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April 14, 1989


The opinion of the court was delivered by: BRODERICK


 In this pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, petitioner Dean Chacker, who is currently incarcerated at the State Correctional Institution at Pittsburgh, Pennsylvania, alleges the following claims: (1) his guilty plea was not knowingly and voluntarily entered due to the state court's failure to fully explain to him: (a) the elements of the crimes to which he was pleading guilty, (b) the Commonwealth's burden of proof, (c) petitioner's right to a trial by jury, and (d) the "presumption of innocence;" (2) his counsel advised him to enter a plea of guilty and indicated that petitioner would likely be sentenced to a maximum of 10-20 years imprisonment were he to so plead; (3) he was denied due process because the trial court failed to consider his mental condition at the time of sentencing or provide him with an opportunity to produce witnesses; (4) his sentence was deferred pending completion of a psychiatric evaluation at a state mental hospital; (5) the sentence imposed was excessive; (6) his plea counsel was ineffective for: (a) failing to object, at the plea hearing and on appeal, to the allegedly deficient plea colloquy engaged in by the plea judge, and (b) for both failing to advise petitioner of his right to challenge the validity of his guilty plea and failing to preserve that issue on appeal; and (7) his appellate counsel was ineffective for: (a) failing to raise the alleged ineffectiveness of plea counsel, and (b) because a conflict of interest existed between him and petitioner's plea counsel.

 I. Procedural History

 On October 15, 1973, in Upper Moreland Township, a seven year old girl was taken from her bedroom and raped. One month later, on November 19, 1973, petitioner was arrested after Upper Moreland police observed him prowling at a private residence. Subsequent to the arrest, petitioner confessed to both a series of prowling incidents and burglaries that had previously occurred as well as to raping the seven year old victim.

 On April 4, 1974, petitioner entered a negotiated plea of guilty before the Honorable Joseph H. Stanziani of the Court of Common Pleas of Montgomery County on one count of rape, four counts of burglary, four counts of theft of movable property, and four counts of loitering and prowling at nighttime. After accepting petitioner's plea, Judge Stanziani deferred imposition of sentence and ordered petitioner to Norristown State Hospital for psychiatric evaluation. On March 24, 1975, following completion of petitioner's psychiatric evaluation by the staff at Norristown State Hospital, the late President Judge A. Benjamin Scirica found petitioner to be mentally ill and, pursuant to Section 410 of the Mental Health and Retardation Act, committed him to Fairview State Hospital to await sentencing.

 On March 16, 1977, petitioner appealed his sentence to the Pennsylvania Superior Court which, on December 21, 1979, affirmed the judgment of sentence. The sentence was, however, vacated as to the four counts of theft which merged into burglary. Thus, at that time, petitioner's sentence stood at 52 to 104 years. Petitioner then sought and obtained permission to appeal to the Supreme Court of Pennsylvania. After argument, however, the appeal was dismissed on June 24, 1982 as having been improvidently granted. Following the Supreme Court's dismissal, petitioner, on August 15, 1982, filed a petition pursuant to Pennsylvania's Post Conviction Hearing Act ("PCHA"), alleging that he was denied effective assistance of counsel because plea counsel failed to (1) advise him of his right to withdraw his plea, (2) failed to file the proper motions to withdraw the plea, and (3) failed to object to the imposition of multiple sentences. Petitioner further alleged that appellate counsel was ineffective for not raising the ineffectiveness of plea counsel. On October 15, 1982, Judge Stanziani dismissed petitioner's PCHA petition without a hearing.

 On June 15, 1984, the Superior Court reversed Judge Stanziani's order of October 15, 1982, and remanded the matter for an evidentiary hearing with respect to the alleged ineffectiveness of both plea and appellate counsel. An evidentiary hearing was held on January 7, 1985. On May 15, 1985, the Montgomery County Court of Common Pleas denied petitioner's PCHA petition. Petitioner appealed to the Pennsylvania Superior Court which, on April 21, 1986, affirmed the lower court's conclusion that neither petitioner's plea counsel nor appellate counsel was ineffective. Petitioner appealed to the Supreme Court of Pennsylvania which denied the petition for allowance of appeal on March 16, 1987.

 On May 28, 1987, petitioner filed a petition for writ of habeas corpus which, pursuant to 28 U.S.C. § 636 and Local Rule of Civil Procedure 7(e), was referred to the United States Magistrate. On July 19, 1988, petitioner was granted leave to file a Traverse to the Response to his petition for writ of habeas corpus. The Traverse was filed on September 9, 1988. On February 23, 1989, the Magistrate issued a Report and Recommendation in which he recommended that the petition for writ of habeas corpus be denied. Petitioner was notified of his right to file written objections with the Clerk of Court. Nevertheless, on March 6, 1989, petitioner filed a "Motion for Reconsideration." On March 27, 1989, this Court denied petitioner's motion but granted him an additional ten days to file written objections. On April 5, 1989, petitioner filed written objections to the Magistrate's Report and Recommendation.

 II. Procedural Deficiencies

 Local Rule of Civil Procedure 7(IV)(b) mandates the respective responsibilities of both petitioner and this Court pursuant to 28 U.S.C. § 636(b)(1)(B):

Any party may object to a magistrate's proposed findings, recommendations or report . . . within ten days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. . . . A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. (emphasis added)

 An examination of petitioner's objections reveals a total lack of compliance with the aforecited rule. Indeed, rather than specifically identifying portions of the Magistrate's Report and Recommendation to which he objects, petitioner advances a single conclusory allegation, to wit:

After careful review of this Magistrate's Report and Recommendation it is apparent that this Magistrate never reviewed petitioner's Traverse as there is absolutely no mention of petitioner's traverse in the Magistrate's Report and Recommendation nor to the merits of the Constitutional claims discussed therein. The traverse contains uncontested averments of documented facts. These facts include, among other things, that no record exists which established that a colloquy was conducted by the trial court which comported explanation of the elements of the crimes for which petitioner entered a plea of guilty in violation of United States Constitutional law.

