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August 14, 2012
ALEXIS A. PAUL,PETITIONER,v.RANDAL E. BRITTON, RESPONDENT
In this petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Alexis Paul ("Paul") challenges his 2004 conviction and sentence in the Court of Common Pleas of Schuylkill County, Pennsylvania on multiple drug charges and related offenses. He was sentenced, following a jury trial, to eleven years and five (5) months to twenty-two (22) years and ten (10) months in prison. Paul is confined at the State Correctional Institution at Houtzdale, Pennsylvania. The petition is ripe for consideration and, for the reasons that follow, will be denied.*fn1
I. Background
The relevant factual background of this case, as extracted from the December 19, 2007 opinion of the Pennsylvania Superior Court denying Paul's petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, is as follows:
On the morning of October 3, 2003, members of the Pottsville Police department arrived at a two-room apartment located at 825 West Market Street. The apartment was leased to Paul and the officers were seeking him in response to a domestic disturbance complaint filed by his wife. Specifically, Paul's wife claimed that Paul had displayed a handgun in her presence earlier that morning in their home also located in Pottsville.
Upon arrival at the Market Street apartment, police officers identified themselves, banged on the door and requested entry to the premises. Through a window in the door, the officers observed two males inside the apartment; however, no one opened the door at the officers' repeated requests. While waiting for the inhabitants to open the door for them, the officers heard a great deal of noise emanating from inside the apartment which sounded like furniture was being moved and rearranged. A voice from inside yelled to the officers that there was no one by the name of Alexis Paul living in that apartment and that if they wanted to enter the premises they should get a search warrant. One of the officers proceeded to City Hall to obtain a search warrant for the premise; however, while he was filling out the required paperwork, he was radioed to return to the scene because one of the apartment residents had given the police permission to enter and search the premises.
The remaining officers proceeded to enter the apartment and search for the gun. Paul opened the door, identified himself to the officers and was immediately taken into custody and arrested for the domestic violence incident. Paul gave the officers consent to search the apartment and told them that they would not find the alleged gun they claimed he brandished earlier that day.
While looking for the gun, one of the officers noticed what appeared to be fresh plaster dust on the bathroom floor. He looked up and saw a hole in the ceiling wide enough to conceal a handgun. The officer then reached into the hole, and instead of finding the gun, discovered drugs. Specifically, he found a plastic package of what he suspected to be "crack" cocaine and a separately wrapped plastic package containing a powdery substance, which he believed was powder cocaine. Still looking for the handgun, the same officer proceeded to the kitchen where he saw that the drip pan had been disassembled under the refrigerator. The officer placed his hand under the appliance and discovered additional drugs located there, including three separate plastic baggies filled with matter appearing to be marijuana and two digital scales (one with powder residue). By the door near the kitchen sink, officers examined a loose floorboard and, upon closer inspection, uncovered an additional plastic bag containing marijuana. Behind the refrigerator two clear baggies of marijuana were also found. Finally, several hundred dollars and a cellular phone were found on both Paul and the other occupant of the apartment.
As a result of uncovering the drugs in the apartment, the Commonwealth charged Paul with three counts each of possession with intent to deliver (marijuana, crack and powder cocaine) and simple possession, along with possession of drug paraphernalia and criminal conspiracy for possession with intent to deliver to the other male occupant who was 18 years old at the time. Paul filed a motion to suppress the drug evidence claiming the consent to search the apartment was invalid and challenging the applicability of the concept of constructive possession. The motion was denied.
After a consolidated jury trial, Paul was convicted on all counts; he was subsequently sentenced to 137-274 months' imprisonment, plus $40,000 in fines and restitution, with 245 days' credit for time served. The trial court denied Paul's post-sentence motion which sought modification of his sentence and a judgment of acquittal.
Paul filed a direct appeal after which this Court affirmed his judgment of sentence, save for vacating the sentence on the three counts of simple possession that should have merged for sentencing purposes with the counts of possession with intent to deliver. Paul's subsequent petition for allowance of appeal was denied by our Supreme Court. He then filed a timely pro se PCRA petition; counsel was subsequently appointed and filed an amended petition on Paul's behalf. A hearing was held on the petition; the PCRA court ultimately denied collateral relief. Counsel then sought to withdraw, pursuant to Turner/Finley,*fn2 claiming that there is no basis for pursuing an appeal. The trial court granted counsel's request to withdraw and Paul now appeals pro se. (Doc. No. 19-11 at 3-6, Commonwealth v. Paul, 1572 MDA 2006 (Pa. Super. Dec. 19, 2007.))*fn3
On December 19, 2007, the Pennsylvania Superior Court found no merit to Paul's PCRA petition, and affirmed his conviction and sentence. (Id.) A petition for allowance of appeal filed with the Pennsylvania Supreme Court was thereafter denied on July 24, 2008. (Doc. No. 19-12.) Paul now files the instant petition wherein he raises the following grounds for relief:*fn4
(1) Trial court error in failing to grant his motion to suppress the evidence uncovered from the search of the apartment;
(2) Trial court error in failing to reinstate his direct appeal rights because his appellate counsel was ineffective, was a public defender and was also his trial counsel;
(3) Denial of meaningful review of PCRA petition because counsel failed to address all issues and abandoned Paul for purposes of appeal;
(4) Ineffective assistance of trial counsel in (a) failing to move for a mistrial after a reference was made in the presence of the jury to the fact that Paul was in prison and (b) failing to move for a severance of the Defendants for trial;
(5) Illegal and excessive sentence;
(6) Denial of fair trial based upon lack of impartial jury; and
(7) Failure of the Commonwealth to establish the existence of a conspiracy.
(Doc. No. 1, Pet. at 9-11.)
II. Standard of Review
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-8; see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
A. Exhaustion
Before a federal court can review the merits of a state prisoner's habeas petition, it must determine whether the petition has met the requirements of exhaustion. Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
To satisfy the exhaustion requirement, a federal habeas petitioner must have presented the facts and legal theory associated with each claim through "one complete round of the State's established appellate review process."*fn5 O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); see also Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). The exhaustion requirement is satisfied if a petitioner's claims are either presented to the state courts directly on appeal from the judgment of sentence, or through a collateral proceeding, such as a PCRA petition. Swanger v. Zimmerman, 750 F.2d 291, 195 (3d Cir. 1984). It is not necessary for a petitioner seeking federal habeas relief to present his federal claims to state courts both on direct appeal and in a PCRA proceeding. Id. However, a petitioner is not deemed to have exhausted the remedies available to him if he has a right under the state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S. 346, 350 (1989). The petitioner bears the burden of demonstrating that he has satisfied the exhaustion requirement. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000)(citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)).
Beyond questions of exhaustion, a federal court may be precluded from reviewing claims under the "procedural default doctrine." Gray v. Netherland, 518 U.S. 152, (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996). The purpose of the procedural default rule is to prevent habeas petitioners from avoiding the exhaustion doctrine by defaulting their claims in state court. Coleman, 501 U.S. at 732.
A state's procedural rules are entitled to deference by federal courts; a petitioner's violation of a state procedural rule may constitute an independent and adequate state law ground for denial of federal review of habeas claims under the procedural default doctrine. Id. at 750. Moreover, 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 explicitly 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, 516 U.S. 1151 (1996). However, the procedural default doctrine only applies when a state procedural rule is consistently or regularly applied. Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997)(quoting Johnson v. Mississippi, 486 U.S. 578, 588-89 (1988))*fn6 . A petitioner whose constitutional claims have not been addressed on the merits due to procedural default can overcome the default, thereby allowing federal court review, if he or she can demonstrate either: (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." Coleman, 501 U.S. at 750; see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001); Lines, 208 F.3d at 166.
