IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WILLIAM LANTANASIO, )

)

Petitioner, )

)

v. ) Civil Action No. 05-197 Erie

) JUDGE SEAN McLAUGHLIN

JEFFREY BEARD, et al., ) MAGISTRATE JUDGE BAXTER

)

Respondents. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is recommended that the Petition for Writ of Habeas Corpus be denied and that a certificate

of appealability be denied.

II. REPORT

This is a petition for writ of habeas corpus filed on June 23, 2005, by a state prisoner presently

incarcerated within the state correctional system. In his petition, Petitioner raises the following issues

before this Court, verbatim: 

I. Denial of effective assistance of counsel. Counsel failed to explore the

possibility of a defense based on Petitioner’s cultural background and IQ.

Petitioner is from Sudan, where sex with someone under 18 is not a crime and

the Petitioner has a below average IQ. Counsel refused to consider a diminished

capacity defense or to investigate the fact that the “victim” in this case is actually

over the age of 18.

II. Denial of Petitioner’s right of appeal. Counsel failed to pursue an appeal of this

matter to the Pennsylvania Supreme Court before deadline to do so. When the

Petitioner’s meritorious issues were denied by the Pennsylvania Superior Court,

counsel, for all practical purposes abandoned this case and because of the

aforementioned below average IQ and the fact that the Petitioner is a recent

arrival to the United States and knows nothing about it’s laws he was unable to

pursue an appeal on his own. 

See Petition, Document # 3. 

Case 1:05-cv-00197-MBC-SPB Document 12 Filed 08/09/06 Page 1 of 7
1 Although untimely, Petitioner’s appellate rights were reinstated.

2 The Commonwealth did not produce this letter as part of the State Court Record. 

2

The Commonwealth has responded to the petition and it is now ripe for disposition by this

Court.

A. Procedural history.

At Docket Number 247 of 2003 in the Court of Common Pleas of Erie County, Petitioner was

charged with Rape, Statutory Sexual Assault, Sexual Assault, Indecent Assault and Corruption of

Minors. Petitioner was represented by Attorney Jack Grayer. On April 1, 2003, Petitioner pled guilty

to Statutory Sexual Assault and Corruption of Minors and the other charges were withdrawn. On May

16, 2003, Petitioner was sentenced to an aggregate term of imprisonment of thirty-two to eighty-four

months incarceration. 

Petitioner, represented by Attorney Deanna Heasley, filed a direct appeal to the Pennsylvania

Superior Court on January 14, 2004.1 In the appeal, Petitioner challenged the sentence as excessive.

On July 9, 2004, the Superior Court affirmed Petitioner’s sentence. Petitioner did not appeal to the

Pennsylvania Supreme Court.

On August 17, 2004, Petitioner, acting pro se, filed a PCRA petition. Attorney William

Hathaway was appointed to represent Petitioner and he filed a supplement to the PCRA petition.

Among other things, Petitioner alleged that trial counsel was ineffective for not raising a defense based

upon Petitioner’s nationality and low IQ. In November of 2004, the trial court denied Petitioner’s

request for PCRA relief. Petitioner did not file an appeal to the Pennsylvania Superior Court. 

Attached to his petition, Petitioner has included a letter dated April 11, 2005 to him from

Attorney Hathaway.2 In pertinent part, the letter reads:

I did not in fact file an appeal from the denial of your PCRA petition. In reviewing my

case file, I note that Judge DiSantis issued a Notice of Intent to Dismiss and Opinion on

November 12, 2005. I believe that I forwarded a copy of this to you. Thereafter, on

December 15, 2005, you indicated your desire to pursue an appeal from the denial of the

PCRA. I did not file an appeal, which I can only attribute to my belief that the thirty day

period for an appeal had already been exhausted. However, in reviewing this case, it is

Case 1:05-cv-00197-MBC-SPB Document 12 Filed 08/09/06 Page 2 of 7
3

evident that a final order would have been issued and the appeal period runs from that

date. Therefore, your request would have been timely and I did not duly comply with

your request.

Therefore, if you want to have your appellate rights reinstated, I would direct you to file

another PCRA and raise the issue of my failure to comply with your request to file an

appeal. I will certainly cooperate in setting forth my error. 

Document # 3, Petition, Attachment.

On April 22, 2005, Petitioner, acting pro se, filed a second PCRA petition, which was denied

by the trial court three days later. Again, Petitioner did not file an appeal to the Superior Court. 