 Petitioner's Objections, para. 6-7. We note that in the absence of substantiated objections to specific portions of the Magistrate's Report and Recommendation, we are not required to undertake a de novo review. See Henderson v. Carlson, 812 F.2d 874, 877-79 (3d Cir. 1987).

 Nevertheless, despite the procedural deficiencies in petitioner's objections, we elect to undertake a de novo review of the entire record and applicable law. See generally Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). To that end, we note, preliminarily, that while the Magistrate, in his Report and Recommendation, did not specifically cite to petitioner's traverse, with but a single exception, he fully and thoroughly addressed each of the points raised by petitioner in that pleading. Indeed, the only issue raised in the traverse not directly addressed by the Magistrate was the decision by the trial court to defer sentencing until the required psychiatric evaluation of petitioner was completed. As discussed below, neither that issue nor any of those addressed by the Magistrate in his Report and Recommendation constitute grounds for habeas relief.

 III. Involuntary Guilty Plea

 Petitioner first challenges the validity of his guilty plea on the basis that it was not intelligently and voluntarily entered due to the trial judge's failure to fully explain the following four factors: (1) the elements of the crimes to which petitioner was pleading guilty, (2) the Commonwealth's burden of proof, (3) the right to trial by jury, and (4) the "presumption of innocence." In evaluating petitioner's claims, we note that the constitutional prerequisites for a valid guilty plea are substantially the same in federal and state courts. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); United States v. Trott, 779 F.2d 912, 914 n. 1 (3d Cir. 1985).

 Prior to accepting a guilty plea, a trial judge has a duty to make an affirmative showing that the plea is intelligent and voluntary. Boykin v. Alabama, 395 U.S. at 242, 89 S. Ct. at 1711. Indeed, the "long standing test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203 (1985) quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970). A guilty plea may be constitutionally infirm if the defendant failed to understand the constitutional rights he was waiving by pleading guilty or had an incomplete understanding of the charges lodged against him. Henderson v. Morgan, 426 U.S. 637, 645 n. 13, 96 S. Ct. 2253, 2257 n. 13, 49 L. Ed. 2d 108 (1976).

 The Supreme Court, in McCarthy v. United States, 394 U.S. 459, 465, 89 S. Ct. 1166, 1170, 22 L. Ed. 2d 418 (1969), held that the most efficient method of insuring the intelligent, voluntary nature of the guilty plea is through the colloquy between the trial judge, the defendant, and the defendant's attorney. The Court stated that such a colloquy is:

Designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary. Second, . . . to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination.

 Id. See also United States v. Allen, 804 F.2d 244, 247 (3d Cir. 1986). At a minimum, such a colloquy should establish that the defendant understood his right to a jury trial, the acts sufficient to constitute the offense for which he is charged, and the permissible range of sentences. Boykin v. Alabama, 395 U.S. at 245 n. 7, 89 S. Ct. at 1713 n. 7.

 In the instant case, the state trial judge, some fifteen years ago, conducted a colloquy which meets or exceeds contemporary Supreme Court requirements. Indeed, the trial judge first explained the nature of the proceeding. (N.T. 4/4/74 at 3-4). Before accepting petitioner's guilty plea, the court questioned petitioner about his ability to understand the proceedings and the consequences of the plea. (N.T. 4/4/74 at 7-10, 14-15, 17-19). The trial judge fully explained the rights that petitioner would be surrendering, including the right to a jury trial and the right to require the state to prove his guilt beyond a reasonable doubt, were he to plead guilty:

Q: Mr. Chacker, with respect to your saying that you understand, do you also understand that you have a right to stand trial for those offenses before a jury, and that the Commonwealth would have to prove their case in each one of these offenses beyond a reasonable doubt; and that by pleading guilty, you are waiving your right to that jury trial or those jury trials if there were more than one, or to a jury trial on all of them; do you understand that?
A: I'm fully aware.

 (N.T. 4/4/74 at 14).

 The petitioner was fully informed of both the nature of and the factual basis underlying the crimes to which he was pleading, to wit, rape, burglary, theft, and loitering and prowling. (N.T. 4/4/74 at 9-13). In response to specific questioning, petitioner stated that he fully understood the nature of the charges against him. (N.T. 4/4/74 at 12, 13). In addition, petitioner was fully informed of the permissible range of sentences that he faced as a result of pleading guilty:

Q: So, Mr. Chacker, if my mathematics is correct, the maximum imprisonment that you are facing would be one hundred and eleven years . . . Do you understand that Mr. Chacker?
A: I'm fully aware of it.

 (N.T. 4/4/74 at 12).

 As a further protection of petitioner's rights, the trial judge continually questioned Mr. Chacker regarding his ability to understand the proceedings and the consequences of his plea:

Q: Do you feel that there is anything else about these matters about which you would like to talk with Mr. Salus [petitioner's attorney] before you enter your plea of guilty, because I want to be sure that you understand that you are waiving these rights and that you know exactly what you are doing? That's the reason that we have gone through the entire list of charges ...

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