The United States Court of Appeals for the Third Circuit has instructed that a petition containing exhausted and unexhausted but procedurally barred claims is not a mixed petition requiring dismissal under Rose v. Lundy, 455 U.S. 509 (1982). See Wenger, 266 F.3d at 227. Instead, the Court of Appeals held that the district court should review the merits of the exhausted claims, but must not decide the merits of the claims that are barred under the procedural default doctrine. Id.
B. Merits
Once a court has determined that the exhaustion requirement is met, and therefore review of the issues presented in a habeas petition on the merits is warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). That section states, in relevant part, that exhausted claims that have been adjudicated on the merits by the state courts are subject to review under the standard of whether they are "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "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." § 2254(d)(2). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") places the burden on a petitioner to make this showing. Williams v. Taylor, 529 U.S. 362 (2000).
In a recently issued opinion, the United States Court of Appeals for the Third Circuit set forth the following description of the framework for analysis required under § 2254(d):
Consistent with Supreme Court precedent, we read § 2254(d) to require three distinct legal inquiries. See, e.g., Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). The first is whether the state court decision was "contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). The second is whether the state court decision "involved an unreasonable application of" such law. § 2254(d)(1). And the third is whether the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented" to the state court. §2254(d)(2).
The test for § 2254(d)(1)'s "unreasonable application of" clause is as follows: "[a]n 'unreasonable application' occurs when a state court 'identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts' of petitioner's case." Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456,162 L.Ed.2d 360 (2005)(quoting Wiggins v. Smith, 539 U.S. 510, 519, 520, 123 S.Ct. 2527, 156 L.2d.2d 471 (2003)). For purposes of § 2254(d)(1), "[i]t is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)(internal quotations omitted). "Under § 2254(d)(1)'s 'unreasonable application' clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 75-76, 123 S.Ct. 1166 (quoting Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Rather, "[t]he state court's application of clearly established law must be objectively unreasonable" before a federal court may grant the writ. Andrade, 538 U.S. at 75, 123 S.Ct. 1166.
The test for § 2254(d)(1)'s "contrary to" clause is whether the state court decision "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme] Court but reaches a different result." Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005)(citing Williams, 529 U.S. at 405, 120 S.Ct. 1495, and Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)). Of course, a state court's resolution of a question that the Supreme Court has not resolved can be neither contrary to, nor an unreasonable application of, the Court's precedent. See Kane v. Garcia Espitia, 546 U.S. 9, 126 S.Ct. 407, 163 L.Ed.2d 10 (2005).
The test for § 2254(d)(2)'s "unreasonable determination of facts" clause is whether the petition has demonstrated by "clear and convincing evidence," § 2254(e)(1), that the state court's determination of the facts was unreasonable in light of the record. See Rice v. Collins, 546 U.S. 333, 338-339, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.'")(quoting § 2254(e)(1))(citing Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009)("Under the § 2254 standard, a district court is bound to presume that the state court's factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence."). Importantly, the evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication. Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1401-03, ___L.Ed.2d___ (2011).
Rountree v. Balicki, 640 F.3d 530, 537-38 (3d Cir. 2011).
Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if a court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316 (1979). Only when the finding lacks evidentiary support in the state court record or is plainly controverted by evidence therein should the federal habeas court overturn a state court's factual determination. Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. 362 at 408-09.
Relief can only be granted if the petitioner shows that the state court's decision satisfies one of the three tests as set forth above in Rountree. With the above legal framework in mind, the Court will now address the claims in the instant habeas petition.
III. Analysis
A. Procedurally defaulted grounds
In the instant case, Paul has procedurally defaulted the last two (2) grounds raised in his petition. The arguments that he was denied a fair trial based upon the lack of an impartial jury and that the Commonwealth failed to establish the existence of a conspiracy were never presented in the state courts. To comply with the exhaustion requirement of 28 U.S.C. § 2254, Paul was required to present all of his federal habeas claims to the Pennsylvania courts in his direct appeal or in his PCRA proceeding. Because he failed to do so with respect to his last two grounds, this Court must determine whether he has any other available state court remedy through which he can present his unexhausted claims to the Pennsylvania courts. Under Pennsylvania law, the exclusive remedy to challenge a conviction following direct appeal is through a PCRA proceeding brought in accordance with the Post Conviction Relief Act. See 42 Pa. Cons. Stat. § 9542. Under the PCRA, a petitioner may bring a second PCRA petition only as provided for in the PCRA, as follows:
(b) Time for filing petition. -(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
(3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.
(4) For purposes of this subchapter, "government officials" shall not include defense counsel, whether appointed or retained.
42 Pa. Cons. Stat. § 9545(b). The Supreme Court of Pennsylvania has held that the PCRA's timeliness requirements are mandatory and jurisdictional in nature; thus, no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner. See, e.g., Commonwealth v. Murray, 562 Pa. 1, 5, 753 A.2d 201, 202-03 (2000); Commonwealth v. Fahy, 558 Pa. 3113, 328-29, 737 A.2d 214, 222 (1999).
Under Pennsylvania law, the only potential state remedy that Paul may pursue to raise his unexhausted claims is a second PCRA petition. In order for him to be able to file a second PCRA now, he must allege facts that meet one of the requirements set forth in § 9545(b)(1). Paul's habeas petition does not allege any of the three exceptions listed in said section. Consequently, he is precluded from presenting his unexhausted claims in a second PCRA petition based on the time limitations set forth in the PCRA. These time limitations are an independent and adequate state law ground sufficient to invoke the procedural default doctrine for purposes of federal court review. See Lines v. Larkin, 208 F.3d 153, 165 (3d Cir. 2000).
As stated previously, this federal court may not review Paul's defaulted claims unless he demonstrates cause and prejudice for his default or establishes a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). To satisfy the cause standard, a petitioner must demonstrate that some objective factor external to the defense impeded his or her efforts to raise the claim in state court. McCleskey v. Zant, 499 U.S. at 493 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). To show prejudice, a petitioner must demonstrate that the error worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions, not merely that the error created a "possibility of prejudice." Carrier, 477 U.S. at 494. Paul neither argues cause and prejudice nor the existence of a fundamental miscarriage of justice in his petition. Consequently, he is not entitled to habeas corpus relief with respect to last two (2) grounds as detailed above.
B. Trial Court's failure to grant motion to suppress
Paul challenges the trial court's denial of his motion to suppress the evidence uncovered from the search of the Market Street apartment. He claims that there was no legal consent to search, the search was not incident to arrest, coercion was involved, and that his co-defendant did not have the authority to consent to the search. This issue was not pursued by Paul in his direct appeal. However, he did raise this issue in his PCRA petition. In addressing this issue on appeal from the denial of the PCRA petition by the Schuylkill County Court of Common Pleas, the Pennsylvania Superior Court found that said issue was not cognizable under the PCRA and, because it raises a claim of trial court error, is one that should have been raised on direct appeal.
See 42 Pa. C.S.A. §§ 9542-43. (Doc. No. 19-11, 12/19/07 Pa. Super. Op.) Regardless, the appellate court found that even if the claim could be addressed on the merits, Paul would not be entitled to any relief. The record revealed that he voluntarily consented to the officers' search of the apartment where he lived with his co-defendant, he identified himself to the officers upon opening the door for them, and he told them they could search the premises and would not find a gun. Further, the record also clearly established that Paul was able to give valid consent to search in that his name was on the lease, he referred to the apartment as "his" and the unit contained his personal effects. In addition, the appellate court found that based on the record, the trial court appropriately chose to credit the testimony of Paul's arresting officers at both trial and the PCRA hearing that no coercion was utilized in obtaining Paul's consent to search.
The Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground the evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976)(footnote omitted). "The rationale for the Court's ruling was that , in the context of a federal habeas corpus challenge to a state court conviction, 'the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of the application of the rule persist with special force.'" United States v. Scarborough, 777 F.2d 175, 182 (4th Cir. 1985)(quoting Stone, 428 U.S. at 494-95). Therefore, in a habeas proceeding, when a federal district court is faced with Fourth Amendment claims, it should inquire as to whether or not the petitioner was afforded a full and fair opportunity to litigate his Fourth Amendment claim in the state court. See Deputy v. Taylor, 19 F.3d 1485, 1490 (3d Cir. 1994)(rejecting a Fourth Amendment claim because petitioner had a full and fair opportunity to litigate claim in state court, and noting that under Stone, "[e]ven otherwise potentially meritorious Fourth Amendment claims are barred on habeas when the petitioner had a full and fair opportunity to litigate them.").
It cannot be disputed that Paul had a full and fair opportunity to litigate his claim in the state court. He was able to present and argue his Fourth Amendment claims in his motion to suppress during a pre-trial hearing conducted in the Schuylkill County Court of Common Pleas on March 23, 2004. (Doc. No. 21-5, 3/23/04 Hr'g Tr.) Moreover, Paul pursued this issue in his PCRA petition before the Schuylkill County Court of Common Pleas where he was afforded an evidentiary hearing (Doc. No. 34, PCRA Tr.), as well as before the Pennsylvania Superior Court when he appealed the denial of his PCRA petition. (Doc. No. 21-4, 12/19/07 Pa. Super. Op.) As such, this claim is not cognizable in the instant habeas action.
C. Ineffectiveness of counsel
Paul also raises grounds of ineffective assistance of counsel in his petition. He first claims that trial counsel was ineffective in failing to move for a mistrial after an employee of the Public Defender's Office and an employee of the Clerk of Courts' office made reference, in the presence of the jury, to the fact that Paul was in prison. He also maintains that trial counsel was ineffective when he failed to move for a severance of his trial from that of his co-defendant's trial.
An ineffective assistance of counsel claim is governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which constitutes "clearly established Federal law" for AEDPA purposes. Williams v. Taylor, 529 U.S. 362, 391 (2000); Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 2006); Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010). A habeas petitioner asserting a claim under Strickland must establish two elements. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. In evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689. Thus, counsel's performance will be deemed deficient only if it "fell below an objective standard of reasonableness." Id. at 688. The question ultimately is "whether, in light of all the circumstances, the [challenged] acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. Reasonableness of counsel's challenged conduct on the facts of the particular case are viewed as of the time of counsel's conduct. Id. at 689-90.
"Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." Id. at 687. In determining prejudice, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695; see also Harrington v. Richter, ___, U.S. __, ___-___, 131 S.Ct. 770, 791-92, 178 L.Ed.2d 624 (2011)(the question is "whether it is 'reasonably likely' the result would have been different"). Because failure to establish either prong results in denial of a defendant's claim, a court may begin its analysis with either prong of the test. United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002).
This Court must determine whether the Pennsylvania state court applied a rule that contradicts the United States Supreme Court's standard set forth in Strickland for evaluating an ineffective assistance of counsel claim or was confronted with a set of facts materially indistinguishable from a decision of the United States Supreme Court but reached a different result.
In the instant matter, the Pennsylvania Superior Court used the following Pennsylvania standard in analyzing Petitioner's ineffective assistance of counsel claims on appeal from the denial of his PCRA petition:
To prevail on a claim of ineffectiveness, an appellant must show that his contention has arguable merit, that trial counsel's course of action had no reasonable basis designed to serve his interests, and that counsel's conduct prejudiced him.
Commonwealth v. Pirela, 580 A.2d 848, 850-51 (Pa. Super. 1990). (Doc. 19-11, Pa. Super. Op. at 8, n. 3.)
The above standard is basically identical to the Strickland test. Under Pennsylvania state jurisprudence, a three-prong test is applied to ineffective assistance of counsel claims, but is, in substance, identical to the Strickland test. Johnson, 771 A.2d at 757. While the issue of merit of an underlying claim is not a specific factor under Strickland, the United States Court of Appeals for the Third Circuit has held that requiring a showing that the underlying claim has merit is not in conflict with Strickland. Rompilla v. Horn, 355 F.3d 233, 248 n. 9 (3d Cir. 2004), reversed on other grounds, Rompilla v. Beard, 545 U.S. 374 (2005). Rather, it is considered to be a determinative factor in the "deficient performance" prong of the Strickland analysis. See Werts, 228 F.3d at 203-04. The Third Circuit Court of Appeals has held that Pennsylvania's test for assessing ineffective assistance of counsel claims is not contrary to Strickland. Jacobs v. Horn, 395 F.3d 92, 107 n. 9 (3d Cir. 2005); Werts, 228 F.3d at 204. In the instant case, the court finds that the Pennsylvania court neither applied a rule of law that contradicts Strickland, nor reached a contrary result after being confronted with facts materially indistinguishable from Strickland.
This court has determined that the Pennsylvania state court identified the correct governing legal principle with respect to Petitioner's ineffective assistance of counsel claims. As such, the relevant inquiry becomes whether the state court's decision involved an unreasonable application of Strickland or an unreasonable determination of facts in light of the record evidence at the time of the state court's adjudication. The Court will now address each of Paul's ineffectiveness claims.
1. Failure to move for mistrial
Paul claims that trial counsel was ineffective for failing to request a mistrial after a Public Defender Office employee and an employee of the Clerks Office made reference, in the presence of the jury, to the fact that Paul was in prison. It appears from the record that said individuals had a conversation about whether Paul had been give a meal that day, and whether he eats the same food as the warden. When the conversation took place, the attorneys for the parties and the trial judge were out of the courtroom. Paul alleges that this comment prejudiced him in the eyes of the jury.
On PCRA review, the Schuylkill County Common Pleas Court held that this claim was meritless. More specifically, following the PCRA hearing, the court did not believe that the jury overheard the conversation or any mention of a warden and found that even if they did, the evidence in the case was sufficient for the jury to convict Paul beyond a reasonable doubt and to support the jury's verdict. (Doc. No. 21-4 at 24, 8/1/06 PCRA Ct. Op.) In affirming the the PCRA court's holding on appeal, the Superior Court concluded that Paul failed to show whether any of the jurors actually overhead the comment and, if they did, how it prejudiced his right to a fair trial. The PCRA court also relied upon the facts that "trial counsel testified at the PCRA hearing that he polled everyone involved in and privy to this improper discussion and they all believed the jury did not hear the comments and were certain that the word 'prison' was never even used during the conversation." (Doc. No. 34 at 50-54, 85, 87.) The two employees involved in the discussion also testified at the hearing, stating that they never used the word "prison" during their conversation. (Id. at 70; Doc. No. 19-11.)
Upon reviewing the record, the state courts applied law consistent with Strickland and their findings were not contrary to or an unreasonable application of clearly established federal law, or based upon an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2). Based upon the record, there was no concern that the trial's fairness had been compromised, as there was no evidence that the jurors even overheard the comments made and, even if they did, that any prejudice to a fair trial occurred in light of the evidence supporting the jury's verdict. For these reasons, this Court will not disturb the state court's ruling, and Paul's claim on ineffective assistance of counsel will be denied.
2. Failure to move for severance of co-defendant's trial
Paul also claims that trial counsel was ineffective when he failed to move for the severance of his case from that of his co-defendant. Specifically, Paul contends that his co-defendant was charged with additional offenses that were not part of the case against Paul and that in hearing this evidence, the jury may have been influenced by it and held it against him as well. He further contends that counsel did not seek a limiting instruction to the jury with respect to this issue. (Doc. No. 2 at 29-30.)