Thereafter, Petitioner filed the instant petition for writ of habeas corpus. 

B. Exhaustion and procedural default.

The first issue in any habeas corpus proceeding instituted by a state prisoner is whether the

petitioner has exhausted his state court remedies. Exhaustion requires that the claims presented in the

federal court have been presented in substantially the same form to the state's highest court, with

identity of both facts and legal theory. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989). Even if the

claims have been so presented to the state's highest court, "[a]n applicant shall not be deemed to have

exhausted the remedies available in the courts of the State . . . if he has the right under the law of the

State to raise, by any available procedure, the question presented." 28 U.S.C. §2254(c); Castille v.

Peoples, 489 U.S. 346 (1989). And, although the requirement is not jurisdictional, it "should be strictly

adhered to because it expresses respect for our dual judicial system and concern for harmonious

relations between the two adjudicatory institutions." Landano v. Rafferty, 897 F.2d 661, 669 (1990).

The requirement also recognizes the duty, and ability, of the state courts to uphold federal law, and

serves the interest of ensuring a fully developed record in the state court. Id. "[S]tate prisoners must

give the state courts one full opportunity to resolve any constitutional issues by invoking one complete

round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845

Case 1:05-cv-00197-MBC-SPB Document 12 Filed 08/09/06 Page 3 of 7
3 The Pennsylvania Supreme Court’s Order No. 218, issued May 9, 2000, provides that a criminal

defendant shall not be required to petition for an allowance of appeal following an adverse decision by

the Superior Court in order to be deemed to have exhausted all available state remedies for purposes

of federal habeas corpus review. Federal courts within this Circuit have consistently applied the

Pennsylvania Supreme Court’s Order. 

4

(1999).3 Finally, a federal habeas court is required to dismiss a petition which contains both exhausted

and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982); Landano v. Rafferty, supra.

Here, Petitioner has not presented either of his claims to the Superior Court. Thus, state court

remedies have not been exhausted. At this point, though, Petitioner does not possess any means of

obtaining review of his unexhausted claims in the state courts since a new PCRA petition would be

untimely. See 42 Pa.C.S.A § 9545. 

However, Petitioner’s failure to exhaust may be excused. “If a claim has not been fairly

presented to the state courts but further state-court review is clearly foreclosed under state law,

exhaustion is excused on the ground of futility. See, e.g., Lines v. Larkins, 208 F.3d 153, 160 (3d

Cir.2000); Toulson v. Beyer, 987 F.2d 984, 987-88 (3d Cir.1993).” Wenger v. Frank, 266 F.3d 218,

223 (3d Cir. 2001). Like the exhaustion requirement, the procedural default doctrine is based upon

notions of comity and federalism. The procedural default barrier rests upon the "independent and adequate state grounds" doctrine, which dictates that federal courts will not review a state court decision

involving a question of federal law if the state court decision is based on state law that is "independent"

of the federal question and "adequate" to support the judgment. Coleman v. Thompson, 501 U.S. 722,

750 (1991). 

A state's procedural rules are entitled to deference by federal courts, and violation of a state

procedural rule may constitute an independent and adequate state ground for denial of federal review

of habeas claims. Coleman v. Thompson, 501 U.S. at 750. Violations of a state's procedural rules may

constitute an independent and adequate state ground sufficient to invoke the procedural default doctrine

even where no state court has concluded that a petitioner is procedurally barred from raising his claims.

Glass v. Vaughn, 65 F.3d 13, 15 (3d Cir. 1995), cert. denied, 116 S.Ct. 1027 (1996).

Case 1:05-cv-00197-MBC-SPB Document 12 Filed 08/09/06 Page 4 of 7
4 Neither Petitioner nor Respondent specifically address this issue.

5

Federal habeas review is not available to a petitioner whose constitutional claims have not been

addressed on the merits due to procedural default unless such petitioner can demonstrate: 1) cause for

the default and actual prejudice as a result of the alleged violation of federal law; or 2) failure to

consider the claims will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S.

446, 451 (2000); Coleman v. Thompson, 501 U.S. at 750.

