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GREENE v. STICKMAN

March 30, 2004.

THOMAS GREENE, Petitioner,
v.
WILLIAM STICKMAN, Superintendent, THE DISTRICT ATTORNEY OF THE COUNTY OF BUCKS COUNTY, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA Respondents



The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge

OPINION

This matter is before the court on the Petition for Writ of Habeas Corpus by a Person in State Custody filed by petitioner Thomas Greene on December 18, 2002.*fn1 It is also before the court on Petitioner's Objections to Report and Recommendation Filed by Magistrate Judge Caracappa, which Page 2 objections were filed August 13, 2003. For the reasons expressed below, we overrule petitioner's objections to United States Magistrate Judge Linda K. Caracappa's Report and Recommendation and approve and adopt that Report and Recommendation. Furthermore, we deny the petition for habeas corpus and decline to issue a certificate of appealability.

  Procedural History

  The within civil action was initiated by Mr. Greene's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. It is before the court on federal question jurisdiction. See 28 U.S.C. § 1331, 2254. Venue is appropriate because plaintiff was tried and convicted in Bucks County, Pennsylvania. See 28 U.S.C. § 118, 1391, 2241. The petition was filed on December 18, 2002.*fn2

  On January 6, 2003 the undersigned referred this matter to Magistrate Judge Caracappa for a Report and Recommendation. Magistrate Judge Caracappa's Report and Recommendation was filed July 31, 2003. On August 13, 2003 Petitioner's Objections to Report and Recommendation Filed by Magistrate Judge Caracappa was filed. The Respondent's Answer to Petitioner's Objections to Report and Recommendation Filed by Magistrate Judge Caracappa was filed August 27, 2003. Page 3

  State Court Proceedings

  On July 25, 1990 Thomas Greene was arrested and charged with murder of the first degree, robbery, conspiracy, and related offenses in regard to the murder of Michael Bannon. On October 4, 1990 the Commonwealth served notice that it intended to seek the death penalty. On the date set for trial, January 28, 1991, petitioner entered an open guilty plea to all charges before Judge William Hart Rufe III, of the Court of Common Pleas of Bucks County, Pennsylvania. On January 29, 1991 Judge Rufe sentenced Mr. Green to life imprisonment with a consecutive sentence of incarceration for not less than 150, nor more than 300, months.

  Petitioner filed a motion for reconsideration of sentence on February 15, 1991. On March 8, 1991 following a hearing on the motion, Judge Rufe denied the motion. No direct appeal was filed.

  On July 8, 1993 petitioner filed his first petition under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9551. On April 19, 2000 court-appointed PCRA counsel Brian K. Wiley filed a supplemental motion for post conviction relief. A hearing on this petition was held April 24, 2000. Senior Judge Ward F. Clark denied the petition on July 13, 2000.

  Petitioner then filed a pro se notice of appeal in the state court. On February 1, 2001 the Superior Court of Page 4 Pennsylvania remanded the appeal for the appointment of counsel and for briefing by that counsel. The PCRA court appointed Neil C. Erikson, Esquire as defense counsel on March 26, 2003. By Order and Opinion dated September 11, 2001, the Superior Court treated petitioner's appeal as a direct appeal nunc pro tunc and denied petitioner's appeal.

  On May 7, 2002 the Supreme Court of Pennsylvania denied Mr. Greene's petition for allowance of appeal.

  The following issues were raised by petitioner before the state courts on appeal on collateral review in his Motion for Post Conviction Collateral Relief filed July 8, 1993:
(A) COUNSEL RENDERED INEFFECTIVE ASSISTANCE TO PETITIONER FOR THE FOLLOWING REASONS:
1. Counsel was ineffective for not objecting to the defective Guilty Plea Colloguy [sic] administered by the Court, which failed to advise the Petitioner whithin [sic] the explaining of the possible ranges of sentencing that the possibility of the sentences imposed would/could be imposed consecutive as opposed to concurrently upon the acceptance of the Guilty Plea. U.S.C.A. CONST. AMEND. #6, and Pa. R. C. P.; R. 319, 42 Pa. C.S.A.
  2. Counsel was ineffective for not objecting to the Court's defective Guilty Plea Colloguy [sic] where the court omitted advising the Petitioner in the Colloguy [sic], that he may withdraw his plea before a verdict is rendered, and/or after sentencing . . . in violation of Petitioners Due Process. Pa. R.C. P.; R. 319 Pa. 42 C.S.A.; Const. 6th, 14 Amendments. Page 5
 