The United States Supreme Court has instructed that there is a preference in the federal system for joint trials of defendants who are indicted together as it promotes efficiency and serves the interests of justice by avoiding the scandal and inequity of inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537 (1993). Thus, improper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial. United States v. Lane, 474 U.S. 438, 446 n. 8 (1986). With respect to joinder of defendants, the Supreme Court has further instructed:
We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a co-defendant. For example, evidence of a co-defendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. Evidence that is probative of a defendant's guilt but technically admissible only against a co-defendant also might present a risk of prejudice. Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, ... less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.
Zafiro, 506 U.S. at 539 (internal citations omitted).
Both the PCRA court and the Superior Court agreed that trial counsel had a reasonable basis for not requesting a severance. At the PCRA hearing, testimony was given by trial counsel that he had consulted with Paul regarding the issue of severing the trial, and that Paul stated he did not wish to sever the trial from that of his co-defendant. Paul hoped his co-defendant would testify that the drugs were his and not Paul's, thereby supporting Paul's defense that he was unaware of the presence of drugs in the apartment. (Doc. No. 34 at 49.) The PCRA court found counsel's testimony to support a legitimate trial strategy in light of counsel's defense that it was the co-defendant's drugs and not Paul's, and that Paul had no knowledge of the presence of drugs in the apartment. While the jury did not find this testimony credible in light of all the testimony presented, particularly in light of Paul's constructive possession of the contraband, the Court is required to examine the reasonableness of counsel's actions at the time they occurred. (Id.)
The Superior Court agreed with the PCRA court in finding a reasonable strategic basis to exist for counsel to have preferred to have a joint trial where the testimony of Paul's co-defendant may have potentially supported Paul's defense. As such, the Superior Court was unable to find trial counsel ineffective for failing to request a severance. (Doc. No. 19-11, 12/19/07 Pa. Super. Op. at 10-11.)
Neither state court found that Paul had demonstrated prejudice resulting from his counsel's failure to sever as he did not demonstrate that having his own trial would have resulted in a different verdict than the one rendered. In addition, a reasonable strategic basis was found to exist for counsel's decision, as well as overwhelming testimony presented at trial to support the verdict against Paul. Paul has failed to demonstrate that the state courts' decisions are contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. Consequently, Paul is not entitled to relief with respect to this ineffective assistance of counsel claim.
D. Trial Court Error in Failing to Reinstate Direct Appeal Rights
Another ground raised in the instant habeas petition is that Paul's direct appeal rights should have been reinstated due to the ineffectiveness of his trial/appellate counsel, a public defender who was one in the same person. He specifically contends that the trial court should have granted his numerous requests for the appointment of new counsel and reinstated his direct appeal rights. Without unnecessary elaboration, the Court finds that Paul is not entitled to have his appellate rights reinstated based upon this Court's finding that his ineffectiveness claims are without merit and, as such, any error on the part of the state court cannot be found based upon meritless claims of ineffectiveness.
E. Illegal and Excessive Sentence
In the pending habeas petition Paul also contends that the trial court abused its discretion by imposing an illegal and excessive sentence. He claims that the separate, consecutive sentences on Count 2 (PWID Crack Cocaine) and Count 3 (PWID Powder Cocaine) constitute an illegal sentence.*fn7 Specifically, he maintains that by doing so, the trial court subjected him to double jeopardy because the substances involved in each count were cocaine, and therefore should have been treated as a single act -- possession with intent to deliver cocaine. He argues that the sentences for Counts 2 and 3 should merge because they constitute the same crime.*fn8
Paul further challenges the discretionary aspects of the sentence imposed. In his opinion, the trial court abused its discretion when it failed to state sufficient reasons on the record for its aggravated range sentences with respect to Counts 1, 2 and 3 (PWID Marijuana, Crack Cocaine and Powder Cocaine). He also argues that the sentence imposed on these counts was excessive.
On direct appeal to the Pennsylvania Superior Court, Paul raised the above challenges to his sentence, as well as the claim that the trial court erred in imposing a separate sentence for counts 4, 5 and 6 (the Simple Possession Counts), claiming that said counts merged for sentencing purposes with Counts 1, 2 and 3 (the PWID counts). The Superior Court addressed each of the sentencing claims Paul raises in the instant habeas petition and found them to be without merit. The Superior Court also found that the simple possession counts merged for purposes of sentencing with the PWID counts, as the former were lesser included offenses of the latter.*fn9 The Commonwealth conceded that the trial court's imposition of additional punishments for the simple possession counts was improper and, as a result, the Superior Court ordered that the sentences for the simple possession charges be vacated. This, however, did not effect Paul's overall aggregate prison term since the sentences that had been imposed by the trial court on the simple possession charges were concurrent to the PWID sentences.
In addressing Paul's claim that the separate, consecutive sentences imposed on Counts 2 (PWID crack cocaine) and 3 (PWID powder cocaine) violate double jeopardy and therefore are illegal, the Superior Court found the law clear that both powder cocaine and crack cocaine fall within the prohibition of Schedule II substances under Pennsylvania statutory law.*fn10 (Doc. No. 19-6 at 4, 5/13/05 Pa. Super. Op.) Paul was charged with possession with intent to deliver both powder cocaine and crack cocaine. Evidence was offered at trial establishing the varying preparation, distribution and use of each of these drugs and police testimony was offered establishing that both drugs were found at Paul's residence in separate packaging. (Id.) Pursuant to state law, a PWID charge is permitted when an individual is selling powder cocaine of any type. Likewise, the law further allows a PWID charge in the event an individual is selling crack cocaine. The jury found that Paul possessed each of these substances (powder cocaine and crack cocaine) with the intent to sell them, and thus found him guilty of both offenses. For these reasons, the Superior Court found that the trial judge was correct in imposing a sentence for each conviction. (Id. at 5.) Additionally, any claim by Paul that the sentences for Counts 2 and 3 should merge because they constitute the same crime were found to be without merit. With respect to these offenses, Paul was charged with two distinct crimes/two separate acts. Citing to state law, because proof in support of one of these crimes did not establish proof of the other, the Superior Court found that merger was inappropriate. (Id.)
As the state court's analysis reveals, Paul's claims challenging the
legality of his sentence address only the application of Pennsylvania
sentencing law, and as such are not cognizable by a federal court in a
habeas proceeding. Generally, a state court's sentencing decision and
claims arising out of that decision are not cognizable in a federal
habeas proceeding, unless the sentencing constitutes cruel and unusual
punishment under the Eighth Amendment, exceeds the statutory limits,
or is arbitrary or otherwise in violaton of due process.*fn11
See Champman v. United States, 500 U.S. 453, 465 (1991); Estelle v. McGuire, 502 U.S. 62
(1991); Laboy v. Carroll, 437
F. Supp. 2d 260, 263 (D.Del. 2006). A federal court may review a habeas petition filed by a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Claims asserting violations of state law, or challenging a state court's interpretation of state law, are not cognizable on federal habeas review. Jones v. Supt. Rahway State Prison, 725 F.2d 40, 43 (3d Cir. 1984)(considering claim challenging sentence disparity between co-defendants). See also Estelle, 502 U.S. at 67-68(it is not province of the federal court to re-examine a state court's determination of state law).
Accordingly, the state courts, carefully reviewing the facts of this case and the state legal requirements, imposed Paul's sentence within the broad limits established by the Constitution. Paul's objections to the legality of the sentence fail to raise a cognizable claim under which this Court may grant federal habeas relief.
We next examine Paul's challenge to the discretionary aspects of his sentence. Specifically, he maintains that the trial court abused its discretion when it failed to state sufficient reasons on the record for its aggravated range sentences with respect to Counts 1, 2 and 3 (the PWID counts). He further asserts that the sentences imposed with respect to these counts were manifestly excessive.
