                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                      No. 13-4389
                                    _______________

                                     RICKY LEAKE

                                             v.

                                JEFFREY N. DILLMAN,

                                                         Appellant
                                    _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (D.C. Civil No. 2-10-cv-07406)
                         District Judge: Hon. Berle M. Schiller
                                   _______________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    October 23, 2014

          BEFORE: FUENTES, GREENBERG AND COWEN, Circuit Judges

                                (Filed: December 5, 2014)

                                    _______________

                                       OPINION*
                                    _______________


______________
*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
COWEN, Circuit Judge.

       The Commonwealth has appealed the District Court’s order adopting the magistrate

judge’s report and recommendation (the “R&R”). The magistrate judge recommended

granting the petition for habeas corpus filed by petitioner-appellee, Ricky Leake

(“Petitioner”), in the United States District Court for the Eastern District of Pennsylvania.

Because we conclude that Petitioner’s claims are procedurally defaulted, we will reverse.

                                              I.

       Because we write solely for the parties, we will only set forth the facts necessary to

inform our analysis.

       Petitioner, a state prisoner, was convicted following a jury trial with his co-

defendant Carl Murphy. He filed a pro se petition under the Pennsylvania Post Conviction

Relief Act (“PCRA”). Counsel was appointed and filed an amended petition asserting

various claims of ineffective assistance of counsel. The PCRA petition was dismissed.

Petitioner filed an appeal with the Pennsylvania Superior Court. In its order dismissing

the petition, the Superior Court affirmed the PCRA Court, concluding that Petitioner had

failed to meaningfully develop any of his claims of ineffective assistance of counsel and

was therefore not entitled to any relief. The Pennsylvania Supreme Court later denied the

petition for allowance of appeal.

       Petitioner then filed a petition for a writ of habeas corpus in federal court,

reiterating his claims of ineffective assistance of counsel. The matter was referred to a

federal magistrate who, in the R&R, recommended the petition be granted. The District


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Court approved and adopted the R&R. The Commonwealth’s appeal followed.

                                              II.

       As an initial matter, there is no merit to Petitioner’s argument that we should not

consider the issue of procedural default because the district court did not grant a certificate

of appealability as to that issue. As previously noted, “[t]he Commonwealth is not

required to obtain a certificate of appealability in order to appeal the District Court’s

decision to grant [a petitioner’s] petition for writ of habeas corpus.” Wilson v. Beard, 589

F.3d 651, 657 (3d Cir. 2009). We therefore consider whether Petitioner’s claims are

procedurally defaulted.

       The R&R concluded that Petitioner had fairly presented his claims of ineffective

assistance to the state courts. But even when a petitioner asserts a claim in state court,

federal habeas courts “‘will not review a question of federal law decided by a state court if

the decision of that court rests on a state law ground that is independent of the federal

question and adequate to support the judgment.’” Lambrix v. Singletary, 520 U.S. 518,

522 (1997) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).

       The Superior Court here deemed waived all of Petitioner’s claims of ineffective

assistance of counsel due to his “failure to meaningfully develop these claims . . . and to

support them with appropriate legal authority.” (App. at 279 (Superior Court opinion)

(citing Commonwealth v. Bracey, 795 A.2d 935, 940 n.4 (Pa. 2001)) (noting in the

context of the PCRA that “an undeveloped argument, which fails to meaningfully discuss

and apply the standard governing the review of ineffectiveness claims, simply does not


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satisfy Appellant's burden of establishing that he is entitled to any relief.”).); see also Pa.

R. A. P. 2119(a) (requiring that each question to be argued be “followed by such

discussion and citation of authorities as are deemed pertinent.”). The Commonwealth has

argued that because the Superior Court deemed Petitioner’s claims waived, its decision

rested on an independent and adequate state law ground. Accordingly, it asserts

Petitioner’s claims are procedurally defaulted and barred from habeas review. Petitioner

did not respond to these arguments in his opposition brief. For the reasons detailed below,

we find the Commonwealth’s arguments persuasive and conclude that Petitioner’s claims

are procedurally defaulted.