3. Counsel was ineffective for inducing Petitioner's plea of Guilty for the removal of the Death Sentence, omitting the entire Guilty Plea format. Pa. R.C.P.; R. 319.
4. Counsel was ineffective for not advising Petitioner of the defective Jury Waiver Colloguy [sic] administered by the Court omitting the fact within the colloguy [sic] that Petitioner may at anytime withdraw his Waiver of jury prior to the commencement of trial, or before the verdict is rendered . . . violating Petitioner's Due Process and Constitutional Rights. Pa. R. C. P.; R. 1102(b) 42 Pa. C.S.A., Const. 6th, 5th, and 14th Amendments.
5. Counsel was ineffective for not filing a Motion to Withdraw the Guilty Plea before, and after sentencing. U.S.C.A. Const. Amend. 6th, Pa. R. C. P.; R. 319, 42 Pa. C.S.A.
(B) TRIAL COURT COMMITTED REVERSABLE CONSTITUTIONAL ERROR FOR THE FOLLOWING REASONS:
1. Trial Court errored [sic] in its Jury Waiver Colloguy [sic] by not advising petitioner that anytime he may withdraw his jury waiver prior to the verdict being rendered, or upon the discretion of the Court . . . in violation of petitioner's Due Process Right's [sic] to a fair trial. Pa. R.C.P.; R. 1102(b).
2. Trial Court erred in its Guilty Plea Colloguy [sic], where it omitted the fact that Petitioner could withdraw this plea after sentencing under Pa.R. 321, in violation of petitioner's Due Process Rights and Constitutional Rights.
  3. Court erred by not advising petitioner of the possible sentences that could be imposed consecutive as opposed to concurrently, at the time that Petitioner entered his Plea of Guilty, which rendered the Plea invalid and defective. Pa. R. C. P.; R. 319, Pa. C.S.A.; Page 6 6th Amend. Const.
 
4. Trial Court erred with the acceptance of its Guilty Plea where nothing within the Colloguy [sic] stated that Petitioner was advised of the rights he was waiving as stated in the Guilty Plea Colloguy [sic], or the written colloguy [sic]. U.S.C.A. CONSTITUTION AMENDMENT 6, 14.
5. Trial Court erred in its omittance [sic] after petitioner's Reconsideration/Modification Hearing of advising him of Appellate Rights to withdrawing his Guilty Plea within ten(10) days after sentencing; in violation of his Due Process and Constitutional Rights of his 6th, 14th, Amend., Pa. R. C. P. R. 321; Pa. R. A. P.; 1701.*fn3
(Emphasis in original.)

  Discussion

  In Mr. Greene's petition, he asserts ten grounds in support of his request for the court to grant a writ of habeas corpus. They are as follows:
1. trial counsel failed to pursue a direct appeal from the judgment of sentence as requested by Greene;
2. trial counsel failed to withdraw his guilty plea as requested by the petitioner;
  3. PCRA counsel was ineffective for failing to raise his assertion that trial counsel was ineffective for failing to withdraw his plea Page 7 and file a direct appeal;
 
4. trial counsel failed to advise him regarding the possible defense of voluntary intoxication and/or diminished capacity to the charge of murder in the first degree;
5. trial counsel failed to subpoena and interview other witnesses [Rusty Coles and Curtis Gratz] during the hearing for reconsideration of sentence;
6. trial counsel failed to compel the trial Judge to conduct a penetrating and comprehensive examination on the record assuring that Petitioner's guilty plea was knowing and intelligently entered;
7. trial counsel failed to petition the court for a copy of the colloquy to show that the Court failed to read Petitioner the required six questions pursuant to Pa.R.Grim. P. 319;
8. trial counsel failed to argue that Petitioner was actually innocent of first degree murder;
9. trial counsel failed to argue that petitioner was actually innocent of robbery;
10. trial counsel failed to argue that the cumulative errors of counsel ineffectiveness was the catalyst that induced Petitioner to plead guilty to charges he did not commit.*fn4
  Magistrate Judge Caracappa found that petitioner's Claims 6 through 10 are unexhausted in state court. Consequently, Magistrate Judge Caracappa concluded that 6 through 10 are procedurally defaulted and not subject to review. Magistrate Judge Caracappa further concluded that Claims I through 5 are exhausted and ripe for our consideration. Page 8

  Federal law requires the exhaustion of claims in state court before they can be considered in a federal habeas corpus action. In Evans v. Court of Common Pleas, 959 F.2d 1227, 1230 (3d Cir. 1992), the United States Court of Appeals for the Third Circuit concluded that it was "well-established" that "absent a valid excuse, a prisoner must first present all federal claims to the state court." The exhaustion requirement recognizes the dual sovereignty inherent in our federal system of government. Accordingly, the exhaustion requirement appropriately gives state courts the first opportunity to correct any errors which may have been committed by a state trial court. 959 F.2d at 1230.

  In order for a claim to be exhausted, petitioner "must demonstrate that he has presented the legal theory and supporting facts asserted in the federal habeas petition in such a manner that the claims raised in the state courts are `substantially equivalent' to those ...


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