United States District Court, E.D. Pennsylvania
July 26, 2004.
FRANK D. GILLIS, et al.
The opinion of the court was delivered by: JOHN PADOVA, District Judge
Before the Court is Shawn Sutton's pro se Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons
that follow, the Court denies the Petition in its entirety.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 10, 1997, before the Honorable Paula Francisco Ott of
the Court of Common Pleas for Chester County, Petitioner pled
guilty to two counts of robbery, two counts of aggravated
assault, two counts of terroristic threats and eight other
related offenses. The conviction resulted from Petitioner's
robbery of an elderly couple who operated a local grocery store.
On May 23, 1997, the trial court sentenced Petitioner to an
aggregate term of 20 to 50 years imprisonment. On October 1,
1997, after conducting a hearing on Petitioner's motion for
reconsideration of sentence, the trial court reduced Petitioner's
sentence to 18 to 40 years imprisonment. Petitioner thereafter
filed an appeal with the Pennsylvania Superior Court challenging
the modified sentence. On March 5, 1998, upon consideration of a
joint motion filed by the Commonwealth of Pennsylvania
("Commonwealth") and Petitioner, the Pennsylvania Superior Court ("Superior Court") vacated
Petitioner's judgment of sentence and remanded the case for
resentencing because there was no stenographic record of the
reconsideration of sentence hearing. After conducting sentencing
hearings on June 8, 1998 and July 8, 1998, the trial court
resentenced Petitioner to an aggregate term of 18 to 36 years
imprisonment. Petitioner thereafter filed a post-sentence motion
to withdraw his guilty plea and a motion for reconsideration of
sentence, both of which were denied after evidentiary hearings on
August 27, 1998 and September 8, 1998. On appeal to the Superior
Court, Petitioner argued that the trial court committed several
errors in calculating his sentence and further erred in denying
his post-sentence motion to withdraw his guilty plea. The
Superior Court held that Judge Ott erred in calculating
Petitioner's sentence and remanded the case for resentencing.
Commonwealth v. Shawn Sutton, No. 3283 Phila. 1998, J.A17936/99
(July 12, 1999). However, the Superior Court rejected
Petitioner's remaining contentions. Id. On November 17, 1999,
Judge Ott resentenced Petitioner to an aggregate term of 15 to 30
years imprisonment. Petitioner appealed the judgment of sentence
and raised the following three issues:
[1.] Whether the trial court violated the fundamental
norms of sentencing when it sentenced appellant to an
aggregate term of imprisonment of fifteen (15) years
to thirty (30) years, a sentence unreasonable and
[2.] Whether the trial court abused its discretion in
sentencing appellant outside the applicable guidelines as determined by the Sentencing
[3.] Whether the trial court erred in failing to
address count one, robbery, at the time of
resentencing, likewise failing to demonstrate
consideration of the guidelines with respect to count
one of the record.
Commonwealth v. Sutton, No. 373 EDA 2000, slip op. at 3 (
Pa. Super. Ct. Sept. 11, 2000). The Superior Court affirmed the
judgment of sentence on September 11, 2000. Commonwealth v.
Sutton, 766 A.2d 892 (Pa. Super. 2000) (table). Petitioner
did not seek direct review in the Pennsylvania Supreme
On September 5, 2001, Petitioner timely filed a pro se
petition pursuant to the Pennsylvania Post-Conviction Relief Act
("PCRA"), 42 Pa. C.S.A. § 9541. The PCRA court appointed counsel
for Petitioner. After reviewing the record, counsel filed a "no
merit" letter pursuant to Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988), seeking permission to withdraw as counsel.
The PCRA court granted counsel permission to withdraw and
informed Petitioner of its intention to dismiss the petition
pursuant to Pennsylvania Rule of Criminal Procedure 907. On
February 26, 2002, the PCRA court dismissed Petitioner's petition
without a hearing. Petitioner appealed to the Superior Court and raised the
following three issues:
[1.] Whether trial counsel was ineffective for
failing to object to the constitutionally
impermissible plea colloquy which failed to inform
the defendant of his right to trial by jury & counsel
was ineffective for failing to withdraw the unknowing
and involuntary plea; all prior counsel was [sic]
ineffective for failing to raise & preserve this
claim for relief?
