act of 1996 [“AEDPA” or the “Act”],

signed into law on April 24, 1996, significantly amended the laws governing habeas corpus

petitions. 

One of the amended provisions, 28 U.S.C. §2244(d), imposes a one-year statute of

limitations on state prisoners who seek federal habeas relief. A habeas petition must be filed

within one year from the date on which the petitioner’s judgment of conviction becomes final. 

See 28 U.S.C. §2244(d)(1).4

In the instant case, Mr. León’s state conviction became final on June 11, 1999, when the

deadline for filing a timely direct appeal to the Pennsylvania Superior Court expired. Petitioner’s

one year statute of limitations began to run on June 12, 1999 and was tolled, for habeas purposes,

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 5 of 14
 

5

 The exhaustion requirements of 28 U.S.C. §2254 provide:

(b) (1) An application for 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; or

(B)(I) there is an absence of available State corrective process; or

 (ii) circumstances exist that render such process ineffective to protect the

rights of the applicant.

 (2) An application for a writ of habeas corpus may be denied on the merits, 

notwithstanding the failure of the applicant to exhaust the remedies available in 

 the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or 

be estopped from reliance upon the requirement unless the State, through 

counsel, expressly waives the requirement.

( c) An applicant shall not be deemed to have exhausted the remedies available in the

courts of the State, within the meaning of this section, if he has the right under the law of

the State to raise, by any available procedure, the question presented. 

Page 5 of 13

while his state collateral attack in the PCRA forum was pending from September 27, 1999

through April 25, 2002. The present habeas petition, filed prior to the expiration of the one year

statute of limitations (on or about January 16, 2003), is timely under §2244(d)(1).

II. Exhaustion.

The exhaustion rule, codified in 28 U.S.C. §22545, requires a federal court to postpone

habeas corpus jurisdiction, absent exceptional circumstances, until “the applicant has exhausted

the remedies available in the courts of the State.” The exhaustion requirement is rooted in

considerations of comity; the statute is designed to protect the role of the state court in 

enforcement of federal law and to prevent disruption of state judicial proceedings. Rose v.

Lundy, 102 S.Ct. 1198, 1203 (1982); Castille v. Peoples, 489 U.S. 346, 349 (1989).

In order to demonstrate compliance with the exhaustion requirement, a habeas petitioner

must show that each claim which forms the basis of his federal habeas petition has been “fairly

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 6 of 14
Page 6 of 13

presented” to the State courts. Castille v. Peoples, 489 U.S. at 351 (1989); Picard v. Connor,

404 U.S. 270, 275 (1971). Absent exceptional circumstances, Petitioner must first present all of 

his constitutional claims in the state system, through the highest state tribunal, before seeking

relief in federal court. See Picard v. Connor, 404 U.S. at 275 (1971); Swanger v. Zimmerman,

750 F.2d 291 (3d Cir. 1984).

On May 9, 2000, the Supreme Court of Pennsylvania promulgated Order 218, which

reads: 

“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 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 post-conviction 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 the purposes of federal habeas corpus

relief. This Order shall be effective immediately. See Wenger v. Frank, 266 F.3d

218, 224-25 (3d Cir. 2001)(quoting Order 218), cert. denied, 122 S.Ct. 1364

(2002).

The Third Circuit has held that Order 218 does not apply retroactively to defaults which

occurred before the effective date of the Order. However, the Court has not yet addressed “the

broader question whether the filing of a petition for discretionary review with the Pennsylvania

Supreme Court is now ‘part of the ordinary appellate review procedure in the state’[. . . ].” Id. at

225 (3d Cir. 2001).

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 7 of 14
Page 7 of 13

Several district courts in this Circuit have interpreted Order 218, and have concluded that

under this Order a state prisoner need not seek discretionary review in the Pennsylvania Supreme

Court for the purposes of federal habeas exhaustion. See Lambert v. Blackwell, 175 F.Supp.2d

776, 784 (E.D.Pa. 2001); Mattis v. Vaughn, 128 F.Supp.2d 249, 260-261 (E.D.Pa. 2001); and

Riley v. Myers, 2002 WL 31845865 at *13 n.9. 

I find the analysis of these cases persuasive, and also conclude that Order 218 removes a

petition for discretionary review from the ordinary appellate state review procedure. Because

Mr. León’s failure to seek allocatur review in the Pennsylvania Supreme Court occurred after the

effective date of Order 218, the claims presented on PCRA appeal to the Pennsylvania Superior

Court are exhausted for federal habeas purposes.

