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O'HALLORAN v. RYAN

December 30, 1986

FRANCIS O'HALLORAN
v.
JOSEPH RYAN, Superintendent, et al.



The opinion of the court was delivered by: LORD

 Lord, S.J. December

 Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. I referred his petition to a United States magistrate for a report and recommendation. See 28 U.S.C. § 636(b)(1). The magistrate concluded that petitioner had exhausted his state remedies as required by 28 U.S.C. § 2254(b), that the state court's findings of fact were entitled to a presumption of correctness under 28 U.S.C. § 2254(d), that a federal evidentiary hearing was not needed, and that petitioner was not entitled to relief. Petitioner timely filed objections to the magistrate's report and recommendation. Accordingly, I have reviewed the record and determined the issues de novo. See 28 U.S.C. § 636(b)(1). For the reasons explained herein, I disagree with the magistrate's conclusion that petitioner has exhausted his state remedies, and therefore I will not adopt the report and recommendation.

 I. *fn1"

 In relation to a burglary that occurred on September 9, 1981, petitioner and two codefendants were charged with burglary, criminal trespass, theft by unlawful taking, receiving stolen property, carrying firearms without a license, and criminal conspiracy. Pursuant to a plea bargain, the terms of which are contested by the parties, petitioner entered a plea of guilty to the burglary charge, and the state dropped the five additional charges. Petitioner entered that plea without the assistance of counsel. He received a sentence of four to ten years.

 Thereafter, through counsel, petitioner moved for reconsideration of sentence and/or to withdraw his guilty plea. He alleged, inter alia, that his sentence violated his plea bargain, which petitioner contended included a promise that he would receive the same sentence as his codefendant, Edward Henderson, who had received a sentence of five years probation. He also complained that, because he had entered his guilty plea with the belief that he would receive the same sentence as Henderson, the plea was not knowingly and voluntarily entered.

 The trial court held an evidentiary hearing on petitioner's motion. Petitioner testified on his own behalf, and Michael McIntyre, the assistant district attorney with whom petitioner had discussed the terms upon which he might enter a guilty plea, testified for the state. No other witnesses were called. By order dated May 23, 1983, the trial court denied petitioner's motion, and some time thereafter issued a memorandum opinion explaining its ruling. The court found that the only bargain between petitioner and the state was that, if petitioner pleaded guilty to burglary, the state would drop all additional charges. Insofar as it addressed petitioner's claim that his guilty plea was not knowing and voluntary, the court stated that, pursuant to its colloquy with petitioner at the time he pleaded guilty, it had found that his plea was being entered "knowingly, understandingly, intelligently, and voluntarily."

 Petitioner filed a pro se appeal. On July 26, 1985, the Superior Court affirmed the trial court's judgment of sentence. Commonwealth v. O'Halloran, 348 Pa. Super. 634, 501 A.2d 293 (1985). In a memorandum opinion, the court held, inter alia, that petitioner's guilty plea had been entered knowingly and voluntarily, and that the trial court had correctly found that there was no plea agreement as to petitioner's sentence.

 The Superior Court also addressed petitioner's claim, raised for the first time on appeal, that the attorney who represented him at the hearing on his motion for reconsideration of sentence and/or to withdraw his guilty plea was ineffective. As to this claim, the court rejected petitioner's contention that his attorney was ineffective in failing to subpoena Henderson, his codefendant, and Ms. McCadden, the trial judge's law clerk, to testify at the hearing. The court concluded that petitioner had "not shown that the testimony of the above-mentioned persons would have been helpful to his defense." Commonwealth v. O'Halloran, No. 01683 PHL 83, slip op. at 8-9 (Pa. Super. Ct. July 26, 1985). In a footnote, the court elaborated on this deficiency as follows:

 
[Petitioner] also includes in his appellate brief an argument entitled "AFTER DISCOVERED EVIDENCE." He alleges therein that on December 15, 1983, he learned that a Ms. McCadden was employed as a clerk to the sentencing judge, is the wife of attorney Huber, and a witness to the assistant district attorney's plea bargain proposal. He further alleges that Huber never informed him of these facts and failed to subpoena Ms. McCadden to testify concerning the agreement. These allegations are without support in the record. This court can only consider the facts in the record and not those facts located only in a party's brief.

 Id. at 9 n.4 (citations omitted).

 Following the Superior Court's affirmance of his judgment of sentence, petitioner unsuccessfully sought allocatur in the Pennsylvania Supreme Court. Commonwealth v. O'Halloran, No. 986 (Pa. Apr. 7, 1986). Shortly after allocatur was denied, petitioner filed this federal habeas action.

 II.

 One of the grounds upon which petitioner seeks relief is that his attorney was ineffective for failing to subpoena McCadden to testify at his post-sentence hearing. *fn2" He states in his petition that McCadden sat next to him during the plea negotiations ...


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