[2.] Whether trial counsel was ineffective for
failing to object to the constitutionally
impermissible plea colloquy which failed to inform
the defendant that he was presumed innocent until
found guilty & counsel was ineffective for failing to
withdraw the unknowing and involuntary plea; all
prior counsel was [sic] ineffective for failing to
raise & preserve this claim for relief?
[3.] Whether trial counsel was ineffective for
failing to challenge the defective plea colloquy
insofar as there was no factual basis established on
the record for the sentence imposed & counsel was
ineffective for failing to object to the subsequent
unknowing and unintelligent plea; all prior counsel
was [sic] ineffective for failing to raise & preserve
this claim for relief?
Commonwealth v. Sutton, No. 987 EDA 2002, slip. op. at 5-6 (
Pa. Super. Ct. July 18, 2003). On July 18, 2003, the Superior Court
affirmed the decision of the PCRA court in an unpublished
opinion. Commonwealth v. Sutton, 835 A.2d 837 (
Pa. Super. 2003). On December 23, 2003, the Pennsylvania Supreme Court
denied Petitioner's Petition for Allowance of Appeal.
On January 6, 2004, Petitioner filed a pro se Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He raises
thirteen grounds for relief, which are summarized as follows:
(A) The trial court erred in sentencing Petitioner to
an unreasonable and excessive term of imprisonment under
the applicable sentencing guidelines;
(B) The trial court erred in sentencing Petitioner
outside the applicable sentencing guidelines;
(C) The trial court erred in sentencing Petitioner,
without any explanation, outside the sentencing
guidelines applicable to count one (robbery);
(D) Trial counsel was ineffective for failing to
object to the trial court's guilty plea colloquy on
the ground that Petitioner was not advised of his
right to a jury trial and for failing to move to
withdraw Petitioner's involuntary guilty plea;
(E) Trial counsel was ineffective for failing to
object to the trial court's guilty plea colloquy on
the ground that Petitioner was not advised of the
presumption of innocence standard and for failing to
move to withdraw Petitioner's involuntary guilty
(F) Trial counsel was ineffective for failing to
challenge the trial court's guilty plea colloquy
insofar as there was no factual basis established on
the record for the sentence imposed, and for failing
to move to withdraw Petitioner's involuntary guilty
(G) Trial counsel was ineffective in advising
Petitioner that the issues raised by his suppression
motion would be preserved for appeal even though he
had entered a guilty plea;
(H) The trial court erred in failing to advise
Petitioner of his right to withdraw or otherwise
challenge the validity of his guilty plea within ten
days of entry of the plea;
(I) The trial court erred in advising Petitioner that
the court "would give a strong indication of
leniency" at his sentencing hearing based on his
decision to plead guilty;
(J) Trial counsel was ineffective in advising
Petitioner that he was required to answer in the
affirmative all of the questions asked by the trial
court during the guilty plea colloquy; (K) The trial court erred in sentencing Petitioner
based on the sentences imposed upon defendants in
(L) The trial court erred in accepting Petitioner's
guilty plea as knowing and voluntary given that the
court was aware that he intended to appeal the
court's ruling on his suppression issues; and
(M) The prosecutor committed misconduct by advising
Petitioner that he could file a post-sentence motion
pertaining to the suppression issues and for leading
Petitioner to believe that his suppression motion did
not pertain to any evidence that the prosecutor
intended to present at trial.
The Court referred this case to Magistrate Judge Thomas J. Reuter
for a Report and Recommendation pursuant to 28 U.S.C. § 636. On
March 4, 2004, the Magistrate Judge filed a Report and
Recommendation recommending that the Petition for Writ of Habeas
Corpus be denied in all respects, without an evidentiary hearing.
