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GILLAM v. WILSON

November 17, 2005.

DANIEL DEAN GILLAM, Petitioner,
v.
HARRY E. WILSON, Respondent.



The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge

MEMORANDUM AND ORDER

Background

Daniel Dean Gillam, an inmate presently confined at the State Correctional Institution, Cresson, Pennsylvania (SCI-Cresson), filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Named as Respondent is SCI-Cresson Superintendent Harry E. Wilson. Service of the petition was previously ordered.

  Petitioner states that he pled guilty to charges of third degree murder and aggravated assault in the Juniata County Court of Common Pleas.*fn1 He was sentenced to a twenty (20) to forty (40) year term of imprisonment on June 16, 1995. His conviction and sentence were affirmed following a direct appeal to the Pennsylvania Superior Court. See Commonwealth v. Gillam, 685 A.2d 208 (Pa. Super 1996) (Table).

  On January 15, 1997, Gillam initiated a pro se action pursuant to Pennsylvania's Post Conviction Relief Act (PCRA). See Commonwealth v. Gillam, 2003 WL 2371781 *3 (Pa.Super. Oct 23, 2003) (Brief for Appellant). After a lengthy delay associated with Petitioner's requests for appointment of counsel to proceed in forma pauperis, the trial court denied the PCRA petition on April 24, 2003. An appeal to the Superior Court was denied by Order dated September 3, 2004. See Commonwealth v. Gillam, 863 A.2d 1222 (Pa. Super 2004) (Table). A petition for allowance of appeal to the Pennsylvania Supreme Court was denied on January 26, 2005. See Commonwealth v. Gillam, 868 A.2d 1198 (Pa. 2005) (Table). On December 20, 2004, prior to the Pennsylvania Supreme Court's issuance of its PCRA decision, Gillam filed his present § 2254 action with this Court.

  Petitioner argues that he is entitled to federal habeas corpus relief on the grounds that his conviction was obtained via an involuntary and unlawfully induced guilty plea which was due to ineffective assistance of counsel.*fn2 His petition also contends that the trial court erred by accepting his guilty plea. The Respondent has submitted a motion (Doc. 15) seeking dismissal of the petition on the basis that Gillam's claims are procedurally defaulted.*fn3

  Discussion

  Respondent states that Petitioner's direct appeal challenged "only the discretionary aspects of his sentence" and was not reviewed by the Pennsylvania Supreme Court. Doc. 16, p. 2. The Respondent adds that Gillam's Superior Court appeal of his PCRA action asserted only that the trial court erred in accepting his guilty plea. According to the Respondent, the Superior Court did not address the merits of said claim rather it concluded that Gillam's argument was waived because he failed to raise the argument on direct appeal. Consequently, Respondent concludes that Petitioner's present action should be dismissed for failure to exhaust state remedies.

  Gillam argues that each of his present claims "factor's [sic] off from a Constitutional Violation of Petitioner's Rights, that of being innocence of the Criminal Offenses of either First or Third Degree Murder, and as to the Ineffectiveness of Counsel, which is Sixth Amendment Violations [sic]." Doc. 23, p. 5. Petitioner adds that he instructed his PCRA counsel to withdraw his petition for allowance of appeal to the Pennsylvania Supreme Court, so that he could initiate his pending § 2254 action. Id.

  28 U.S.C. § 2254(b)(1) provides that "[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." To exhaust one's claims, they may be presented to the state courts directly on appeal from the judgment of conviction and sentence or through a collateral proceeding, such as a PCRA petition. It is not necessary, however, to present federal claims to state courts both on direct appeal and in a PCRA proceeding. Evans, 959 F.2d at 1230-31; Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984).

  Under 28 U.S.C. § 2254(c), such a petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." In O'Sullivan v. Boerckel, 526 U.S. 838 (1999), the Supreme Court held that while exhaustion does not demand that state prisoners "invoke extraordinary remedies," "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Id. at 844-45.

  Respondent contends that none of Petitioner's present habeas claims were asserted in his direct appeal. According to the Respondent, Gillam's PCRA appeal included only his present claim that the trial court erred in accepting the guilty plea. However, the Respondent contradictorily admits that the Superior Court also addressed Petitioner's "bare assertion that his counsel ineffectively advised him to plead guilty." Doc. 16, p. 3.

  Gillam acknowledges that in his direct appeal "trial counsel challenged the discretionary aspects of the sentence." Doc. 23, p. 3. Petitioner further admits that his PCRA appeal raised the single claim that the trial court erred in accepting his guilty plea because Gillam's plea colloquy testimony maintained that the shooting was accidental. See id. Based on his own admissions, it is apparent that Petitioner's present claims that trial counsel improperly induced him into entering a guilty plea and provided ineffective assistance, are unexhausted.

  It is undisputed that none of Gillam's federal habeas claims were asserted in his direct appeal. Petitioner's PCRA action consisted of a claim that the trial court erred by accepting the guilty plea because Gillam's plea colloquy testimony asserted a defense that the shooting was accidental. The Superior Court in denying PCRA relief, noted that Petitioner did not file a motion to withdraw his guilty plea and did not raise his claim of trial court error on direct appeal. See Doc. 13, Exhibit E, p. 5. Consequently, the Superior Court concluded that the claim of trial court error had been waived and was subject to dismissal on that basis. See id. The Superior Court elaborated that Petitioner's guilty plea was valid. The Superior Court's decision also ...


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