                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2008

Nicoloudakis v. DA Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1792




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 07-1792
                                       ___________

                             FRANKLIN NICOLOUDAKIS,
                                               Appellant

                                             v.

          LYNNE ABRAHAM, PHILADELPHIA DISTRICT ATTORNEY;
         ROBERT J. MALVESTUTO, CO-CHIEF PROBATION OFFICER;
        THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          D.C. Civil Action No. 05-cv-00563
                             (Honorable Timothy J. Savage)
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                September 15, 2008
       Before: SCIRICA, Chief Judge, HARDIMAN and COWEN, Circuit Judges

                                 (Filed October 17, 2008)
                                       ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM.

       Appellant, Franklin Nicoloudakis, appeals an order of the United States District

Court for the Eastern District of Pennsylvania dismissing his petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254.
         Following a bench trial in the Philadelphia County Court of Common Pleas,

Nicoloudakis was convicted of one count of corrupting the morals of a minor. See 18 Pa.

Cons. Stat. Ann. § 6301(a)(1). The charge stemmed from an incident in December 1999,

in which Nicoloudakis propositioned a fifteen-year-old boy for sex. On February 7, 2002,

Nicoloudakis was sentenced to three years of probation. Nicoloudakis appealed and, with

the assistance of new counsel, raised, inter alia, three ineffective assistance of trial

counsel claims. In particular, Nicoloudakis alleged that his trial counsel failed to cross-

examine the victim concerning an alleged bias against homosexuals, neglected to argue

that a mistake of age was not precluded as a defense to the charges, and overlooked the

Commonwealth’s introduction of a photograph of the victim that had not been produced

in discovery. While the direct appeal was pending, the Pennsylvania Supreme Court held,

for the first time, that ineffective assistance of counsel claims should be raised in

collateral proceedings rather than on direct appeal. See Commonwealth v. Grant, 813

A.2d 726, 738 (Pa. 2002). Relying on Grant, the Pennsylvania Superior Court dismissed

Nicoloudakis’ ineffectiveness of trial counsel claims without prejudice to raising them on

collateral review.1 The Pennsylvania Supreme Court denied allocatur in April 2004.

         On December 10, 2004, Nicoloudakis filed a petition pursuant to the Post

Conviction Relief Act (“PCRA”), raising new ineffective assistance of counsel claims.

Without addressing the merits of those claims, the PCRA court dismissed the petition in


   1
       The Superior Court denied Nicoloudakis’ remaining claims on the merits.

                                               2
March 2005 because Nicoloudakis’ probationary sentence had by then expired. See 42

Pa. Cons. Stat. Ann. § 9543(a)(1)(i) (“To be eligible for relief . . . the petitioner must

plead and prove . . . that the petitioner . . . is at the time relief is granted . . . currently

serving a sentence of imprisonment, probation or parole for the crime.”); Commonwealth

v. Ahlborn, 683 A.2d 632, 637-40 (Pa. Super. Ct. 1996) (holding that the custody

requirement applies as of the date relief could be granted). The Superior Court agreed

that Nicoloudakis was no longer eligible for relief under the PCRA. Allocatur again was

denied.

       Meanwhile, on February 4, 2005, three days before the expiration of his

probationary period, Nicoloudakis filed in the United States District Court for the Eastern

District of Pennsylvania a petition under 28 U.S.C. § 2254, which he later amended.2 The

petition presented, among other challenges, several of the ineffective assistance of

counsel claims that had been raised in Nicoloudakis’ direct appeal and PCRA petition. A

Magistrate Judge concluded that the claims were procedurally defaulted. The District




   2
     A Magistrate Judge initially recommended that the petition be dismissed for lack of
jurisdiction because Nicoloudakis did not meet the “in custody” habeas requirement. See
28 U.S.C. § 2254(a) (providing that district court has jurisdiction to entertain a habeas
petition only if the petitioner is “in custody in violation of the Constitution or laws or
treaties of the United States.”). The Commonwealth conceded, however, that
Nicoloudakis met the custody requirement. See Carafas v. LaVallee, 391 U.S. 234, 238
(1968) (stating that custody is determined at the time the habeas petition is filed); Lee v.
Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (holding that custody requirement is satisfied
where the petitioner is on probation). Consequently, the District Court referred the case
back to the Magistrate Judge for further consideration.

                                                  3
Court agreed, dismissed the § 2254 petition, and denied issuance of a certificate of

appealability (“COA”). After the District Court denied his timely motion under Fed. R.

Civ. P. 59(e), Nicoloudakis appealed.