As previously stated, with respect to sentence length, the state court's sentencing discretion is unreviewable by a federal court provided that the sentence lies within the statutory guidelines, it is not based upon arbitrary considerations, and the defendants's constitutional rights were not violated. See Estelle, 502 U.S. at 67-68(explaining that federal habeas courts are not permitted to review questions of state law); Wainwright v. Skyes, 433 U.S. 72, 81 (1977)(indicating that questions of state substantive law are not cognizable on federal habeas review). Otherwise, a habeas petition cannot be used to challenge sentence length since allegations that a state tribunal abused its discretion under state law do not constitute an issue of federal constitutional dimension. See Townsend v. Burke, 334 U.S. 736, 741 (1948)(stating that when a state "sentence [is] within the limits set by the statute, its severity would not be grounds for [habeas] relief").
This issue was raised by Paul in his post-sentence motion, and thereafter reviewed and affirmed on appeal by the Pennsylvania Superior Court. (Doc. No. 19-6.) The principle of comity suggests that this Court defer to the Superior Court's review and affirmation of the sentence with respect to Paul's challenge to the discretionary aspects of his sentence. The Superior Court found no abuse of discretion on the part of the trial court in imposing sentence on Counts 1, 2 and 3. The trial court was well aware of the fact that the sentences imposed were in the aggravated range, but thoroughly noted its reasons on the record for doing so. Specifically, the trial court noted Paul's failure to respond to rehabilitation efforts despite his numerous prior convictions, programs and prison sentences. The court pointed to his long history of crime since his juvenile days through the time of the instant offenses, as well as the fact that he had completed incarceration only a few weeks before coming to Pottsville and setting up a drug shop in Schuylkill County. (Doc. No. 12-12 at 20, Sentencing Tr.) In addition, although his wife had a nice residence in Pottsville, Paul leased an apartment nearby for the purpose of setting up a "drug store" to supply the town with powder cocaine, crack and marijuana. (Id. at 21.) On the record the court further remarked that despite the fact Paul was a bright, articulate and talented individual, he continued to choose a life of crime and was smart enough to know better. (Id.) The court also commented on how Paul was the father of three children yet repeatedly chose to put them in harms way. (Id.) The court also did not find Paul's testimony credible. Based upon the foregoing, the Superior Court found no abuse of discretion on the part of the trial court in imposing Paul's sentence on Counts 1, 2 and 3. This Court finds that the Superior Court reasonably concluded that the sentence imposed by the trial court was not illegally excessive and that there was no abuse of discretion. As such, Paul's challenges to the sentence imposed will be denied.
F. Denial of meaningful review of PCRA
Paul also challenges the review he received in his PCRA proceedings. Specifically, he claims that PCRA counsel failed to address all of the issues he wanted him to and that counsel abandoned him for purposes of appeal of his PCRA to the Superior Court. He claims that following the trial court's denial of his amended PCRA, his counsel sought to withdraw pursuant to Turner/Finley claiming there existed no basis to appeal.*fn12 Paul contends that the trial court improperly adopted counsel's "no merit" letter in justifying its decision to deny his PCRA petition.
With respect to this issue, on appeal to the Pennsylvania Superior Court from denial of his amended PCRA petition, the Superior Court conducted an exhaustive review of the record and found that counsel had properly petitioned to withdraw as counsel pursuant to the dictates of Turner/Finley. (Doc. No. 19-11 at 7, 12/19/07 Pa. Super. Op.) In his "no-merit" letter, counsel described the nature and extent of his review of Paul's case, listed the issues Paul wished to have reviewed on appeal, and provided an explanation of why those issues lacked merit in accordance with state law. As such, this Court is unable to find that Paul's pending habeas challenge to the "no-merit" letter is viable.
Further, while Paul argues that the trial court only granted PCRA counsel's motion for leave to withdraw to justify its decision to deny his amended PCRA petition, the Superior Court rejected this argument. Specifically, the Superior Court found that because the trial court had written an opinion pursuant to Pa.R.A.P. 1925(a) addressing the claims Paul raised on appeal, any such argument that the trial court used the withdrawal letter to justify their denial of the PCRA was clearly without merit. (Id.) For these reasons, this habeas ground will also be denied.
IV. Conclusion
For all of the foregoing reasons, the Court will issue an appropriate order denying the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of appealability ("COA"), an appeal may not be taken frm a final order in a proceeding under § 2254. A COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322 (2003). In the instant matter, jurists of reason would not find the disposition of Petitioner's case debatable.
An appropriate order follows.
ALEXIS A. PAUL, Petitioner, v. : RANDAL E. BRITTON, Respondent
: (Chief Judge Kane)
AND NOW, this 13th day of August, 2012, upon consideration of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, IT IS HEREBY ORDERED AS FOLLOWS:
1. The petition for writ of habeas corpus is denied.
2. Petitioner's motion to amend (Doc. No. 31) is denied without prejudice.
3. A certificate of appealability is denied.
4. The Clerk of Court is directed to close this case.
YVETTE KANE, Chief Judge Middle District of Pennsylvania
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text: Hi everyone. I'm considering purchasing a 2nd gen Touch but cannot get the same answer twice by retailers. I often record TV shows to my multi media center PC (ie. hard disk) using the Media Center software in Vista Home Premium and would like to import some of these TV shows to an iPod Touch. Can this be done and if so how??? Thanks for any assistance you can give me as this will have a major influence on whether I purchase a Touch.

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Two Tone Blue Wool Pocket Square
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Guest reviews
Overall rating
9.0 Excellent
based on 192 reviews
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"Pleasant hotel grounds"
"Friendly atmosphere"
"Great view"
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Located in Chinnakanal, Fort Munnar is in a rural location and within the vicinity of Mathikettan Shola National Park and Anayirangal Dam. This hotel is within the region of Kolukkumalai Tea Estate and Carmelagiri Elephant Park.
Make yourself at home in one of the 29 guestrooms featuring minibars. Bathrooms have shower/tub combinations and complimentary toiletries. Conveniences include safes and coffee/tea makers, and you can also request rollaway/extra beds (surcharge).
Don't miss out on recreational opportunities including a nightclub and a fitness center.
You can enjoy a meal at a restaurant serving the guests of Fort Munnar, or find a snack in a coffee shop/café.


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Just in time for Memorial Day, our best selling Bambu Veneerware bamboo disposable plates are back in stock! Great for picnics and great for the earth! These bamboo plates are so solid and study your guests won't believe that they're disposable.
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Property Location With a stay at Aylsham Lodge Hotel in Norwich (Aylsham), you'll be close to Blickling Hall. This hotel is within the region of Wroxham Barns and Felbrigg Hall.Rooms Stay in one of 15 guestrooms featuring flat-screen televisions. Complimentary wireless Internet access is available to keep you connected. Conveniences include direct-dial phones, and both irons/ironing boards and rollaway/extra beds are available on request.Dining Enjoy a meal at a restaurant, or stay in and take advantage of the hotel's room service (during limited hours). Quench your thirst with your favorite drink at a bar/lounge.Business, Other Amenities Free parking is available onsite.
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People love gadgets, because gadgetry is cool. The first time I surpassed a line at a busy movie theater by using my phone to get tickets, I felt like a king and wanted to spit in the face of every lowly peasant in my way. That's how awesome technology is when you first use it. Then you get distracted by a bright light and run off elsewhere, but that one, special moment with technology made a wrinkle in your brain, and it'll be there until you drink it away.
While most gadgets require you to go to a store and buy them, every so often the place where we live goes out of its way to be awesome and puts fun technology out on the streets for everyone to enjoy! This is about that.
5 German Crossing Pong
Can you think of anything worse than waiting to cross a street in Germany? Before you answer, allow me to answer for you with a simple no. Were you going to suggest being forced at gunpoint to lick a rat's butthole? Ha ha ha! Wrong. Dead German crosswalk wrong. Don't ever look me in the eye again.