After receiving an extension of time, Petitioner timely filed
objections to the Report and Recommendation on May 10, 2004. In
his objections, Petitioner advised the Court that he had not yet
received Respondents' Answer to his Petition for Writ of Habeas
Corpus. The Court thereafter ordered the Clerk to send Petitioner
a copy of the Respondents' Answer and provided Petitioner with
additional time in which to file supplemental objections to the
Magistrate Judge's Report and Recommendation. As the deadline for
filing supplemental objections has now passed without any further
response from Petitioner, the Court will proceed to review his
objections as set forth in the May 10, 2004 filing. II. LEGAL STANDARD
Where a habeas petition has been referred to a magistrate judge
for a Report and Recommendation, the district court "shall make a
de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection
is made . . . [The Court] may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate." 28 U.S.C. § 636(b) (1994).
A. Claims Not Cognizable on Federal Habeas Review
Petitioner's claims A, B and C challenge the validity of the
sentence imposed upon him by the trial court under the
Pennsylvania Sentencing Guidelines. Petitioner never challenged
his sentence on federal constitutional grounds in the state
courts, and the Pennsylvania Supreme Court rejected claims A, B,
and C as a matter of state law. "[I]t is not the province of a
federal habeas court to reexamine state-court determinations on
state-law questions. In conducting habeas review, a federal court
is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States." Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991); see also Jones v.
Sup't of Rahway State Prison, 725 F.2d 40, 43 (3d Cir. 1984)
(holding that errors of state law in sentencing are not
cognizable in federal habeas proceedings). As Claims A, B, C are
not cognizable on federal habeas review, the Court must deny habeas relief with respect to these claims.
B. Procedural Default
In order to exhaust the available state court remedies on a
claim, a petitioner must fairly present all the claims that he
will make in his habeas corpus petition in front of the highest
available state court, including courts sitting in discretionary
appeal. O'Sullivan v. Boerckel, 526 U.S. 838, 847-48 (1999). To
"fairly present" a claim, a petitioner must present a federal
claim's factual and legal substance to the state courts in a
manner that puts them on notice that a federal claim is being
asserted. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.
1999). Thus, "[b]oth the legal theory and the facts underpinning
the federal claim must have been presented to the state courts,
and the same method of legal analysis must be available to the
state court as will be employed in the federal court." Evans v.
Court of Common Pleas, Delaware County, Pennsylvania,
959 F.2d 1227, 1231 (3d Cir. 1992). The burden of establishing that a
habeas claim was fairly presented in state court falls upon the
petitioner. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000).
"[I]f [a] petitioner failed to exhaust state remedies and the
court to which petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find the
claims procedurally barred . . . there is procedural default for
the purpose of federal habeas. . . ." Coleman v. Thompson,
501 U.S. 722, 735 n. 1 (1991). Procedural default bars federal review of those claims precluded
by state law. Coleman, 501 U.S. at 729.
In his Petition, Petitioner concedes that he has not previously
raised claims G, H, I, J, K, L, and M in the state
courts.*fn2 Petitioner further admits that he cannot return
to the state courts to file a successive PCRA petition on his
unexhausted claims because the one-year statute of limitations
for such petitions has expired.*fn3 See 42 Pa. Cons. Stat.
§ 9545(b)(1).*fn4 Moreover, Petitioner has not alleged, nor would the state court
likely find, that any of the three exceptions to the PCRA statute
of limitations apply in this instance. Id. Accordingly,
Petitioner has procedurally defaulted claims G, H, I, J, K, L,
Where a state prisoner has procedurally defaulted his federal
claims in state court, federal habeas review of the claims is barred "unless the prisoner can demonstrate cause for the default
and actual prejudice as a result of the violation of federal law,
or demonstrate that failure to consider the claims will result in
a fundamental miscarriage of justice." Coleman, 501 U.S. at
750. The Magistrate Judge concluded that Petitioner failed to
demonstrate cause and actual prejudice or a fundamental
miscarriage of justice because of actual innocence. Petitioner
objects to the Magistrate Judge's findings, arguing that he has
established both bases for excusing procedural default.
A demonstration of cause sufficient to survive dismissal "must
ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel's
efforts to comply with the state's procedural rule." Caswell v.
Ryan, 953 F.2d 853, 862 (3d Cir. 1992). Petitioner appears to
assert that the procedural default of his claims resulted from
PCRA counsel's failure to amend the PCRA petition, as Petitioner
requested, to include claims G, H, I, J, K, L, and M. Counsel's
ineffectiveness in failing to properly preserve a claim for
state-court review will suffice as cause, but only if that
ineffectiveness itself constitutes an independent constitutional
claim. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Ineffective assistance of PCRA counsel does not, however,
constitute an independent constitutional claim because Petitioner
had no Sixth Amendment right to counsel on his PCRA appeal.
Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002). Petitioner has failed, therefore, to
sufficiently demonstrate cause for the procedural default of
claims G, H, I, J, K, L, and M.*fn5
To excuse procedural default on the basis of a fundamental
miscarriage of justice, a habeas petitioner must show that "a
constitutional violation has probably resulted in the conviction
of one who is actually innocent." Murray v. Carrier,
477 U.S. 478, 496 (1986). To establish the requisite probability, the
petitioner must show that, in light of new evidence, it is more
likely than not that no reasonable juror would have convicted
him. Schlup v. Delo, 513 U.S. 298, 329 (1995). Petitioner must
"support his allegation of constitutional error with new reliable
evidence whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts or critical physical evidence
that was not presented at trial." Id. at 324. Petitioner does
not offer any new evidence, much less reliable new evidence, in
support of his actual innocence claim. The Court concludes,
therefore, that Petitioner has failed to demonstrate a
fundamental miscarriage of justice sufficient to overcome the
procedural default of claims G, H, I, J, K, L, and M.
Accordingly, the Court is precluded from considering the merits
of these claims. C. Petitioner's Remaining Claims
The Court has considered the merits of Petitioner's remaining
claims. The instant Petition was filed pursuant to
28 U.S.C. § 2254, which allows federal courts to grant habeas corpus relief
to prisoners "in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States."
28 U.S.C.A. § 2254(a). Since it was filed after April 24, 1996, the
Petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), P.L. 104-132, 110 Stat. 1214.
See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Section
2254(d)(1), as amended by AEDPA, provides:
An 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 with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C.A. § 2254(d)(1).
Under the AEDPA, a state court's legal determinations may only
be tested against "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. §
2254(d)(1). This phrase refers to the "holdings, as opposed to
the dicta" of the United States Supreme Court's decisions as of
the time of the relevant state court decision. Williams v.
Taylor, 529 U.S. 362, 412 (2000). Courts look to principles
outlined in Teague v. Lane, 489 U.S. 288 (1989), to determine
whether a rule of law is clearly established for habeas purposes.
Williams, 529 U.S. at 379-80, 412. "[W]hatever would qualify as
an old rule under [the Court's] Teague jurisprudence will
constitute clearly established Federal law," except that the
source of that clearly established law is restricted to the
United States Supreme Court. Id. at 412.
To apply the AEDPA standards to pure questions of law or mixed
questions of law and fact, federal habeas courts initially must
determine whether the state court decision regarding each claim
was contrary to clearly established Supreme Court precedent.
Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000). A state
court decision may be contrary to clearly established federal law
as determined by the United States Supreme Court in two ways.
Williams, 529 U.S. at 405. First, a state court decision is
contrary to Supreme Court precedent where the court applies a
rule that contradicts the governing law set forth in United
States Supreme Court cases. Id. Alternatively, a state court
decision is contrary to Supreme Court precedent where the state
court confronts a case with facts that are materially
indistinguishable from a relevant United States Supreme Court precedent and arrives at an opposite result. Id.
at 406. If relevant United States Supreme Court precedent
requires an outcome contrary to that reached by the state court,
then the court may grant habeas relief at this juncture. Matteo
v. Superintendent S.C.I. Albion, 171 F.3d 877, 890 (3d Cir.