       We have jurisdiction over the instant appeal pursuant to 28 U.S.C. §§ 1291 and

2253.3 Because no evidentiary hearing was conducted in the District Court, our review of

the District Court’s legal conclusions is plenary. See Jacobs v. Horn, 395 F. 3d 92, 99 (3d

Cir. 2005). Our review is also plenary as to determinations regarding exhaustion and

procedural default. See Albrecht v. Horn, 485 F.3d 103, 114 (3d Cir. 2007).

       In general, “[b]efore a federal court may grant habeas relief to a state prisoner, the

prisoner must exhaust his remedies in state court. In other words, the state prisoner must

give the state courts an opportunity to act on his claims before he presents those claims to

a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);

see also 28 U.S.C. § 2254(b)(1)(A). A prisoner has not exhausted his state remedies “if

he has the right under the law of the State to raise, by any available procedure, the

question presented.” 28 U.S.C. § 2254(c). An exception to the exhaustion requirement

exists, however, where “there is an absence of available State corrective process,” 28

U.S.C. § 2254(b)(1)(B)(i), or “circumstances exist that render such process ineffective to


   3
     We do not accept the Commonwealth’s invitation to dismiss this case for lack
jurisdiction because the COA did not specify that Nicoloudakis had made a substantial
showing of the denial of a constitutional right. See Lambert v. Blackwell, 387 F.3d 210,
231 (3d Cir. 2004); Szuchon v. Lehman, 273 F.3d 299, 311 n.5 (3d Cir. 2001); Villot v.
Varner, 373 F.3d 327, 337 n.13 (3d Cir. 2004).

                                              4
protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii); see also Parker v.

Kelchner, 429 F.3d 58, 62 (3d Cir. 2005).

       At the time Nicoloudakis filed his direct appeal, in October 2002, “the general rule

[in Pennsylvania] was that claims of ineffectiveness were to be presented at the time a

petitioner obtained new counsel.” Grant, 813 A.2d at 733 (citation omitted). That is

exactly what Nicoloudakis did. But during the pendency of his direct appeal, the

Pennsylvania Supreme Court held that ineffectiveness claims should be brought in a

PCRA petition. See id. at 738. Because that rule did not render unavailable the state

corrective process or bar Nicoloudakis from raising his trial counsel ineffectiveness

claims, it did not provide an exception to the exhaustion requirement or constitute a basis

for procedural default. Importantly, however, a separate state procedural rule, namely the

custody requirement of 42 Pa. Cons. Stat. Ann. § 9543(a)(1)(i), did prevent Nicoloudakis

from obtaining state court relief.

       Under similar circumstances, we recently held that noncompliance with

Pennsylvania’s custody requirement resulting from expiration of the petitioner’s sentence

did not result in a procedural default necessitating a cause and prejudice analysis. See

Leyva v. Williams, 504 F.3d 357, 368-69 (3d Cir. 2007). Instead, we reasoned that

expiration of the sentence, a factor outside the petitioner’s control, excused the

petitioner’s failure to exhaust by eliminating the state corrective process. See id. (citing

§ 2254(b)). Here too, the circumstances of Nicoloudakis’ case rendered state court



                                              5
review of his ineffective assistance claims impossible. See § 2254(b)(1)(B)(ii). These

claims were dismissed without prejudice on direct appeal pursuant to Grant, and the

remaining avenue for relief – PCRA proceedings – was foreclosed when Nicoloudakis’

sentence expired. Therefore, the Magistrate Judge should have excused exhaustion and

proceeded to the merits of the ineffective assistance of counsel claims that Nicoloudakis

raised in state court and presented in his § 2254 petition.

       We will now proceed to their merits of the ineffectiveness claims because the

parties have addressed them in their briefs. Cf. Leyva, 504 F.3d at 370 (remanding where

parties had not been briefed or argued merits of claims improperly deemed procedurally

defaulted). Because the reviewable claims were not addressed on the merits by the state

courts, we must use the pre-AEDPA standard and “conduct a de novo review over pure

legal questions and mixed questions of law and fact . . . . However, the state court’s

factual determinations are still presumed to be correct, rebuttable upon a showing of clear

and convincing evidence.” Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (citing 28

U.S.C. § 2254(e)(1)).

       To establish constitutional ineffectiveness of counsel, a petitioner must

demonstrate that his counsel’s performance was so deficient that it fell below an objective

standard of reasonableness under prevailing professional norms. See Strickland v.

