Tarver v. Pennsylvania Attorney General Office

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FOSTER LEE TARVER, : CIVIL NO. 1:20-CV-199

:

Petitioner, :

:

v. :

: (Magistrate Judge Carlson)

PENNSYLVANIA ATTORNEY :

GENERAL OFFICE, et al., :

:

Respondents. :

MEMORANDUM OPINION

I. Statement of Facts and of the Case

In this case we are asked, once again, to consider a legal saga which has

spanned nearly five decades. The petitioner, Foster Lee Tarver, was charged by state

authorities for his participation in a December 1968 homicidal crime spree, and in

June of 1969, Tarver, who was then a minor, was convicted of murder, robbery, and

other offenses. Tarver was initially sentenced to death, but later was resentenced to

life imprisonment without parole. The factual background of these offenses was

summarized by the Pennsylvania Supreme Court in its 1971 decision affirming

Tarver’s conviction and sentence in the following terms:

On the morning of December 2, 1968, Tarver, acting in concert with

Samuel Barlow, Jr., and Sharon Margarett Wiggins, executed an armed

robbery of the Market Street Branch of the Dauphin Deposit Trust

Company in Harrisburg. During the robbery, a customer in the bank

was shot both by Tarver and Wiggins. Six bullets entered his body

causing instant death. Following the robbery, the felons fled from the

scene in a Chevrolet Sedan which they stole on the same morning from

a parking lot in Harrisburg. About two blocks from the bank, the three

abandoned the Chevrolet Sedan and entered a Buick Sedan which they

had previously stolen in Pittsburgh and parked in this pre-arranged

location in Harrisburg to aid in their flight from arrest. While fleeing in

the Buick, the felons were apprehended by the police and the money

stolen from the bank totaling Seventy Thousand ($70,000) Dollars was

recovered. The major portion of the money was found in the Buick

Sedan and about Forty-Five Hundred ($4500) Dollars was found in and

around the abandoned Chevrolet Sedan.

During the hearing to determine the degree of guilt, Tarver testified and

did not deny his participation in the commission of the robbery. Neither

did he deny shooting the victim of the homicide. However, he stated

that for some time before the day involved he became accustomed to

consuming quantities of cough syrups, known as Robitussin and

Romilar, sniffing glue and smoking marijuana, and that he had done

this a short time before the bank robbery, here involved; that as a result

he was ‘high’ when he entered the bank and his head was ‘spinning’;

that he had no intention of robbing the bank, and could not remember

committing the robbery or shooting anyone during its occurrence.

However, questioning elicited that he remembered stealing the Buick

in Pittsburgh; stealing the Chevrolet a short time before the robbery in

Harrisburg; parking the Buick under a bridge a short distance from the

bank; ‘thinking’ about robbing the bank; driving to the bank in the

Chevrolet and having three guns, two .32 Calibre revolvers and one .22

Calibre revolver in his coat pocket at the time; and, standing on a

counter while in the bank.

Commonwealth v. Tarver, 284 A.2d 759, 760-61 (1971).

Following this conviction, Tarver pursued multiple unsuccessful post-

conviction challenges and appeals. Thus, “[b]etween 1978 and 2010, [Tarver] filed

seven PCRA petitions, all of which were denied or dismissed.” Commonwealth v.

Tarver, No. 875 MDA 2018, 2019 WL 441006, at *1 (Pa. Super. Feb. 5, 2019).

Finally, after more than four decades of fruitless post-conviction litigation, a change

in the law relating to juveniles convicted of murder afforded Tarver some relief from

this mandatory life sentence. Specifically, the United States Supreme Court’s

decision in Miller v. Alabama, 567 U.S. 460 (2012), held that life sentences without

the possibility of  parole for juvenile offenders like Tarver violated the Eighth

Amendment to the United States Constitution.

The Supreme Court’s decision in Miller, which was later made retroactive by

the Court in Montgomery v. Louisiana, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016),

inspired Tarver’s eighth post-conviction relief petition which sought re-sentencing

in light of the Eighth Amendment principles announced in Miller. This relief was

granted in state court. Specifically, on October 30, 2017 and again on May 3, 2018,

Tarver was re-sentenced in the Court of Common Pleas of Dauphin County to 40

years-to-life imprisonment on this murder conviction. (Doc. 1). Given the fact that

Tarver had served some 48 years in prison at the time of this re-sentencing, this

newly imposed sentence was tantamount to a time-served sentence and Tarver has

been released from custody. However, because Tarver was sentenced under

Pennsylvania’s indeterminate sentencing system to 40 years-to-life imprisonment,

he remained subject to a lifetime term of parole supervision. Thus, Tarver remains

under a state criminal justice sentence, albeit a sentence of parole supervision, as a

result of this re-sentencing for his role in this slaying.