III. Procedural Default.

An unexhausted habeas claim becomes procedurally defaulted when the petitioner has no

additional state remedies available to pursue the issue. See Wenger v. Frank, 266 F.3d 218, 223-

24 (3d Cir. 2001)(when a claim has not been fairly presented to the state courts, but further statecourt review is clearly foreclosed under state law, the claim is procedurally defaulted

and may be entertained in a federal habeas petition only if there is a basis for excusing the

procedural default), cert. denied, 122 S.Ct. 1364 (2002).

Procedural default also occurs when an issue is properly asserted in the state system, but

is not addressed on the merits because of an independent and adequate state procedural rule. See

Sistrunk v. Vaughn, 96 F.3d 666, 673 (1996); and McCandless v. Vaughn, 172 F.3d 255, 260 (3d

Cir.1999)(“If the final state court presented with a federal claim refuses to decide its merits based 

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 8 of 14
Page 8 of 13

on an established state rule of law independent of the federal claim and adequate to support the

refusal, federal habeas review is foreclosed unless there is cause and prejudice or a showing of

innocence.”). 

Procedural default may be excused if the habeas petitioner can show “cause” for the

default and “prejudice attributable thereto”, or demonstrate that the failure to consider his habeas

claim will result in a “fundamental miscarriage of justice.” Wenger, 266 F.3d at 224 (3d Cir.

2001). See also McCandless, 172 F.3d at 260 (3d Cir.1999).

Petitioner’s second habeas claim, ineffective assistance of counsel for failure to crossexamine Commonwealth witnesses in an adequate manner, was rejected by the Pennsylvania

Superior Court on procedural grounds. The Superior Court’s conclusion that the issue was

ineligible for review, as it was “wholly undeveloped in a brief,” is based upon an adequate and

independent state procedural rule. See Commonwealth v. Leon, No. 1446 MDA 2000, April 25,

2002 Opinion [Document “30” in the state court records] at p. 9.

This procedural default precludes federal habeas review of Petitioner’s second habeas

claim, absent a showing of “cause” and “prejudice”, or “miscarriage of justice.” Mr. León has

not argued, nor does the record before me suggest, that he can establish “cause and prejudice” or

“fundamental miscarriage of justice,” sufficient to excuse his procedural default. Absent such a

showing, this court may not proceed to the merits of the second habeas claim. 

IV. Merits Of Petitioner’s First Habeas Claim.

Petitioner’s first habeas claim, ineffective assistance of counsel for incorrectly informing

him that his alibi witnesses failed to appear for trial when, in fact, they were present at the

courthouse and available to testify, is exhausted and properly before this court for review.

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 9 of 14
 

6

 Pub.L. No. 104-132, 110 Stat. 1214, 1219 (1996), effective date April 24, 1996.

Page 9 of 13

A. Habeas Standards of Review.

Because Mr. León’s habeas petition was filed after the effective date of AEDPA6, the

amended habeas standards apply to his first habeas claim. 

AEDPA precludes habeas relief on “any claim that was adjudicated on the merits in State

court proceedings 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)(Supp. 1998).

In interpreting the above language, the Third Circuit has discussed the appropriate degree

of deference which AEDPA requires a federal habeas court to accord a state court’s construction

of federal constitutional issues and interpretation of Supreme Court precedent. See Matteo v.

Superintendent, SCI Albion, 171 F.3d 877 (3d Cir.), cert. denied, 120 S.Ct. 73 (1999). The Third

Circuit has held that under 28 U.S.C. §2254(d)(1), a two step inquiry is warranted. 

The majority agreed that: 

(1) The proper initial inquiry for the habeas court is whether the state court

decision was “contrary to” Supreme Court precedent that governs the petitioner’s

claim. Relief is appropriate only when the petitioner shows that “Supreme Court

precedent requires an outcome contrary to that reached by the relevant state

court.” Id. at 891 (3d Cir. 1999).

(2) In the absence of such a showing, the habeas court must then ask whether the

state court decision represents an “unreasonable application of” Supreme Court

precedent. This inquiry is an objective one, namely, “whether the state court

decision, evaluated objectively and on the merits, resulted in an outcome that

cannot reasonably be justified.” Matteo, 171 F.3d at 891 (3d Cir. 1999).

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Page 10 of 13

The United States Supreme Court has set forth the scope of habeas review after AEDPA. 

See Williams v. Taylor, 120 S.Ct. 1495, 529 U.S. 362 (2000). According to the Williams

majority: 

“We [the Supreme Court Justices] all agree that state-court judgments must be

upheld unless, after the closest examination of the state-court judgment, a federal

court is firmly convinced that a federal constitutional right has been violated. 