Washington, 466 U.S. 668, 688 (1984). The petitioner must also show that counsel’s

deficient performance was prejudicial. Id. at 687-88. To establish prejudice, it must



                                              6
appear to a “reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine the confidence in the outcome.” Id. at 694. “Judicial scrutiny of

counsel’s performance must be highly deferential,” as “[t]here are countless ways to

provide effective assistance in any given case.” Id. at 689.

       After thoroughly reviewing Nicoloudakis’ ineffectiveness claims, we are

convinced that none of the alleged deficiencies in counsel’s performance satisfies

Strickland’s prejudice requirement. At trial, Nicoloudakis denied the victim’s

accusations, which he argued were borne out of the victim’s animosity toward

homosexuals. On direct appeal, Nicoloudakis argued that his attorney, by cross-

examining the victim about his alleged bias, could have demonstrated that the victim’s

allegations were fabricated. Importantly, however, even if the victim had admitted to

having negative feelings about homosexuals, such an admission would not necessarily

indicate that his story was fabricated. Moreover, the testimony of a police officer, who

stated that the victim appeared scared and upset when he reported the incident shortly

after it occurred, further undermines any suggestion that the victim was not telling the

truth. Given these facts, the failure to cross-examine the victim in an attempt to discredit

him did not prejudice Nicoloudakis’ defense.

       Nicoloudakis also claimed that his attorney neglected to argue that mistake of age

was not precluded as a defense to the charges. Nicoloudakis was convicted under 18 Pa.



                                              7
Cons. Stat. Ann. § 6301(a)(1), which provides that “[w]hoever, being of the age of 18

years and upwards, by any act corrupts or tends to corrupt the morals of any minor less

than 18 years of age, . . . commits a misdemeanor of the first degree.” The statute allows

a mistake of age defense only when “the criminality of conduct depends upon the

corruption of a minor whose actual age is 16 years or more but less than 18 years.”

§ 6301(d)(2). A plausible reading of the statute is that, if the minor’s actual age is under

16, “it is no defense that the actor did not know the age of the minor or reasonably

believed the minor to be older than 18 years.” § 6301(d)(1). Here, the victim told

Nicoloudakis that he was eighteen years old. But because the victim was in fact fifteen

years old, Nicoloudakis was precluded from using a mistake of age defense. Therefore,

there is no reasonable probability that the outcome of Nicoloudakis’ trial would have been

different had his attorney pursued such a defense.

       Nicoloudakis also claimed that his attorney failed to object to the

Commonwealth’s introduction of a photograph of the victim that had not been produced

in discovery. As a means to rebut Nicoloudakis’ mistake of age argument, the

Commonwealth proposed calling the victim’s mother as a witness to authenticate a

photograph of her son that was taken around the time of the offense. In the interest of

judicial economy, the parties agreed to stipulate that if the victim’s mother was called, she

would testify that the photograph was taken in the fall of 1999 and that the victim’s

appearance in the photograph was similar to his appearance in December 1999, when the



                                              8
offense occurred. Because Nicoloudakis was precluded from asserting a mistake of age

defense, however, any evidence concerning the victim’s appearance was irrelevant. Thus,

his attorney’s alleged failure to oppose introduction of the photograph could not have

resulted in any prejudice.

       In his PCRA petition, Nicoloudakis complained that his attorney failed to argue

that 18 Pa. Cons. Stat. Ann. § 6301(d)(1) – the provision limiting the availability of a

mistake of age defense – was unconstitutional because it “force[d]” the trial court to

ignore “exculpatory evidence” that the victim told Nicoloudakis that he was eighteen

years old. In support of his claim, Nicoloudakis relied on Carella v. California, 491 U.S.

263 (1989), where the Supreme Court found that jury instructions unconstitutionally

relieved the government of its burden to establish every element of the charged offense

beyond a reasonably doubt. Id. at 266. Nicoloudakis contended that § 6301(d)(1) was

unconstitutional because it permitted the trial court to conclusively presume that he had

the requisite mens rea. But, unlike in Carella, where the jury instructions removed the

prosecution’s burden of establishing each element of the offense, § 6301(d)(1) represents

the legislature’s determination no mens rea element is required where the minor is under

sixteen years old. Because the underlying constitutional argument lacks merits,

Nicoloudakis’ trial attorney cannot be deemed ineffective for failing to raise it. See

Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000).




                                              9
       Accordingly, for the reasons stated, we will affirm the District Court’s judgment.4




   4
    Nicoloudakis’ request for oral argument and his motion to assign the appeal to the
panel that granted a COA are denied. His motion for leave to file a reply brief out of time
and his request to waive the word and page limitations in that brief are granted.
Nicoloudakis’ reply brief has been considered.

                                            10