To satisfy the cause standard, Petitioner must demonstrate that some objective factor external

to the defense impeded his efforts to raise the claim in state court. McCleskey v. Zant, 499 U.S. 467,

493 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). Neither a deliberate strategic decision nor

an inadvertent failure of counsel to raise an issue constitutes "cause" unless counsel's performance failed

to meet the Sixth Amendment standard for competent assistance. Engle v. Isaac, 456 U.S. 107 (1982);

Carrier, 477 U.S. at 485-87. 

It is possible that the ineffective assistance of counsel can constitute cause for a procedural

default. However, such a claim of ineffective assistance must be presented to the state courts as an

independent claim and exhausted before it may be considered by the federal courts. Edwards, 529 U.S.

at 452 (ineffective assistance claim must first “be presented to the state courts as an independent claim

before it may be used to establish cause for a procedural default.”). Here, it appears from the record

before this Court4 that Petitioner attempted to raise such a claim by way of filing the second PCRA (at

the suggestion of former counsel) in the state courts in an effort to exhaust it. However, after the trial

court denied PCRA relief, Petitioner did not file an appeal to the Superior Court. Therefore, the

ineffective assistance of PCRA counsel cannot serve as the cause in order to excuse the procedural

default of Petitioner’s claims. 

Although Petitioner cannot demonstrate the necessary "cause" and "prejudice," this Court may

still review his claims if he can show that a "fundamental miscarriage of justice would result from a

failure to entertain the claim." McCleskey, 499 U.S. at 495. This Court may use its discretion to correct

a fundamental miscarriage of justice if it appears that a "constitutional violation probably resulted in

the conviction of one who is actually innocent." Murray, 477 U.S. at 496. See also Coleman, 501 U.S.

Case 1:05-cv-00197-MBC-SPB Document 12 Filed 08/09/06 Page 5 of 7
6

at 748; McCleskey, 499 U.S. at 502. Under the "miscarriage of justice" standard, a petitioner must

present new evidence of innocence and persuade the district court that, in light of the new evidence, no

juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. Schlup v.

Delo, 513 U.S. 298, 329-30 (1995); Glass, 65 F.3d at 15. This is a stronger showing than is required

to establish prejudice and is found only in a truly "extraordinary" case. Schlup, 513 U.S. at 321. To

succeed on an actual innocence claim, a petitioner must invoke "reliable evidence not presented at trial"

Calderon v. Thompson, 523 U.S. 538, 559 (1998), and "show that it is more likely than not that no

reasonable juror would have convicted him in light of new evidence presented in his habeas petition"

Schlup, 513 U.S. at 327. See also House v. Bell, ___ U.S. ___, 126 S.Ct. 2064 (June 12, 2006). 

Petitioner has not made any showing of his innocence as he must do in order to overcome the

procedural default of his claims. Petitioner has not met the Schlup standard, and therefore he is not

entitled to the miscarriage of justice exception. 

Accordingly, Petitioner's claims are barred from federal habeas review due to procedural default.

C. Certificate of Appealability

Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253(as

amended)) codified standards governing the issuance of a certificate of appealability for appellate

review of a district court’s disposition of a habeas petition. Amended Section 2253 provides that “[a]

certificate of appealability may issue ... only if the applicant has made a substantial showing of the

denial of a constitutional right.” Where the federal district court has rejected a constitutional claim on

its merits, “the petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong...” Szuchon v. Lehman, 273 F.3d 299, 312

(3d Cir. 2001) quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). A petitioner meets this standard

if he can show that the issue “is debatable among jurists, or that a court could resolve the issue

differently, or that the question deserves further proceedings.” McCracken v. Gibson, 268 F.3d 970,

Case 1:05-cv-00197-MBC-SPB Document 12 Filed 08/09/06 Page 6 of 7
7

984 (10th Cir. 2001). Under 28 U.S.C. § 2253(c)(3), the district court must identify which specific

issues satisfy the standard.

As Petitioner has not met this standard, a certificate of appealability should be denied.

III. CONCLUSION

Wherefore, on the basis of the foregoing, it is respectfully recommended that the instant

petition for writ of habeas corpus be denied and that a certificate of appealability be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of

service to file written objections to this Report and Recommendation. Any party opposing the

objections shall have seven (7) days from the date of service of objections to respond thereto. 

Failure to file timely objections may constitute a waiver of any appellate rights.

 

 /s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

CHIEF UNITED STATES MAGISTRATE JUDGE

Dated: August 8, 2006

Case 1:05-cv-00197-MBC-SPB Document 12 Filed 08/09/06 Page 7 of 7