Dissatisfied with this sentencing outcome, Traver appealed his sentence to the

Pennsylvania Superior Court arguing that this 40 years-to-life sentence which

provided for his immediate parole was somehow unlawful. At the same time, while

this state court appeal was pending, Tarver filed a federal habeas corpus petition

which we dismissed without prejudice as premature and unexhausted while his

appeal was pending in state court. Tarver v. Pennsylvania Bd. of Prob. & Parole, No.

3:18-CV-2071, 2018 WL 6933390, at *1 (M.D. Pa. Nov. 28, 2018), report and

recommendation adopted sub nom. Tarver v. PA Attorney Gen., No. CV 18-2071,

2019 WL 108852 (M.D. Pa. Jan. 4, 2019).

On February 5, 2019, the Pennsylvania Superior Court denied Tarver’s appeal

of his 40 years-to-life sentence and affirmed the sentence imposed upon the

petitioner. In doing so, the Superior Court found that: “the Pennsylvania Supreme

Court held in Commonwealth v. Batts, 640 Pa. 401, 163 A.3d 410 (2017) (‘Batts

II’), that juvenile offenders for whom the sentencing court deems life without parole

sentences inappropriate, ‘are subject to a mandatory maximum sentence of life

imprisonment as required by section 1102(a), accompanied by a minimum sentence

determined by the common pleas court upon resentencing[.]’ Id., at 421.”

Commonwealth v. Tarver, No. 875 MDA 2018, 2019 WL 441006, at *4 (Pa. Super.

Feb. 5, 2019). The Superior Court then went on to observe that:

[Tarver] suggests a maximum term of life imprisonment is

unconstitutional and affords him no meaningful opportunity for release.

[Tarver]’s argument misapprehends Pennsylvania’s sentencing

scheme.

Pennsylvania utilizes an indeterminate sentencing scheme with a

minimum period of confinement and a maximum period of

confinement. “In imposing a sentence of total confinement the court

shall at the time of sentencing specify any maximum period up to the

limit authorized by law . . . .” 42 Pa.C.S.A. § 9756(a). See also

Commonwealth v. Saranchak, 544 Pa. 158, 675 A.2d 268, 277 n.17

(1996). Here, that maximum period is life imprisonment. Therefore, the

sentence imposed, with a maximum period of life, is lawful.

To the extent [Tarver] meant his minimum term is unconstitutional and

affords him no meaningful opportunity for release, we note “[t]he

maximum term represents the sentence imposed for a criminal offense,

with the minimum term merely setting the date after which a prisoner

may be paroled.” Martin v. Pennsylvania Bd. of Prob. and Parole, 576

Pa. 588, 840 A.2d 299, 302 (2003). Here, the trial court noted that, upon

resentencing on May 3, 2018, [Tarver] was given “time credit from

December 2, 1968, to October 30, 2017, minus roughly five months[,]”

and thus, at the time of resentencing, he was eligible for parole. Trial

Court Opinion, filed 8/22/18. In fact, the trial court noted the “the

Pennsylvania Board of Probation and Parole [subsequently] sent a letter

[to the trial court] indicating that [ ] [Tarver] was released on parole”

after the credit for time served was awarded to [him]. Id., at 2 n.2.

Commonwealth v. Tarver, No. 875 MDA 2018, 2019 WL 441006, at *4 (Pa. Super.

Feb. 5, 2019). Concluding therefore that Tarver’s arguments on appeal were “wholly

frivolous”, id., the Superior Court denied this petition for further post-conviction

relief.

Tarver did not further appeal this decision in the Pennsylvania courts, but

instead filed this timely petition seeking federal habeas corpus relief. Tarver’s

current petition, while timely, seems unexhausted since it raises a single issue, a

claim based upon the Supreme Court’s decision in Bouie v. City of Columbia, 378

U.S. 347 (1964), that imposition of the maximum sentence of life imprisonment in

conjunction with a 40-year minimum sentence which afforded the petitioner

immediate release on parole somehow denied Tarver due process. This claim never

appears to have been raised by Tarver in state court following his re-sentencing.

Moreover, Bouie, which addressed a due process vagueness challenge to a criminal

statute when that state statute was re-interpreted by the state courts after the

defendant’s conduct in order to encompass and criminalize the defendant’s conduct,

has no application to the instant case since Tarver cannot realistically claim that he

was not on notice for the past five decades that murder was a crime which exposed

him to penalties including a maximum sentence of up to life imprisonment.

This petition is now ripe for resolution. For the reasons set forth below, we

recommend that this petition be denied.

II. Discussion

A. State Prisoner Habeas Relief--The Legal Standard.

A state prisoner seeking to invoke the power of this Court to issue a writ of

habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which

provides in part as follows:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus in behalf

the ground that he is in custody in violation of the Constitution or laws

or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be granted

unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of

the State;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.

