The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Petitioner, Donald W. Marvin, an inmate at the Federal Correctional Institution in Otisville, New York, 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), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), an Order was issued advising the Petitioner that: (1) he could have the document ruled on as filed, or (2) withdraw his petition and file one, all-inclusive § 2254 petition. Petitioner responded by submitting a Notice of Election in which he opted to have his petition considered as filed. Respondents have filed an answer and a memorandum in opposition to the petition, together with exhibits, as well as a supplemental memorandum of law, and Petitioner filed a traverse. Also pending is Petitioner's motion for summary judgment. The petition and the motion are presently ripe for disposition. For the reasons that follow, the petition and the motion for summary judgment will be denied.
The following background has been extracted from the Pennsylvania Superior Court opinion addressing the Petitioner's appeal from sentence (Doc. 21 at 45, Opinion of the Pennsylvania Superior Court dated June 11, 2002).
On September 18, 1996, [Petitioner], who was driving without his vehicle's headlights on after dark and without a valid driver's license, led Pennsylvania State Police Officers on a high speed chase. Appellant was eventually apprehended and charged with various offenses [recklessly endangering another person, exceeding the maximum speed limit, and driving while operating privileges are suspended or revoked] in connection therewith. On May 6, 1997, [Petitioner] pled guilty to the offenses indicated supra, and, on October 26, 1998, was sentenced to [an aggregate term of not less than eleven months nor more than twenty-four months' imprisonment] . . . . Appellant did not file a timely direct appeal or post-sentence motion; but rather, on August 11, 1999, [Petitioner] filed a motion for leave to file a post-sentence motion nunc pro tunc, which was denied by the trial court on August 12, 1999. On September 9, 1999, Appellant filed a direct appeal with [the Pennsylvania Superior Court which] reversed and remanded for the appointment of counsel and granted [Petitioner's] request to file a post-sentence motion nunc pro tunc.
Following the appointment of counsel, [Petitioner] filed his post-sentence motion nunc pro tunc. Said motion was denied by the trial court on January 12, 2001. On January 26, 2001, [Petitioner] filed [an appeal to the Pennsylvania Superior Court], raising the following issues:
I. Did the court err when it (a) failed to inform [Petitioner], during the guilty plea colloquy, of the maximum sentence he could receive; (b) did not allow [Petitioner] his right of allocution; (c) relied on an incorrectly calculated prior record score thereby giving [Petitioner] an illegal sentence; and (d) failed to state on the record the reasons for sentencing [Petitioner] outside the guidelines?
II. Was [Petitioner] denied his right to effective representation of counsel guaranteed to him by the U.S. Constitution, 6th Amendment, when his counsel (a) told [Petitioner] to plead guilty when he was innocent; (b) failed to assure that [Petitioner] received an adequate plea colloquy that informed [Petitioner] of the maximum sentence; (c) withdrew [Petitioner's] motion to withdraw his guilty plea without his consent; (d) failed to assure that [Petitioner] was allowed his right of allocution; and (e) failed to object to [Petitioner's] incorrectly calculated prior record score? Following [Petitioner's] January 26, 2001 appeal, [the Superior Court] conducted a review and issued a memorandum decision on November 28, 2001. In that memorandum, [the Court] noted that [it] could not conduct a meaningful review of some of the issues raised by [Petitioner] due to the absence of certain transcripts and documents from the certified record. [The Superior Court] then remanded the case to the trial court for an evidentiary hearing, if necessary, to determine who was responsible for the absence of these items from the certified record.
On remand, the trial court determined that the absence of these items was attributable to the Clerk of Courts' personnel. In a January 28, 2002 order (docketed on January 30, 2002), the trial court directed the Clerk of Courts to included these items in the certified record to be transmitted to [the Superior Court. The Clerk of Courts complied]. (Doc. 21 at 45, Opinion of the Pennsylvania Superior Court dated June 11, 2002).
On review, the Superior Court denied relief to Petitioner and affirmed the judgment of sentence. The instant habeas petition ensued.