In Germany, crossing the street kills more people per year than crack, maybe. Because of this, back in 2012 some German students hatched an idea to rig up a game of Pong on alternate traffic poles so that pedestrians could keep themselves busy. It was just a concept back then, but now, in the futuristic utopia of 2015 Germany, it's a reality! You can play Pong with another pedestrian on a street corner somewhere in Hildesheim, Germany.
The Independent
As part of the Potsdam Agreement, German citizens are forbidden from playing anything more strategic.
The game is pretty simplistic, obviously. It's Pong. But it's played out on a touch screen, sort of like playing with a phone someone strapped to a crosswalk. Never will you endure 30 seconds of bored lack of motion again. Not at that one corner.
4 Urilift
Ladies, this one doesn't apply to you so why don't you just make yourself comfy, maybe take a few boudoir photos for me. As for the dudes: This is the be all and end all of pee convenience. Well, no, just pissing on a tree still wins that. Or the side of a Sbarro. But this is civilization's answer to that -- the super futuristic Urilift, a toilet that hides underground out on the street when you don't need it but raises up like a urine-soaked elevator when you do.
If only you didn't have to summon it in R'lyehian.
Ladies, did you take the pics? Because I totally tricked you! God, I'm sly. The Urilift company didn't leave you out in the cold; they also have the Urilady, which is their name for a toilet. It's just a toilet. But it raises from the ground in a steel cylinder as well and could probably never lower back into the ground with you helplessly inside it. I mean, that would be absurd.
Jupiterimages/Stockbyte/Getty Images
"Urilifts? But where are those collapsible suicide booths I ordered?"
The basic idea behind these creations is that you need toilets in public but no one wants to see the dirty things all day. So in the sunlight hours you hide them in the streets and pretend no one in the world eliminates waste and between our butt cheeks is just a geranium. Then, after work, good people go home to their families and drunken disgraces wander the streets of Europe (and one Canadian city), and as the sun sets these urinals can pop up like starving piss vampires and prevent those pathetic shells from pissing on themselves, or others, or that Sbarro.


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V and V
107 Adams Dr Albertville, Alabama 35950(256) 891-0872
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AboutV and V is located at the address 107 Adams Dr in Albertville, Alabama 35950. They can be contacted via phone at (256) 891-0872 for pricing, hours and directions.
V and V has 4 employees.
For maps and directions to V and V view the map to the right. For reviews of V and V see below.
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Freak of Nature [US Bonus Track]by Anastacia
Anastacia's sophomore outing, Freak of Nature, continues with the late-'80s bombastic funk/soul/pop revival ushered in by her debut, Not That Kind, but this time there's a few more ballads in the mix. Anastacia also leans more toward straightforward rock on this outing, while still maintaining the irresistible dance grooves that made her debut an international success. The album kicks off to a rocking start with the title track, which boasts a sinuous guitar solo reminiscent of "American Woman" and then leads into the soulful, bombastic rocker "Paid My Dues," a massive European hit. Other shining moments include the dramatic "One Day in Your Life," which follows the same formula as her previous hit, "I'm Outta Love," but better, with more soaring, epic vocals, and sounds like a rock version of a forgotten disco classic. The feel-good soul-funk vibe of "Don't Stop (Doin' It)" is a massive hit waiting to happen, and perfect for a breezy summer afternoon. When Anastacia slows down the tempo for the ballads (some organic and acoustic, some bordering on power ballads), she succeeds by utilizing her strong vocal chops without venturing into vocal histrionics. Reminiscent of Taylor Dayne at times, Anastacia successfully avoids the sophomore slump by delivering an album full of raw emotion, power, and musicality which manages to improve upon its predecessor. As a final note, the Destiny's Child-sounding "Why'd You Lie to Me" and the sassy "Don'tcha Wanna" both appear on the American version of Not That Kind.
Editorial Reviews
Product Details
- Release Date:
- 06/18/2002
- Label:
- Sony
- 0696998601024
- catalogNumber:
- 86010
Album Credits
Performance CreditsAnastacia Primary Artist,Vocals,Background Vocals
Sharon Bryant Background Vocals
Danny Madden Background Vocals
Nicki Richards Background Vocals
Audrey Wheeler Background Vocals
Jeanie Tracy Background Vocals
Mark Russell Bass,Guitar,Bass Guitar
Louis Biancaniello Keyboards
Denyse Buffum Viola
Chris Camozzi Guitar
Larry Corbett Cello
Shane Keister Piano,Hammond Organ
Joel Derouin Violin
Charles Everett Violin
Kirstin Fife Violin
Ruth Johnson Violin
Peter Kent Violin
Curtis King Background Vocals
Eric Kupper Acoustic Guitar,Bass,Keyboards,talking drum
Shawn V. Lucas Keyboards
Paulette McWilliams Background Vocals
Chieli Minucci Acoustic Guitar
Maria Newman Violin
John Wittenberg Violin
Carol Steele Percussion
Susan Chatman Violin
Faith Evans Vocals
Edmund Stein Violin
Billy Mann Guitar,Background Vocals
Suzie Katayama Cello
Russ Desalvo Acoustic Guitar,Keyboards
Bob Peterson Violin
Sam Watters Background Vocals
Melonie Daniels Background Vocals
Norm Hughes Violin
Richie Jones Percussion,Drums
Angela Fisher Background Vocals
Eve Butler Violin
Patrick Carroll Bass Guitar
Rob Bailey Electric Guitar
Lamenga Kafi Background Vocals
Jason Crosby Fiddle
Dan Smith Cello
Becky Bunnell Violin
Dameon Aranda Guitar
Mario de León Violin
Matthew Funes Viola
Technical CreditsLouis Biancaniello Arranger,Programming,Producer,Engineer
Bob Cadway Engineer
David Campbell Arranger,String Arrangements
Larry Corbett Principal
Joel Derouin Principal
Eric Kupper Arranger
Shawn V. Lucas drum programming
Allen Sides Engineer
Rick Wake Arranger,Producer
Dan Hetzel Engineer
Russ Desalvo Arranger
Sam Watters Arranger,Producer,Engineer
Sheri G. Lee Art Direction,Shoot Coordinator
Thomas R. Yezzi Engineer,Vocal Engineer
Pete Karam Engineer
Richie Jones Arranger,Producer,drum programming
Nicole Renee Engineer
Jim Annunziato Engineer
Patrick Carroll drum programming,Percussion Programming
Anastacia Composer
Gary Montalvo Art Direction,Shoot Coordinator
Miklos Malek Arranger,Instrumentation
Levente Egry Arranger
Eric Sanicola Engineer
B.E. Mann Composer
Customer Reviews
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Hey people, Anastacia is here to stay! She paid her dues and she is ready to rock us again with another great cd! I love her to death and I wish she would hit it big in the U.S even though is is known world wide selling sooo many copies of her first cd! She is in the top 10 of best selling artists all over the world!!! Hello!! Anastacia has it all rock, pop, R&B a little country , just to fit every mood that your feeling, thats why I love her Albums! So take advantage of this girl and hear her roar, her voice will knock you over!
Anastacia the 30 year old soulsinger has amazing voice and so much lungpower i think no one can belt out as she does maybe Celine Dion and Aretha Franklin who also have magical voices as miss Anastacia i fell for her at the moment when i first heard Not That Kind in 1999 Anastacia is here to stay and Rock this PLANET.
What a voice! I can't wait for Anastacia to break big here like she did in Europe. She's a USA home girl with world wide appeal for R&B, Dance, Rock and Empowered Women Everywhere. It's good to see this new crop of women singers who can belt it out in such sincere form. Anastacia has captured my ear as much as Shakira or Alicia K. There's no pop fizzle with Anastacia, she'll be belting it out long after her belly button (may it never) slumps! Props to Anastacia who doesn't hide her Crohn's Disease from the world. We need more celebrities like her to come out with this illness and let the world know that IBD is a serious illness. Sing it loud! You are a pleasure and a half, Anastacia! I can't wait for you to break Stateside. It took a friend in Holland to turn this Minnesota woman onto your tunes. Soon the States will know what the world does. Anastacia is here to roar!


