United States District Court, M.D. Pennsylvania
November 1, 2005.
ROBERT A. KENNEDY, Petitioner
CHARLES ERICKSON, Warden, and PA STATE ATTORNEY GENERAL Respondents.
The opinion of the court was delivered by: JOHN JONES III, District Judge
MEMORANDUM AND ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On January 7, 2005, Petitioner Robert A. Kennedy ("Petitioner"
or "Kennedy") filed, pro se, a Petition for Writ of Habeas
Corpus ("the Petition") pursuant to 28 U.S.C. § 2254 in which he
seeks a reversal of his convictions, asserting that his guilty
plea to state charges of aggravated assault, burglary and
conspiracy to commit robbery was involuntary due to the
ineffective assistance of his counsel. (Rec. Doc. 2).
This case was referred to Magistrate Judge J. Andrew Smyser for
preliminary review. On September 28, 2005, Magistrate Judge
Smyser issued a Report and Recommendation (doc. 33) within which
he concluded that the Respondents, Charles Erickson, Warden and Pennsylvania State
Attorney General (collectively "Respondents") conceded to the
Petitioner's claim of ineffective assistance of counsel with
respect to the entering of his guilty plea. Magistrate Judge
Smyser construed the Respondents' statement as an admission that
the Petitioner's guilty plea was entered in a manner that
violated his federally protected rights. Therefore, Magistrate
Judge Smyser recommended that the Petition be conditionally
granted and that the case be remanded to the Court of Common
Pleas of Luzerne County, Pennsylvania so that a new trial may be
scheduled. Magistrate Judge Smyser further recommended that the
Petitioner be released unless the Commonwealth retries him within
ninety (90) days of the entry of this Order.
Objections to the Magistrate Judge's Report were due on October
13, 2005 and to date none have been filed. This matter is now
ripe for disposition.
FACTUAL BACKGROUND/PROCEDURAL HISTORY:
On June 23, 1998, a Juvenile Petition was filed in the Court of
Common Pleas of Luzerne County charging the Petitioner and four
other youths with robbery, criminal conspiracy to commit robbery,
burglary, criminal trespass, theft by unlawful taking, receiving
stolen property, criminal mischief, aggravated assault, simple
assault, harassment and stalking. (Rec. Doc. 27 at 3). A juvenile hearing was held on July 1, 1998, during which Petitioner was
represented by Attorney Nanda Palissery. At the hearing,
Petitioner was arraigned and pled not guilty. As a result of the
hearing, Petitioner was certified as an adult and case was
transferred to criminal court.
On October 12, 1998, Petitioner, age sixteen, and his parents,
met with Attorney Palissery to discuss the current status of any
plea negotiations. At this meeting Attorney Palissery informed
Petitioner and his parents of the plea agreement which he had
negotiated with the prosecutor. Attorney Palissery informed
Petitioner and his parents that pursuant to the negotiated plea
agreement, Petitioner was to plead guilty to criminal conspiracy
to commit robbery based on accomplice liability with a possible
sentence of 3½ years to 7 years of incarceration. However,
contrary to this representation, the actual plea agreement
involved Petitioner pleading guilty to aggravated assault,
burglary and conspiracy to commit robbery, with a possible
sentence of up to sixty years of incarceration. (Rec. Doc. 2).
Petitioner pled guilty on October 13, 1998. Sentencing was held
on November 19, 1998. Petitioner was sentenced to imprisonment of
54 months to 10 years on the charges of aggravated assault and
conspiracy and 30 months to 10 years on the burglary charge, and
the sentences were to run consecutively. Petitioner's post-sentence motion to withdraw his guilty plea was
denied on December 15, 1998 and his sentence was affirmed by the
Pennsylvania Superior Court. Petitioner was unsuccessful on
various subsequent appeals of his sentence in the Pennsylvania
state courts. (Rec. Doc. 2).
Petitioner then filed the instant Petition on January 7, 2005.
(Rec. Doc. 1). After requesting and receiving an extension of
time, the Respondents filed a response to the Petition on March
17, 2005. (Rec. Doc. 16). Petitioner filed a reply on March 30,
2005. (Rec. Doc. 19).
By Order (doc. 21) dated April 19, 2005, Magistrate Judge
Smyser appointed the Federal Public Defender to represent the
Petitioner in this case. On June 24, 2005, the Petitioner,
through the Federal Public Defender, filed a brief in support of
his Petition. (Rec. Doc. 27). On August 29, 2005, the Respondents
filed a response to the Petition. (Rec. Doc. 32).
STANDARD OF REVIEW:
When no objections are made to a magistrate's report, the
district court is not statutorily required to review a magistrate
judge's report before accepting it. See Thomas v. Arn,
474 U.S. 140, 149-50 (1985). According to the Third Circuit, however,
"the better practice is to afford some level of review to
dispositive legal issues raised by the report." Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987). When a district court accepts a magistrate judge's report,
the report becomes the judgment of the court. Id.
Our review of this case confirms Magistrate Judge Smyser's
determinations and well-reasoned analysis, and while we have not
been presented with any reason to revisit them, we do reiterate
the salient aspects of the Magistrate Judge's report.
First, Respondents, in their response dated August 29, 2005
(doc. 32), waived any procedural default by Petitioner and
requested that Magistrate Judge Smyser consider the merits of the
Second, Respondents, in their response dated August 29, 2005
(doc. 32), ask this Court to find that the Petitioner received
ineffective assistance of counsel at the time of his guilty plea.
Respondents further request that the case be remanded to the
Court of Common Pleas of Luzerne County for a new trial.
Under the rather unusual circumstances before us, where the
Respondents concede the legal point at issue, review of this case
obviously confirms Magistrate Judge Smyser's determinations.
Because we find no error in Magistrate Judge Smsyer's Report and
Recommendation and because no objections have been filed, we will
adopt it as our own for the reasons cited herein.
NOW, THEREFORE, IT IS ORDERED THAT: 1. Magistrate Judge Smyser's Report and
Recommendation (doc. 33) is GRANTED in its entirety.
2. The Petition for Write of Habeas Corpus (doc. 1)
3. The underlying criminal matter is remanded to the
Court of Common Pleas of Luzerne County, and we
direct that the Commonwealth of Pennsylvania shall
RETRY the Petitioner within ninety (90) days of the
entering of this Order.
4. Petitioner shall be RELEASED from custody if the
Commonwealth of Pennsylvania does not retry
Petitioner within ninety (90) days of the entering of
5. The Clerk is directed to close this file.
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