28 U.S.C. § 2254 (a) and (b).

1. Substantive Standards For Habeas Petitions

As this statutory text implies, state prisoners must meet exacting substantive

and procedural benchmarks in order to obtain habeas corpus relief. Federal courts

may “entertain an application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court 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). By limiting habeas relief to state conduct which violates “the

Constitution or laws or treaties of the United States,” section 2254 places a high

threshold on the courts. Typically, habeas relief will only be granted to state prisoners

in those instances where the conduct of state proceedings led to a “fundamental defect

which inherently results in a complete miscarriage of justice” or was completely

inconsistent with rudimentary demands of fair procedure. See, e.g., Reed v. Farley,

7

not entitle a petitioner to section 2254 relief, absent a showing that those violations

are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d

394, 401-02 (3d Cir. 2004).

2. Deference Owed to State Court Rulings

These same principles which inform the standard of review in habeas petitions

and limit habeas relief to errors of a constitutional dimension also call upon federal

courts to give an appropriate degree of deference to the factual findings and legal

rulings made by the state courts in the course of state criminal proceedings. There are

two critical components to this deference mandated by 28 U.S.C. § 2254.

First, with respect to legal rulings by state courts, under section 2254(d),

habeas relief is not available to a petitioner for any claim that has been adjudicated

on its merits in the state courts unless it can be shown that the decision was either:

(1) “contrary to” or involved an unreasonable application of clearly established case

law; see 28 U.S.C. § 2254(d)(1); or (2) was “based upon an unreasonable

determination of the facts,” see 28 U.S.C. § 2254(d)(2). Applying this deferential

standard of review, federal courts frequently decline invitations by habeas petitioners

to substitute their legal judgments for the considered views of the state trial and

appellate courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren

v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228

8

In addition, section 2254(e) provides that the determination of a factual issue

by a state court is presumed to be correct unless the petitioner can show by clear and

convincing evidence that this factual finding was erroneous. See 28 U.S.C. §

2254(e)(1). This presumption in favor of the correctness of state court factual findings

has been extended to a host of factual findings made in the course of criminal

proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam);

Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990).

3. Procedural Thresholds for Section 2254 Petitions.

a. Exhaustion of State Remedies.

Furthermore, state prisoners seeking relief under section 2254 must also satisfy

specific, and precise, procedural standards. Among these procedural prerequisites is

a requirement that the petitioner “has exhausted the remedies available in the courts

of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). In instances

where a state prisoner has failed to exhaust the legal remedies available to him in the

state courts, federal courts typically will refuse to entertain a petition for habeas

corpus. See Whitney v. Horn, 280 F.3d. 240, 250 (3d Cir. 2002).

This statutory exhaustion requirement is rooted in principles of comity and

reflects the fundamental idea that the state should be given the initial opportunity to

pass upon and correct alleged violations of the petitioner’s constitutional rights.

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observed, “a rigorously enforced total exhaustion rule” is necessary in our dual

system of government to prevent a federal district court from upsetting a state court

decision without first providing the state courts the opportunity to correct a

constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring

exhaustion of claims in state court also promotes the important goal of ensuring that

a complete factual record is created to aid the federal courts in their review of a

section 2254 petition. Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A

petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of

showing that all of the claims alleged have been “fairly presented” to the state courts,

and the claims brought in federal court must be the “substantial equivalent” of those

presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231

(3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner

cannot avoid this responsibility merely by suggesting that he is unlikely to succeed

in seeking state relief, since it is well-settled that a claim of “likely futility on the

merits does not excuse failure to exhaust a claim in state court.” Parker v. Kelchner,

429 F.3d 58, 63 (3d Cir. 2005).

B. This Petition Should be Denied

These settled legal tenets dictate the outcome in this case. At the outset, with

respect to the claims now raised by the petitioner in federal court, it is evident that

10

The sole federal constitutional issue presented by Tarver in this federal habeas

corpus petition is his claim based upon the Supreme Court’s decision in Bouie v. City

of Columbia, 378 U.S. 347 (1964), that imposition of the maximum sentence of life

imprisonment in conjunction with a 40-year minimum sentence which afforded the

petitioner immediate release on parole somehow denied Tarver due process on

vagueness grounds because he was denied adequate notice that his conduct violated

the law and could expose him to the potential of life imprisonment. To the extent that

this is Tarver’s claim, this claim was never presented to the state courts. See

O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (finding that a petitioner

properly exhausts claims in state court “by invoking one complete round of the

State’s established appellate review process”); Lines v. Larkin, 208 F.3d 153, 160

(3d Cir. 2000) (“Petitioners who have not fairly presented their claims to the highest

state court have failed to exhaust those claims.”); Evans v. Court of Common Pleas,

Delaware County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992) (“A claim must be

presented not only to the trial court but also the state’s intermediate court as well as

to its supreme court.”); Blasi v. Atty. Gen. of Pa., 30 F. Supp. 2d 481, 486 (M.D. Pa.