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United States District Court, E.D. California
June 24, 2014
JAMES DEMARCO RICHARDS, Plaintiff,v.CHARLES RENFRO, et al., Defendants.
MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983.
Plaintiff has consented to Magistrate Judge jurisdiction. His complaint is before the Court for screening.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious, " or that fail to state a claim upon which such relief. 28 U.S.C. § 1915A(b)(1), (2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n , 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor , 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins , 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty. , 811 F.2d 1243, 1245 (9th Cir. 1987).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. lqbal , 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). Plaintiff must set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id . Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.
Plaintiff filed his complaint while detained at Fresno County Jail. Plaintiff names the following individuals as Defendants: (1) Detective Charles Renfro of the Fresno County Police Department, and (2) Midori Howo, deputy district attorney for Fresno County. Plaintiff complains of acts that occurred in a case pending against him in state court.
Plaintiff's allegations can be summarized essentially as follows:
Defendant Howo violated a state court order by obtaining and serving a body attachment order against a complaining witness without first providing the court with proof of service of a subpoena. Defendant Renfro provided false testimony at a preliminary hearing, and Defendant Howo failed to correct the false testimony. Defendant Howo also told the complaining witness what to say at the preliminary hearing.
Plaintiff seeks to suppress the complaining witness's testimony and Defendant Renfro's testimony and "work product, " to remove Defendant Renfro from the case, and to "void" the preliminary hearing. Plaintiff also seeks $28.7 million in damages.
A. Younger Abstention
To the extent that Plaintiff seeks intervention in ongoing state criminal proceedings, this Court must abstain. Under principles of comity and federalism, a federal court should not interfere with ongoing state criminal proceedings by granting injunctive or declaratory relief except under special circumstances. Younger v. Harris , 401 U.S. 37 (1971); Samuels v. Mackell , 401 U.S. 66 (1971). Abstention is proper regardless of whether the applicant seeks declaratory relief, injunctive relief, or damages. See Mann v. Jett , 781 F.2d 1448, 1449 (9th Cir. 1986) ("When a state criminal prosecution has begun, the Younger rule directly bars a declaratory judgment action" as well as a section 1983 action for declaratory relief and damages "where such an action would have a substantially disruptive effect upon ongoing state criminal proceedings."); Gilbertson v. Albright , 381 F.3d 965, 984 (9th Cir. 2004) (Younger abstention applies to actions for damages as it does to declaratory and injunctive relief). Younger abstention is required when: (1) state judicial proceedings are pending; (2) the state proceedings involve important state interests; and (3) the state proceedings afford adequate opportunity to raise the constitutional issue. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n , 457 U.S. 423, 432 (1982); Dubinka v. Judges of the Super. Ct. , 23 F.3d 218, 223 (9th Cir. 1994).
Accordingly, the Court will abstain from interfering with Plaintiff's ongoing state proceeding.
B. Heck Bar
To the extent Plaintiff's state criminal proceedings may have concluded, Plaintiff should note that state prisoners cannot challenge the fact or duration of their confinement in a § 1983 action. Their sole remedy lies in habeas corpus relief. Wilkinson v. Dotson , 544 U.S. 74, 78 (2005). Often referred to as the favorable termination rule or the Heck bar, this exception to § 1983's otherwise broad scope applies whenever state prisoners "seek to invalidate the duration of their confinement-either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody." Wilkinson , 544 U.S. at 81. "[A] state prisoner's § 1983 action is barred (absent prior invalidation) if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Id. at 81-82; Heck v. Humphrey , 512 U.S. 477, 489 (1994) (until and unless favorable termination of the conviction or sentence occurs, no cause of action under § 1983 exists).
If Plaintiff chooses to amend, he should note that a challenge to the fact or duration of his confinement cannot be raised in a § 1983 action.
Plaintiff's claims are barred under Younger. The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v. Carlson , 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a deprivation of his constitutional rights. lqbal, 556 U.S. at 677-78. Plaintiff must set forth "sufficient factual matter... to state a claim that is plausible on its face.'" Id. at 678 (quoting Twombly , 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each named Defendant personally participated in a deprivation of his rights. Jones v. Williams , 297 F.3d 930, 934 (9th Cir. 2002).
Plaintiff should note that although he has been given the opportunity to amend, it is not for the purposes of adding new claims. George v. Smith , 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on curing the deficiencies set forth above.
Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. As a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay , 375 F.2d 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged. The amended complaint should be clearly and boldly titled "First Amended Complaint, " refer to the appropriate case number, and be an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed.R.Civ.P. 8(a). Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Twombly , 550 U.S. at 555 (citations omitted).
Accordingly, it is HEREBY ORDERED that:
1. The Clerk's Office shall send Plaintiff (1) a blank civil rights complaint form and (2) a copy of his Complaint, filed November 25, 2013;
2. Plaintiff's Complaint is dismissed for failure to state a claim upon which relief may be granted;
3. Plaintiff shall file an amended complaint within thirty (30) days; and
4. If Plaintiff fails to file an amended complaint in compliance with this order, this action will be dismissed, with prejudice, for failure to state a claim and failure to comply with a court order.
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WOODBURY - Don't let the cooler weather bring you down! Get out and enjoy yourselves this fall.
As part of our Fall Fun series, News 12 Long Island is bring you some Family Fun!
Take your kids' minds off school for a bit and head to a pumpkin patch or corn maze to get active.
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Life has finally slowed down a bit for me, I didn't forget about TOTW, just got sidetracked.
I want to see pages/cards about Birthdays! Everyone/anyone should post - even if you don't think you're 'good' enough, we want to see your ideas, you may inspire someone! So find those pages and post them here!
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text:
ZZ Top - Rio Grande Mud (1972) FLAC
Artist: ZZ Top
Title: Rio Grande Mud
Date of Realise: 1972
Genre: Hard Rock / Blues Rock
Total Tracks: 10
Format: FLAC
Quality: Lossless
Total Time: 36:57 min
Size: 236 MB
01 Francine 2:54
02 Just Got Paid 3:49
03 Mushmouth Shoutin' 3:45
04 Ko Ko Blue 4:23
05 Chevrolet 3:20
06 Apologies To Pearly 2:47
07 Bar-B-Q 3:23
08 Sure Got Cold After The Rain Fell 6:49
10 Down Brownie 2:26
All references to music (video) are presented only for fact-finding listening and located not on our server. All files lay on foreign servers to which site Freshremix.ru irrelevant. Our site is only site on which Users spread references to these files which are publicly available. After listening you must delete the downloaded file and get a legal copy.


text:
Michael Ramirez by Michael Ramirez
- November 24, 2013
- From Beginning
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Comments (6) (Please sign in to comment)
Obama calls the 25 million people with individual policies being cancelled a "small percentage of Americans".
What happens a year from now when everybody else's insurance through their job gets cancelled because it doesn't include sex-change counseling?
Get ready folks!
but cdk ahab said"I've been in the medical field for 25 years" but as a mental patient
Another RWNJ by Ramirez. Numbers are going up, despite the fact the program launched poorly planned, and executed. Wait a few months and see what happens, it's looking better for those who have not had coverage every day that goes by, but hey, just listen to the idiot propaganda.
The Bill, btw, does indeed have some bad segments, thanks to Republican efforts, but with the RWNJ's in both House AND Senate, for now, gotta' take what we can get and work on it. (Even when the right keeps trying to bury everything in B.S..)
The Democrat National Committee thanks you and has your check in the mail for your daily submissions to lie for them.
