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Velazquez v. Grace

January 11, 2006


The opinion of the court was delivered by: Judge Jones

Magistrate Judge Mannion



Petitioner, Luis M. Felix Velazquez ("Velazquez" or "Petitioner"), a state prisoner incarcerated at the State Correctional Institution at Huntingdon, in Huntingdon, Pennsylvania, initiated this pro se action by filing a Petition for Writ of Habeas Corpus ("the Petition") pursuant to 28 U.S.C. § 2254 on October 26, 2004. ( Rec. Doc. 1). Petitioner, who was sentenced to a term of incarceration 13.5 to 27 years for aggravated indecent assault, indecent exposure, corruption of minors, and endangering the welfare of children, is challenging his conviction and sentencing following a jury trial in the Lebanon County Court of Common Pleas.

The instant Report and Recommendation (doc. 21) was issued by Magistrate Judge Mannion on November 16, 2005. The Report and Recommendation (doc. 21) recommends that the Petition be denied because Petitioner was not denied effective assistance of counsel. Objections to the Magistrage Judge's Report and Recommendation were due on December 25, 2005. Petitioner filed objections to on December 22, 2005. (Rec. Doc. 24). Therefore, this matter is ripe for our review and disposition.


When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. §636(b)(1); Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).


As noted, on October 9, 2002, Petitioner was convicted on charges of Aggravated Indecent Assault, Indecent Exposure, Corruption of Minors and Endangering the Welfare of Children following a jury trial in the Lebanon County Court of Common Pleas. The conviction resulted from charges brought against the Petitioner alleging that he had sexually molested his live-in girlfriend's eleven-year old niece during the night of a stay-over which preceded a family party the following day. The child victim testified at length at the trial as to what happened to her on the night in questions. She stated that the Petitioner came into her room, on three occasions during the night, sexually fondled her and exposed himself to her.

In his Petition, Velazquez maintains that on the date he was convicted, he was appointed new counsel, John R. Kelsey, III, Esq. ("Substitute Counsel Kelsey") who then represented him both when he was sentenced on January 22, 2003, and during the relevant period thereafter when any appeal was due. Petitioner contends that Substitute Counsel Kelsey failed to file either a direct appeal or a petition under the Post Conviction Relief Act ("PCRA") 42 Pa.C.S. §§ 9541-9546 on his behalf after his sentencing.

The Petitioner also claimed that trial counsel was ineffective for failing to call his parole officer as a character witness and for failing to pursue a line of questioning with certain witnesses the Petitioner believed would have established his innocence. In particular, Petitioner believed his parole officer should have been called to testify as a character witness to establish that the Petition had been in compliance with parole conditions for many years following his prior conviction. Petitioner also believed that trial counsel had erred by failing to ask questions of his live-in girlfriend, Bonnie Kafafy, regarding the chronology of events which occurred on the night the crime took place. Finally, Petitioner believed trial counsel was ineffective or failing to question the victim's mother in order to establish that the victim was at home on the night of the assault.

On April 22, 2004 Substitute Counsel Kelsey wrote a letter to Petitioner outlining the reasons why Petitioner would not be entitled to a new trial based on Petitioner's allegations of the ineffectiveness of his trial counsel. We note that the Petitioner was sentenced on January 22, 2003, therefore this aforementioned letter from Substitute Counsel Kelsey to Petitioner was written beyond the applicable limitations periods for either an appeal or PCRA petition.

This case was referred to Magistrate Judge Malachy Mannion for preliminary review. On December 15, 2004, Magistrate Judge Mannion issued a Report and Recommendation within which he recommended that the Petition be dismissed for failure to exhaust state remedies and a failure to file within the one- year statutory time limit provided for in Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Rec. Doc. 3). On February 10, 2005, we issued an Order (doc. 7) declining to adopt Magistrate Judge Mannion's Report and Recommendation and remanding the case with instructions that the Petition should be served upon the Respondents, and that the record be further developed in order to determine whether the statute of limitations should be tolled under the equitable tolling provisions of the AEDPA.

A hearing was held on October 13, 2005. Both the Petitioner and Substitute Counsel Kelsey testified, and documentary evidence was received into the record, including the trial transcript. Substitute Counsel Kelsey stated that although he was remiss in corresponding with the Petitioner, he did meet with Petitioner on several occasions in the prison, during which time they discussed Petitioner's desire to file a direct appeal and a PCRA petition. Substitute Counsel Kelsey explained to Petitioner that he had met with the witnesses that the Petitioner felt could have been questioned more fully at trial to establish his innocence, but that Substitute Counsel Kelsey found that neither witness offered any new information that could be of any benefit to the Petitioner. Further, Substitute Counsel Kelsey told Petitioner that he did not believe there was any basis for either an appeal or a ...

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