Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Asbury v. Lavan

March 17, 2006

WILLIAM ASBURY, PETITIONER
v.
THOMAS LAVAN, ET AL., RESPONDENTS



The opinion of the court was delivered by: Yvette Kane United States District Judge

MEMORANDUM and ORDER

I. Introduction

Petitioner, William Asbury, an inmate at the State Correctional Institution in Dallas, Pennsylvania, commenced this pro se action with a petition for writ of habeas corpus filed pursuant to the provisions of 28 U.S.C. § 2254. (Doc. 1.) In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), andMason v. Meyers, 208 F.3d 414 (3d Cir. 2000), an Order was issued advising Petitioner that he could: (1) have the document ruled on as filed, or (2) withdraw his petition and file one, all-inclusive § 2254 petition. (Doc. 3.) Petitioner responded by submitting a Notice of Election in which he opted to have his petition considered as filed. A show cause order was issued, the Government filed a timely response and a memorandum in opposition to the petition, and Petitioner did not file a traverse. The petition is now ripe for disposition. For the reasons that follow, the petition will be denied.

II. Background

The following background has been extracted from the Pennsylvania Superior Court opinion addressing Petitioner's collateral appeal pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq., (Doc. 11, Part 1, at 15, Opinion of the Pennsylvania Superior Court dated September 18, 2002.)

On the afternoon of March 20, 1995, [Petitioner] went to Canton Area Elementary School to pick up his children from school. When he arrived, school officials informed him that his wife had obtained a Protection from Abuse (PFA) Order preventing him from taking the children. [Petitioner] drove to the Canton Borough Police [Station] in order to ask for assistance in getting his children. Police officers told him that they could not help him.

As [Petitioner] left the police station, he noticed his wife driving in front of him and followed her to the elementary school where she was headed to pick up the children. She confronted him once they pulled into the school parking lot. After she got back in her car, [Petitioner] punched out the driver side window and attacked her with a pocket knife. He then entered the car through the passenger side door and repeatedly slashed her throat. A bystander intervened to stop the attack.

Police later arrested [Petitioner] and charged him with, inter alia, attempted homicide, aggravated assault, and possession of a weapon on school property. The district attorney's office offered him a plea bargain, whereby he would plead guilty to aggravated assault in exchange for a minimum sentence of ten years' imprisonment and having all other charges dropped. Appellant decided to reject the plea after discussing it with trial counsel. Although he admitted stabbing his wife, he hoped to avoid a sentence under the sentencing guideline for aggravated assault in which serious bodily harm resulted.

The judge convicted appellant after a non-jury trial in which he stipulated to the facts offered by the Commonwealth. At the sentencing hearing, the victim's treating surgeon testified that she suffered three serious wounds to her neck, which caused nerve damage and scarring. As a result, the judge concluded that [Petitioner] caused the victim serious bodily injury. On May 13, 1996, the judge imposed the maximum sentence of ten (10) to twenty (20) years' imprisonment for aggravated assault and a term of two and one-half (2 1/2 ) to five (5) years for possession of a weapon on school property.

[Petitioner] filed a direct appeal, and [the Pennsylvania Superior Court] affirmed the judgment of sentence on November 27, 1997. [Allocatur was subsequently denied.] (Doc. 11, Part 1, at 15-17, Opinion of the Pennsylvania Superior Court dated September 18, 2002.)

On October 2, 1998, Petitioner filed a pro se PCRA petition. The court appointed PCRA counsel, and counsel filed an amended PCRA petition on November 20, 1998. After a hearing, the trial court denied the amended petition. On September 18, 2001, the Pennsylvania Superior Court affirmed the trial court's order, and the Pennsylvania Supreme Court denied allocatur on September 17, 2003. The instant petition ensued, raising the following grounds for relief:

1. Plea counsel was ineffective for advising Petitioner to reject a plea offer;

2. Plea counsel was ineffective for failing to raise an insanity defense;

3. Petitioner's waiver of a jury trial was not knowingly and voluntarily made;

4. Sentencing counsel was ineffective for failing to raise plea counsel's prior ineffectiveness;

5. Appellate counsel was ineffective for failing to raise trial counsel's prior ineffectiveness;

6. Trial Court imposed an excessive sentence. (Doc. 1 at 9-11.)

Respondent states that issues three through six are unexhausted and/or procedurally defaulted, and that issues one and two are without merit.

III. Discussion

A. Exhaustion of State Court Remedies and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.