If the state court decision is not contrary to precedent, the
court must evaluate whether the state court decision was based on
an unreasonable application of Supreme Court precedent. Id. A
state court decision can involve an "unreasonable application" of
Supreme Court precedent if the state court identifies the correct
governing legal rule but unreasonably applies it to the facts of
the particular state prisoner's case. Williams, 529 U.S. at
407. A state court determination also may be set aside under this
standard if the court unreasonably refuses to extend the
governing legal principle to a context in which the principle
should control or unreasonably extends the principle to a new
context where it should not apply. Ramdass v. Angelone,
530 U.S. 156, 166 (2000); Williams, 529 U.S. at 407.
To grant a habeas corpus writ under the unreasonable
application prong, the federal court must determine that the
state court's application of clearly established federal law was
objectively unreasonable. Williams, 529 U.S. at 409; Werts,
228 F.3d at 197. A federal court cannot grant habeas corpus
simply by concluding in its independent judgment that the state
court applied clearly established federal law erroneously or incorrectly; mere
disagreement with a state court's conclusions is insufficient to
justify relief. Williams, 529 U.S. at 411; Matteo, 171 F.3d
at 891. In determining whether the state court's application of
the Supreme Court precedent is objectively unreasonable, habeas
courts may consider the decisions of inferior federal courts.
Matteo, 171 F.3d at 890.
Section 2254 further mandates heightened deference to state
court factual determinations by imposing a presumption of
correctness. 28 U.S.C.A. § 2254(e)(1). The presumption of
correctness is rebuttable only through clear and convincing
evidence. Id. Clear and convincing evidence is evidence that is
"so clear, direct, weighty and convincing as to enable the jury
to come to a clear conviction, without hesitancy, of the truth of
the precise facts in issue." United States Fire Ins. Co. v.
Royal Ins. Co., 759 F.2d 306, 309 (3d Cir. 1985).
The district court may only grant relief on a habeas claim
involving state court factual findings where the state court's
decision "was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding." 28 U.S.C.A. § 2254(d)(2); see Weaver v.
Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001); Watson v.
Artuz, No. 99Civ. 1364(SAS), 1999 WL 1075973, at *3 (S.D.N.Y.
Nov. 30, 1999) (listing cases). The district court must conclude
that the state court's determination of the facts was objectively unreasonable in light of the
evidence available to the state court. Weaver, 241 F.3d at 1030
(citing Williams, 529 U.S. at 409); Torres v. Prunty,
223 F.3d 1103, 1107-08 (9th Cir. 2000); see also Watson, 1999 WL
1075973, at *3. Mere disagreement with the state court's
determination, or even erroneous factfinding, is insufficient to
grant relief if the court acted reasonably. Weaver, 241 F.3d at
Although alleged separately, claims D, E, and F in the Petition
set forth the single issue of whether trial counsel was
ineffective for failing to challenge the voluntariness of
Petitoner's guilty plea. In Strickland v. Washington,
466 U.S. 668 (1984), the United States Supreme Court held that criminal
defendants have a Sixth Amendment right to "reasonably effective"
legal assistance, id. at 687, and set forth a two-prong test
for determining ineffective assistance of counsel. A defendant
first must show that counsel's performance was so deficient that
it fell below an objective standard of reasonableness under
prevailing professional norms. Strickland, 466 U.S. at 688.
"This requires showing that counsel made errors so serious that
counsel was not functioning as the `counsel' guaranteed by the
Sixth Amendment." Id. at 687. "In evaluating counsel's
performance, [the Court is] `highly deferential' and `indulge[s]
a strong presumption' that, under the circumstances, counsel's
challenged actions `might be considered sound . . . strategy,'"
Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (quoting Strickland, 466 U.S. at 689).
"Because counsel is afforded a wide range within which to make
decisions without fear of judicial second-guessing,  it is
`only the rare claim of ineffectiveness of counsel that should
succeed under the properly deferential standard to be applied in
scrutinizing counsel's performance.'" Id. (citing United
States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).
If a defendant shows that counsel's performance was deficient,
he then must show that the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687. "This requires showing
that counsel's errors were so serious as to deprive the defendant
of a fair trial, a trial whose results is reliable." Id.
Defendant must show that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome."
Id. at 694.
In rejecting claims D, E, and F on collateral review, the
Pennsylvania Superior Court noted that Petitioner had signed a
written guilty plea colloquy that "fully informed [him] of all of
the rights he was surrendering, including his right to a jury or
bench trial, and the presumption of innocence." Commonwealth v.