1998) (“The exhaustion doctrine requires the defendant to present the issue to any

intermediate state appellate court, if applicable, and to the state’s supreme court.”).

Thus, this claim is unexhausted and cannot afford federal habeas corpus relief to

11

In any event, Tarver’s claim fails on its merits. The sole case that Tarver relies

upon to support this due process vagueness claim, Bouie v. City of Columbia, 378

U.S. 347 (1964), was a function of a particular place and time in our nation’s history

when civil rights activists who were participating in a peaceful sit-in at a restaurant

in South Carolina were convicted of trespass based upon a state court re-interpretation

of this trespass statute which was adopted after-the-fact, extended the state statute to

their conduct, and criminalized the defendant’s conduct after the sit-in had occurred.

The Supreme Court held that this post hoc state court extension of a state criminal

statute to embrace behavior that was previously not encompassed by the law violated

due process stating that:

There can be no doubt that a deprivation of the right of fair warning can

result not only from vague statutory language but also from an

unforeseeable and retroactive judicial expansion of narrow and precise

statutory language. As the Court recognized in Pierce v. United States,

314 U.S. 306, 311, 62 S.Ct. 237, 239, “judicial enlargement of a criminal

act by interpretation is at war with a fundamental concept of the common

law that crimes must be defined with appropriate definiteness.”

Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S. Ct. 1697, 1702, 12 L. Ed. 2d

894 (1964).

Understood in this fashion, the Supreme Court’s decision in Bouie simply does

not afford Tarver any right to relief. Indeed, Tarver’s case stands in stark contrast to

the situation that confronted the Court in Bouie. Unlike the defendants in Bouie,

12

execution of an innocent bank customer that murder was illegal and could result in a

life sentence. The criminal nature of murder, and the severe penalties for that crime,

were fixed and immutable elements of the law when Tarver killed his victim. Further,

Bouie has no application here where the sentence recently imposed upon Tarver of

40 years-to-life imprisonment was authorized under state law and was highly

favorable to Tarver since it resulted in his immediate release on parole.

Yet, while the Supreme Court’s decision in Bouie affords Tarver no relief,

cases construing the Court’s decision in Miller v. Alabama, confirm that that the 40

years-to-life sentence actually imposed upon Tarver is lawful and proper. Following

the seminal decision in Miller, numerous courts have had occasion to examine

whether the re-sentencing of juvenile offenders to serve a minimum sentence of a

term of years under an indeterminate sentencing system violates the Constitution.

Those courts have consistently held that such sentences are consistent with Miller

and do not violate the defendant’s constitutional rights, provided that the length of

these sentences are not tantamount to life in prison without the possibility of parole.

See e.g., McCain v. Frakes, No. 8:18-CV-190, 2019 WL 2086001, at *3 (D. Neb.

May 13, 2019); Jensen v. Young, No. 4:18-CV-04041-RAL, 2019 WL 653062, at *8

(D.S.D. Feb. 15, 2019); Garza v. Frakes, No. 8:17-CV-474, 2018 WL 1710183, at *4

(D. Neb. Apr. 9, 2018).

13

simple reason: He was re-sentenced to a minimum term of years and was in fact

promptly paroled by state authorities following his re-sentencing. Thus, Tarver has

received precisely the relief contemplated by Miller and its progeny, the opportunity

for favorable parole consideration following his juvenile murder conviction.

III. Conclusion

Accordingly, for the foregoing reasons, upon consideration of this Petition for

Writ of Habeas Corpus, the petition will be DENIED, and a certificate of

appealability will not issue as Tarver has not demonstrated “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Buck v. Davis,

137 S.Ct. 773-75 (2017); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack

v. McDaniel, 529 U.S. 473, 484 (2000).

An appropriate order follows.

Submitted this 31st day of March 2020.

S/Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

14

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FOSTER LEE TARVER, : CIVIL NO. 1:20-CV-199

:

Petitioner, :

:

v. :

: (Magistrate Judge Carlson)

PENNSYLVANIA ATTORNEY :

GENERAL OFFICE, et al., :

:

Respondents. :

ORDER

AND NOW, this 31st day of March 2020, in accordance with the accompanying

Memorandum Opinion, IT IS ORDERED that this Petition for Writ of Habeas

Corpus, the petition is DENIED, and a certificate of appealability will not issue as

Tarver has not demonstrated “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2); see also Buck v. Davis, 137 S.Ct. 773-75 (2017);

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack v. McDaniel, 529 U.S.

473, 484 (2000).

S/Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

15