Tillery v. Horn

142 F. App'x 66
Court of Appeals for the Third Circuit·Decided July 29, 2005·No. No. 03-3616·Published·Cited by 3 cases

Opinion

OPINION

COWEN, Circuit Judge.

Appellant Major Tillery appeals from an order of the District Court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argues that the petition should have been granted because his trial counsel labored under an actual conflict of interest. We conclude that the claim is procedurally defaulted, and that Tillery has not established actual prejudice.

I.

As we write solely for the parties, we briefly review the procedural background. On May 29, 1985, following a jury trial, Tillery was convicted of first-degree murder and related crimes. The case arose from an October 22, 1976 shooting incident which resulted in the death of John Hollis and the wounding of John Pickens. The Pennsylvania Superior Court affirmed, and [67]*67on March 5, 1990, the Pennsylvania Supreme Court denied allocatur.

On September 20, 1996, Tillery petitioned for collateral relief under the Pennsylvania Post-Conviction Relief Act, alleging that he was denied effective assistance of counsel under the Sixth Amendment because his trial counsel, Joseph Santaguida, operated under an actual conflict of interest. Santaguida had represented Tillery at trial, but was replaced by James Bruno, Esquire, who filed post-verdict motions on Tillery’s behalf and represented him on direct appeal. The PCRA court dismissed Tillery’s application, finding his conflict claim procedurally defaulted, and the Superior Court affirmed. The Pennsylvania Supreme Court denied allocatur.

Tillery filed the instant petition in the Eastern District of Pennsylvania, asserting that his trial counsel labored under an actual conflict of interest and was thus constitutionally ineffective. The District Court dismissed the petition and declined to issue a certificate of appealability. Tillery next sought relief in this Court, and we remanded, directing the District Court to permit him to present evidence in support of his conflict claim. The District Court thereafter held two hearings, but reaffirmed its previous order denying relief. This appeal ensued.

II.

The District Court had jurisdiction over Tillery’s habeas petition under 28 U.S.C. § 2254, and we have jurisdiction under 28 U.S.C. § 1291. The District Court’s legal conclusions, including its resolution of legal questions arising from application of the procedural default doctrine, are subject to plenary review. Hull v. Kyler, 190 F.3d 88, 97 (3d Cir.1999).

III.

The Pennsylvania Superior Court concluded that Tillery had waived his actual conflict claim, finding that he had not raised the claim on direct appeal. The court relied on 42 Pa. Cons.Stat. Ann. § 9544(b), which states that “an issue is waived if the petitioner could have raised it but failed to do so ... on appeal,” as well as that “ ‘[ineffectiveness of trial counsel must be raised at the first opportunity at which the counsel whose effectiveness is being challenged no longer represents the defendant,’ ” (App. at 253 (quoting Commonwealth v. Miller, 388 Pa.Super. 7, 564 A.2d 975, 977 (1989))). The state court’s finding of waiver requires us to examine and employ the federal rules of procedural default.

A. Procedural Default

Under the doctrine of procedural default, a federal habeas court is prohibited from considering constitutional claims where a state court has refused to entertain their merits on the basis of an adequate and independent state procedural rule, see Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), unless the habeas petitioner can show “cause” for the default and “prejudice” attributable thereto, Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). A state procedural rule is “adequate” if it is regularly or consistently applied by the state court, see Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), and is “independent” if it does not “depend[] on a federal constitutional ruling,” Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

To avoid waiver of any ineffective assistance of counsel claims, Pennsylvania law required Tillery to raise such claims “at the earliest stage in the proceedings at [68]*68which the counsel whose effectiveness is being challenged no longer represents the defendant.” Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 n. 6 (1977).1 Because Tillery obtained new counsel following trial, before the filing of post-verdict motions, the Superior Court recognized that he was obligated to raise all of his ineffective assistance of counsel claims pertaining to his trial counsel, including that Santaguida labored under an actual conflict, in post-verdict motions and on direct appeal.

Tillery challenges the adequacy of the Hubbard rule as applied to his case, arguing that “the state court never made an ‘adequate’ finding of procedural default because Tillery did not discover the claim until 1996, when he raised it on post-conviction relief.” (Appellant’s Br. at 11.) Tillery, however, is conflating concepts of the adequacy and independence of a state procedural rule with the correctness of the state court’s application of its own law. Tillery has not furnished any argument or evidence germane to the adequacy inquiry. See Reynolds v. Ellingsworth, 843 F.2d 712, 719 (3d Cir.1988). We have previously determined that the Hubbard rule was an adequate and independent state procedural rule, see Richardson v. Warden, S.C.I. Huntingdon, 2005 WL 289992 (3d Cir.2005), and there is no evidence to suggest that it was not an independent and adequate state procedural rule as applied to Tillery. Instead, Tillery is charging Pennsylvania with the erroneous application of its own procedural rule, which courts have repeatedly counseled is not a cognizable claim on habeas. See Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (“[Federal habeas corpus relief does not lie for errors of state law.”); Barnes v. Thompson, 58 F.3d 971, 974 n. 2 (4th Cir.1995). Accordingly, the Pennsylvania Superior Court’s decision to find Tillery’s Sixth Amendment ineffective assistance claim waived rested upon application of an independent and adequate state procedural rule. His conflict of interest claim is procedurally defaulted.

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Tillery v. Horn, 142 F. App'x 66 (3d Cir. 2005).

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