Sutton, No. 987 EDA 2002, slip op. at 9 (Pa. Super. Ct. July 18,
2003). The court also found that the prosecutor had provided a
sufficient factual basis for the plea, based on the following excerpt from the guilty plea hearing:
THE COURT: . . . Let's hear the facts of the case,
MR. PINE: On August 20, , at approximately
12:40 PM, at 141 High Street, Phoenixville,
defendant, age 22, entered Rogalas' Grocery Store and
repeatedly assaulted Annie Rogala, age 69, with his
fists and feet and demanded money. Defendant took
money and food stamps from the cash register. While
Annie Rogala tried to get up, defendant punched and
kicked her again.
When Joe Rogala came into the store, age 73, the
defendant repeatedly assaulted him by punching him.
Annie Rogala retreated into the house, and he ordered
her to get more money to give to the defendant in
order for the defendant to stop the assault on Joe
Both victims had serious bodily injury and required
extensive follow-up treatment.
When the defendant finally left, he threatened to
shoot them and burn them out if they called the
Id. at 9-10(quoting 4/10/97 N.T. at 3).
This ruling by the Pennsylvania Superior Court is neither
contrary to, nor an unreasonable application of, federal law. In
Boykin v. Alabama, 395 U.S. 238 (1969), the United States
Supreme Court held that the Due Process Clause of the Fourteenth
Amendment requires that a guilty plea be entered intelligently
and voluntarily. Id. at 242-43. Before pleading guilty, a
criminal defendant should be advised of "all of his
constitutional rights and protections, including the privilege
against compulsory selfincrimination, guaranteed by the Fifth
Amendment, the right to trial by jury, and the right to confront
one's accusers." Hill v. Beyer, 62 F.3d 474, 480 (3d Cir. 1995) (citing Boykin, 295
U.S. at 243). "The failure to specifically articulate Boykin
rights, however, is not dispositive if the circumstances
otherwise establish that the plea was constitutionally
acceptable." Id. at 481.
In this case, Petitioner executed an extensive written guilty
plea colloquy that fully advised him of his constitutional
rights, including the privilege against compulsory
self-incrimination, the right to trial by jury, and the right to
confront his accusers. Furthermore, Petitioner acknowledged in
open court that he had reviewed the guilty plea colloquy form
with his attorney, that his attorney had answered all of his
questions concerning the form, and that he had personally signed
or initialed the form on each page. (4/10/97 N.T. at 8-9); see
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (noting that a
defendant's "declarations in open court carry a strong
presumption of verity"). Moreover, although due process does not
require an on-the-record development of the factual basis
supporting a guilty plea, Meyers v. Gillis, 93 F.3d 1147, 1148
(3d Cir. 1996), the record fairly supports the Pennsylvania
Superior Court's finding that the factual basis was established
before entry of Petitioner's guilty plea. As the circumstances of
Petitioner's guilty plea establish that his plea was
constitutionally acceptable, any objections raised by trial
counsel would have been meritless. It is well-settled that "there
can be no Sixth Amendment deprivation of effective counsel based on an attorney's
failure to raise a meritless argument." United States v.
Sanders, 165 F.3d 248, 253 (3d Cir. 1999). Accordingly, the
Court declines to grant habeas relief with respect to claims D,
E, and F.
Following a de novo review of the Petition and the Magistrate
Judge's Report and Recommendation, the Court overrules all of
Petitioner's objections, adopts the Magistrate Judge's Report and
Recommendation, and denies the Petition. An appropriate Order
AND NOW, this day of July, 2004, upon careful and independent
consideration of the Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (Doc. No. 1) and all attendant and responsive
briefing, and after review of the Report and Recommendation of
the United States Magistrate Judge Thomas J. Reuter, and in
consideration of Petitioner's Objections to the Magistrate
Judge's Report and Recommendation, and the Record before the
Court, IT IS HEREBY ORDERED that:
1. Petitioner's Objections to the Report and
Recommendation are OVERRULED;
2. The Report and Recommendation is APPROVED and
3. The Petition for Writ of Habeas Corpus filed
pursuant to 28 U.S.C. § 2254 is DENIED;
4. As Petitioner has failed to make a substantial
showing of the denial of a constitutional right,
there is no basis for the issuance of a certificate
of appealability pursuant to 28 U.S.C. § 2253(c)(2);
and 5. The Clerk shall CLOSE this case statistically.