United States District Court, E.D. Pennsylvania
July 21, 2004.
KASEEM WILLIAMS, Petitioner,
WILLIAM J. WOLFE, ET AL., Respondents.
The opinion of the court was delivered by: CLIFFORD GREEN, Senior District Judge
Presently pending is the petition for writ of habeas corpus of
pro se petitioner, Kaseem Williams, the Report and Recommendation
of United States Magistrate Judge Diane M. Welsh, Petitioner's
Objections thereto, and Respondents Response to Petitioner's
Objections to the Report and Recommendation. After careful and
independent consideration and for the reasons set forth below,
Petitioner's Objections will be overruled and the Report and
Recommendation will be approved and adopted.
I. Factual and Procedural Background
Magistrate Judge Welsh filed a Report and Recommendation on May
19, 2004 recommending that the petition for habeas corpus relief
be denied. The Procedural History set forth in the Report and
Recommendation will be incorporated by reference and adopted
herein. Petitioner raised two ineffective assistance of counsel
claims in his petition. Petitioner claims that he received
ineffective assistance of counsel when his attorney induced the
petitioner to plead guilty by falsely telling the petitioner that
by pleading guilty to a negotiated plea case and an open plea
case in one proceeding he would get a lessor sentence than the
one he received. His second claim was that the direct appellate
counsel failed to preserve the first claim on direct appeal. Magistrate Judge Welsh concluded the first claim was not
procedurally defaulted and as such there was no need to consider
the second claim. Magistrate Judge Welsh also concluded that
Petitioner failed to satisfy his burden of rebutting the
presumption that Superior Court's fact findings are correct when
Petitioner relied on the same evidence reviewed by the Superior
Court. Petitioner objects to the Report and Recommendation and
asserts that Magistrate Judge Welsh incorrectly deferred to the
state court's factual findings because the adjudication resulted
in a decision that was based on an unreasonable determination of
facts in light of the evidence presented in the State Court
II. SCOPE OF REVIEW
A state court's factual findings "shall be presumed to be
correct," and petitioner "shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence," for
habeas corpus review. 28 U.S.C. § 2254(e)(1); Berryman v.
Morton, 100 F.3d 1089, 1102 (3d Cir. 1996). An application for a
writ of habeas corpus shall not be granted unless the petitioner
shows that the state court's decision was "contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States;" or "was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d)(1)-(2). In addition, "[a]n
application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State . . ."
28 U.S.C. § 2254 (b). When a claim is unexhausted and further direct or
collateral review in state court is barred, the claim is deemed procedurally
defaulted with respect to federal habeas review. See Coleman
v. Thompson, 501 U.S. 722, 735n. 1 (1991).
The Petitioner's objection does not respond to Judge Welsh's
recommendation, but merely reiterates arguments for his habeas
petition. The argument advanced by Petitioner was that trial
counsel expressed surprise at the sentence Petitioner received.
That statement by counsel does not establish that counsel advised
or assured Petitioner that he would receive a lessor sentence.
Since no additional clarification is revealed in his objection,
upon careful review of the record, this Court will adopt Judge
Welsh's determination that the Petitioner's first claim is
For the foregoing reasons, the petition for habeas corpus
relief must be summarily dismissed. Accordingly, the report and
recommendation of Magistrate Judge Welsh will be approved and
adopted. An Order approving and adopting the Report and denying
Petitioner's petition for a writ of habeas corpus follows. ORDER
AND NOW, this day of July, 2004, after careful and
independent consideration of the Report and Recommendation of
United States Magistrate Judge Diane M. Welsh and Petitioner's
Objections thereto, IT IS HEREBY ORDERED that:
1. Petitioner's Objections to the Report and Recommendation are
2. The Report and Recommendation is APPROVED and ADOPTED;
3. The Petition filed pursuant to 28 U.S.C. § 2254 is DENIED;
4. All pending motions relating to this matter are dismissed;
5. As there is no probable cause for appeal, a certificate of
appealability is DENIED.
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