       A state procedural rule is “independent” if it is separate from the federal issue.

Here, it is beyond dispute that the Superior Court’s determination that Petitioner had

waived his claims was pursuant to state law, and was separate from the federal issues

before it. See Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir. 1999) (“[T]he basis for the

state court’s rejection of the ineffective assistance of counsel claims was state court

procedural default . . . Clearly, this disposition was an independent state ground.”).

Moreover, a state procedural rule is adequate if it was “firmly established and regularly

followed” at the time of the alleged procedural default. Ford v. Georgia, 498 U.S. 411,

424 (1991). To be considered firmly established and regularly followed, “(1) the state

procedural rule [must] speak[ ] in unmistakable terms; (2) all state appellate courts [must

have] refused to review the petitioner's claims on the merits; and (3) the state courts'

refusal in this instance [must be] consistent with other decisions.” Nara v. Frank, 488


                                               4
F.3d 187, 199 (3d Cir. 2007). This test is met here.

       The requirement that Petitioner must meaningfully develop his arguments on

appeal and cite to appropriate authorities has been stated in unmistakable terms by the

Pennsylvania Supreme Court, see Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa.

2002) (“[I]t is a well settled principle of appellate jurisprudence that undeveloped claims

are waived and unreviewable on appeal”), and is embodied in the state’s rules of appellate

procedure, see Pa. R. A. P. 2119(a). Moreover, the Superior Court refused to consider

Petitioner’s claims on the merits and its refusal is consistent with other decisions. See

Bracey, 795 A.2d at 940 n.4, Clayton, 816 A.2d at 221. We conclude that the Superior

Court’s decision was based upon an independent and adequate state law ground. See

Nara, 488 F.3d at 199.

       Moreover, “‘federal habeas corpus relief does not lie for errors of state law.’”

Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780

(1990)). This remains true even if the state procedural ruling is incorrect. Estelle, 502

U.S. at 71–72; see also Kontakis v. Beyer, 19 F.3d 110, 117 n.12 (3d Cir. 1994)

(reminding that “a state court's misapplication of its own law does not generally raise a

constitutional claim.”) (citation omitted). Thus, even if the Superior Court incorrectly

deemed waived certain of Petitioner’s ineffective assistance claims – a point Petitioner

does not argue here – habeas relief would not be warranted, as it is “well established that a

state court's misapplication of its own law does not generally raise a constitutional claim.

The federal courts have no supervisory authority over state judicial proceedings and may


                                              5
intervene only to correct wrongs of constitutional dimension.” Taylor v. Horn, 504 F.3d

416, 448 (3d Cir. 2007); see also id. (quoting Estelle v. McGuire, 502 U.S. 62, 67-68

(1991)) (“Even assuming the state court failed to follow the law of Pennsylvania, in this

federal habeas case, we are limited to deciding whether [the petitioner’s] conviction and

sentence ‘violated the Constitution, laws, or treaties of the United States.’”).

       Notwithstanding that an adequate and independent finding of procedural default

will bar federal habeas review of the federal claim, a petitioner can avoid the bar by

showing “cause for the default and prejudice attributable thereto,” or by “demonstrat[ing]

that the failure to consider the federal claim will result in a fundamental miscarriage of

justice.” Harris v. Reed, 489 U.S. 255, 262 (1989). Petitioner has not asserted, much less

demonstrated, any cause or prejudice, nor has he argued that he will suffer any

fundamental miscarriage of justice as a result of this court’s failure to review his claim.

We conclude that Petitioner’s claims of ineffective assistance are procedurally defaulted

and are therefore precluded from review.

                                             III.

       For the foregoing reasons, we vacate the District Court’s order and judgment dated

October 8, 2013 and remand for further proceedings consistent with this opinion.




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