Oh it's far beyond that. The Obamanation is bending over and lubing up for the insurance industry, unions, illegal aliens, and every socialist cause he can manage to fit it. The so-called "president" is a worthless piece of human debris, right along with vermin like the witch Pelosi and Reid.
"it's better to let people starve and die from treatable conditions in freedom"————————————————————————————-//-
Starve and die? Link?
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Posts Tagged 'best comedy'
The Funniest Movies of 2009
Comedy, typically, is my least favorite genre, but that doesn't mean I don't enjoy a good, funny movie. The problem in 2009 was that there just weren't very many funny movies. The Hangover was great, but the funniest movie of the year? Yes, in 2009. In other years… maybe not. And dramedies like Away We […]
Mad Max: Fury Road Black & Chrome Edition
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Mixed Reviews On Ratepayers' Bailout Of Clinton Nuclear Plant
The Illinois General Assembly finished the fall veto session on Dec. 1 with lawmakers passing a major energy bill in which Exelon agreed to keep the Clinton and Cordova nuclear power plants open in exchange for $235 million in ratepayer-funded subsidies.
The good news is for the jobs which, at least temporarily, have been saved and I certainly don't blame a community like Clinton for celebrating because of the devastating impact closing that plant would have on its residents and tax revenue.
Republicans Sen. Chapin Rose and Rep. Bill Mitchell represent Clinton in their districts, so it is understandable why they had no problem approving the bill.
U.S. Rep. Rodney Davis (R-Ill.) also liked the legislation: "I commend Governor Rauner and state legislators, including Chapin Rose and Bill Mitchell, for working together to pass an energy bill that will help keep DeWitt County's largest employer open for business.
"Clinton Power Station is responsible for thousands of good-paying jobs and economic benefits that will stay in this community because of this legislation. This gives us ten years to develop better policies to ensure base load power stations, like Clinton, remain an integral part of our energy grid."
Davis and other members of the Illinois Congressional Delegation sent a letter in May urging state action.
• THERE IS also a not-so-good ripple impact for this legislation. State Senator Kyle McCarter (R-O'Fallon) disagrees with Rose, Mitchell and Davis on its merits.
McCarter says Senate Bill 2814 is nothing more than a ratepayer bailout for a very profitable company and the measure provides $8 billion in subsidies, which he calls bailout money.
"The money has to come from somewhere," McCarter said. "This is a bailout for a very profitable company. $2 billion in profit last year. Their CEOs earned $31 million, but apparently just five percent of the profits wasn't enough to save their own facilities."
Under SB2814, Exelon will receive subsidies totaling $235 million a year for up to 10 years. There are also financial incentives for energy efficiency and so-called "green" energy such as solar and wind power that include utility companies, Com-Ed and Ameren.
McCarter said the money for the subsidies and incentives will come from ratepayers.
Exelon claims that without the financial assistance they would be forced to close their nuclear power plants in Clinton and Cordova, Illinois with a loss of hundreds of good-paying jobs and millions of dollars paid out in local property taxes, but Sen. McCarter said job losses will occur under the bailout plan as electricity rates rise and drive away business and industry.
"There are estimates that job losses statewide could be as high as 44,000. You won't see them as a headline in the news happening all at once. It'll be 25 here; 50 here," said McCarter. "Large users of power such as ADM, Tate and Lyle, their number two cost for goods sold is energy."
• IT WAS GREAT to speak at the Breakfast Sertoma Club breakfast meeting Friday morning. What a great group of people and I also appreciated the invitation to go out to Scovill Banquet Center and have breakfast with them any Friday morning. (After you read my "Viewpoint" at left you might feel I should immediately accept their invitation.)
I always feel at home when I speak to our service clubs, not only because I've known for years many of the people I see there, but because of their work and commitment to our community in a variety of ways. I appreciate who and what they are -- including their values.
I always enjoy promoting our community and, of course, this newspaper.
• WITH THE City of Decatur filings completed, the Townships were scheduled to hold their caucus meetings yesterday, Dec. 6th with the City of Macon, and the Village of Warrensburg holding their municipal caucus meetings on Dec. 5th. Multi-Township Caucus for assessor will be today (Dec. 7th).
Filing dates for all candidates will be Dec. 12-19 with the various local election officials except for school board members and multi-township assessors who file with the Macon County Clerk's Office, 141 S. Main St., Room 104, Decatur.
The following positions will be open for filing for school board:
• Argenta- Oreana will have 3 full term seats and 3 unexpired 2 year term seats
• Meridian will have 3 full term seats
• Decatur will have 4 full term seats
• Mt Zion will have 3 full term seats and 1 unexpired 2 year term seat
• Warrensburg Latham will have 3 full term seats
• Maroa Forsyth will have 3 full term seats
• Sangamon Valley will have 4 full term seats
School Board and Multi-Township Assessor candidates can begin filing at 8 AM on Dec. 12th.
Macon County Clerk's hours are: Dec. 12th 8 AM to 4:30 PM, Dec. 13-16 8:30 AM to 4:30 PM. Dec. 19th is last day to file and the office will be open from 8:30 AM to 5 PM.
If more than one candidate for a position files at 8 AM, a lottery will be held for who will be listed first on the ballot and other ballot placements.
If more than one candidate files for a position during the final hour on Dec. 19th from 4-5 PM, a lottery will be held for the final spot on the ballot and other ballot placements.
For questions concerning the upcoming April 4th Consolidated Election, call Steve Bean at 424-1305.
Listen to the "City Hall Insider" hour with Paul Osborne on Byers & Co. at 7:00 every Thursday morning over NEWS/TALK 1340 WSOY or visit our website at decaturtribune.net and find us on Facebook.
Central Park Fountain in Downtown Decatur
Paul Osborne's
Biscuits And Gravy, Wrong-Angled Parking And Cow Gas
City Council Approves Sewer Rate Increase To Fund Required Improvements
DECATUR – Many residents who experience basement backups and overflow problems, long a problem for some in the community due to the condition of local sanitary sewer system, will receive some much-needed relief from the problem in the coming months and years.
The Decatur City Council on Monday approved a multi-year sanitary sewer rate increase to assist in covering the cost of an estimated $70 million in known problems and deferred maintenance to fix the critical sanitary sewer related issues facing the community today. Part of the work has been mandated to be done by the U.S. Environmental Protection agency by December 31, 2018 with the balance of the work known to be needed both to address identified issues and avoid further federal regulation.
The approved increases are for the sanitary sewer rate portion of local utility bills and amount to 15 cents in 2017 and 2018, 9 cents in 2019-2021 and 2.5% in 2022 and 2023 for every 100 cubic feet of water usage. The average water customer currently pays about $6.58 cents per month in sanitary sewer usage charges.
As part of the work plan the city will:
Increase sewer cleaning and de-rooting
Increase Sewer Engineering
Reduce Basement Backups
Eliminate Inflow Connections
Provide Flow Monitoring to determine system capacity
Council members on Monday also approved the city's property tax levy for the next year at a level expected to result in a tax rate that is about the same as this year, pending community assessment.
Avon Theatre Celebrates
100th Birthday
The Avon Theatre at 425 North Water Street in downtown Decatur is celebrating its 100th birthday this week ... and is not looking its age. Check out this week's print edition of the Decatur Tribune where we take a look at the Avon's long history and how it was brought back to life in 1999.
• Questions That Should Be Answered About Pool Project In Nelson Park
• Most Americans Are Not For Donald Trump
• A City With Much To Be Thankful For
• Workers Compensation Reform Would Have Far Reaching Impact On Economy
Decatur Tribune Offices Are Located At:
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P. O. Box 1490
Decatur, Illinois 62523
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Phone: 217/422-9702
Fax: 217/422-7320
Submit your news
to the editor at:
or to: Decatur Tribune,
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