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WILLIAMS v. WOLFE

United States District Court, E.D. Pennsylvania


July 21, 2004.

KASEEM WILLIAMS, Petitioner,
v.
WILLIAM J. WOLFE, ET AL., Respondents.

The opinion of the court was delivered by: CLIFFORD GREEN, Senior District Judge

MEMORANDUM

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 proceeding.

  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 without merit.

  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 overruled;

  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; and,

  5. As there is no probable cause for appeal, a certificate of appealability is DENIED.

20040721

© 1992-2004 VersusLaw Inc.



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