[. . . ] In sum, the [AEDPA] statute directs federal courts to attend every statecourt judgment with utmost care, but it does not require them to defer to the

opinion of every reasonable state-court judge on the content of federal law. If,

after carefully weighing all the reasons for accepting a state court’s judgment, a

federal court is convinced that a prisoner’s custody– or, as in this case, his

sentence of death– violates the Constitution, that independent judgment should

prevail.” Williams, 120 S.Ct. at 1511 (2000).

Under AEDPA, a federal reviewing court must presume that factual findings of state trial

and appellate courts are correct. The presumption of correctness may only be overcome on the

basis of clear and convincing evidence to the contrary. See Stevens v. Delaware Correctional

Center, et al., 295 F.3d 361, 368 (3d Cir. 2002).

B. The Superior Court’s Rejection of Petitioner’s Ineffective Assistance of 

Counsel Claim Is Neither Contrary To, Nor An Unreasonable Application Of, 

Federal Law.

In order for a petitioner to establish ineffective assistance of counsel under the federal

Strickland standard, he must show: [1] that counsel's performance was "deficient" and [2] that 

the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984).

To demonstrate that counsel's performance was deficient, the petitioner must show that

counsel's representation fell below an objective standard of reasonableness based on the facts of 

the particular case, viewed as of the time of counsel's conduct. Senk v. Zimmerman, 886 F.2d

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 11 of 14
Page 11 of 13

611, 615 (3d Cir. 1989)(quoting Strickland, 466 U.S. at 688, 690)), cert. denied, 493 U.S. 1035

(1990). 

To establish prejudice, the petitioner must demonstrate a reasonable probability that, but

for unprofessional errors, the result would have been different. This standard is less strict than

the 

"more likely than not" standard. Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992), cert.

denied, 507 U.S. 954 (1993). "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id. at 358 (quoting, Strickland, 466 U.S. at 694).

Because the United States Supreme Court has identified a rule which governs Petitioner’s

ineffective assistance of counsel claims, the Strickland standard “shape[s] the contours of an

appropriate analysis of a claim of constitutional error to merit review of a state court’s decision

under section 2254(d)(1)’s ‘contrary to’ prong.” Matteo, 171 F.3d at 886 (3d Cir. 1999). 

In the instant case, the Superior Court, citing §9543(a)(2)(iii) of the PCRA, noted that

claims of ineffective assistance of counsel in the context of an attack on the validity of a guilty

plea only provide a basis for collateral relief if the ineffectiveness caused an involuntary or

unknowing plea. See Commonwealth v. Leon, No. 1446 MDA 2000, April 25, 2002 Opinion

[Document “30” in the state court records] at pp. 4-5.

Applying the Commonwealth’s equivalent of the Strickland standard, the Superior Court

concluded that Mr. León did not establish unreasonable conduct by trial counsel. The Superior

Court adopted the PCRA Court’s credibility determination, accepting trial counsel’s testimony

that he did not influence Petitioner’s decision to plead guilty, and was, in fact, “stunned and

surprised” when Petitioner insisted on pleading after the Commonwealth’s first day of evidence.

The Superior Court determined that the record supported counsel’s version of Petitioner’s

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 12 of 14
Page 12 of 13

decision to abandon his defense in favor of pleading guilty, noting that counsel had preserved the

opportunity to present an alibi defense by filing the requisite notice, had interviewed alibi

witnesses and knew what their proposed testimonies would include, and had subpoenaed the alibi

witnesses for trial. Id. at pp. 5-7.

The Superior Court further determined that Petitioner did not meet the second prong of

the ineffective assistance of counsel standard. As the PCRA court found, there was no evidence

to support Petitioner’s contention that counsel would have foregone an alibi defense against his

wishes, because Mr. León pleaded guilty before the defense commenced. Id. at p. 8.

The state court’s determination as to the credibility of counsel’s version of the events is a

factual finding, and is, therefore, entitled to a presumption of correctness under AEDPA. I have

examined the Superior Court’s decision, and believe that its application of the state equivalent of

the Strickland standard is within the bounds of reasonableness. Therefore, the state court’s

rejection of Petitioner’s first ineffective assistance of counsel claim must be respected under

AEDPA. Mr. León is not entitled to habeas relief on this claim. 

Case 2:02-cv-04267-JK Document 6 Filed 01/07/2003 Page 13 of 14
Page 13 of 13

RECOMMENDATION

Consistent with the above discussion, it is recommended that Petitioner’s habeas petition,

filed under 28 U.S.C. §2254, be DENIED AND DISMISSED WITHOUT AN

EVIDENTIARY HEARING. It is further recommended a finding be made that there is no

probable cause to issue a certificate of appealability.

BY THE COURT:

 

M. FAITH ANGELL

UNITED STATES MAGISTRATE JUDGE

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