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Coombs v. Kelchner

May 29, 2007

DERRICK COOMBS, PETITIONER
v.
DONALD KELCHNER, WARDEN SCI CAMP HILL, RESPONDENT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is the pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 filed by Derrick Coombs ("Coombs"). Since the filing of the petition, Coombs has also filed a number of motions. (Docs. 66, 69, 71, 74, 75). For the reasons set forth below, the petition will be denied and the motions will be denied as moot.

I. Background*fn1

Following a jury trial, Coombs was convicted in the Court of Common Pleas of Centre County of rape, two counts of simple assault, and one count each of indecent assault, false imprisonment and terroristic threats, in violation of 18 PA. CONS. STAT. §§ 3121(2), 2701(a)(1) and (3), 3126(a)(1), 2903 and 2706, respectively. (Doc. 59, p. 24). On March 6, 1995, he was sentenced to seven to twenty years imprisonment for rape, with concurrent sentences on the other charges. (Doc. 59, pp. 16-20).

He filed a timely appeal to the Pennsylvania Superior Court. (Doc. 59, p. 9). The judgment was affirmed on April 16, 1997. (Doc. 59, p. 22). Although he initially filed a petition for allowance of appeal (Doc. 68-4, p. 4), "[t]he record shows no indication that [Coombs] properly sought allowance of appeal before the Supreme Court." (Doc. 59, p. 47). After he filed his petition for allowance of appeal on May 17, 1997, Coombs notified the supreme court that he was "removing" the matter to federal court and the supreme court marked the disposition of the matter as "REMOVED to Fed. Ct." on July 15, 1997. (Doc. 68-4, p. 4).

At the time, Coombs had a petition for writ of habeas corpus pending in the United States District Court for the Western District of Pennsylvania. Coombs v. Sobina, 3:96-CV-0333. Ostensibly, he attempted to "remove" or merge his direct appeal into this pending federal action. Shortly thereafter, Coombs filed a document in the state supreme court and he was notified that "[u]ntil federal court orders otherwise, I believe, your matter here is not active and further filings here are unnecessary." (Doc. 68-4, p. 5). Coombs' petition for removal was denied by the district court in December 2007, and the federal habeas petition was dismissed on January 29, 1998. (Doc. 68-4, p. 17). Coombs appealed the dismissal. According to the United State Court of Appeals for the Third Circuit, "[t]he District Court's order [dismissing his petition] did not remand Coombs's case back to state court. After the petition was dismissed, the onus was on Coombs to initiate and pursue his state remedies. In addition, Coombs has not successfully removed any state court actions to federal court; his attempt to remove his direct appeal from the Pennsylvania Supreme Court was denied by the District Court by order entered December 22, 1997."*fn2 (Id.). The Court of Appeals further concluded that his contention that exhaustion should be excused because his direct appeal was still pending had already been rejected by the district court when Coombs requested a certificate of appealability. (Id.).

It appears that Coombs attempted to invoke the original jurisdiction of the supreme court by filing a "Rule 123 Application for Relief Petition for Writ of Habeas Corpus under the Honorable Court's Original Jurisdiction as Alternative to Processing Allocatur Petition." (Doc. 68-4, p. 12). The supreme court declined to hear the matter. (Id.).

On May 22, 1998, Coombs filed a petition pursuant to the Post Conviction Relief Act, 42 PA. CONS. STAT. § 9541, et seq., in the Court of Common Pleas. (Doc. 58, p. 32; Doc. 60, p. 45). On June 23, 1998, the petition was denied as premature pursuant to Commonwealth v. O'Neil, 393 Pa.Super. 111, 573 A.2d 1112 (1990). No appeal was taken. (Doc. 60, p. 45, Pennsylvania Superior Court opinion dated 2/4/02).

On June 30, 1998, Coombs filed a second petition. (Doc. 60, pp. 30-32). On June 10, 1999, the court denied the petition as follows:

[I]ssues which have been litigated on direct appeal from a conviction are barred from being relitigated in a post conviction proceeding. Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037 (1996); U.S. cert. denied 117 S.Ct. 2484, 138 L.Ed.2d 992. Instantly, Petitioner is attempting to raise issues which were previously raised in Petitioner's Post-Sentence Motions. In its Opinion and Order dated April 16, 1997, the Pennsylvania Superior Court, in affirming this Court's Judgment of Sentence, stated:

[Petitioner] claims the trial court erred in declining to recuse itself from disposition of post-sentence motions. A trial court's decision to grant or deny recusal will not be disturbed absent an abuse of discretion. Commonwealth v. Mercado, 437 Pa.Super. 228, 649 A.2d 946 (1994). [Petitioner] presents no evidence of bias or prejudice in the trial court's rulings or comments. We find no abuse of discretion in declining appellant's invitation.

Commonwealth v. Coombs. Memorandum and Judgment, 675 Hbg. 1995 (4/16/97).

Additionally, Petitioner previously filed other motions raising the same, if not identical, issues contained within Petitioner's instant PCRA petition. . . . Both motions were denied by Orders of this Court, filed on or about June 21, 1995. (Doc. 60, p. 31). There is no indication that an appeal was taken from this order.

Coombs filed a petition for writ of habeas corpus in state court in 2000. On January 23, 2001, the court denied the petition. "Upon appeal of that matter and several other matters, a panel of th[e] Court remanded the matter with instructions for the court to determine whether the instant petition should be treated as a PCRA petition. Commonwealth v. Coombs, 797 A.2d 1022 (Pa. Super. 2001) (unpublished memorandum) [(Doc. 60, p. 44-52, Pennsylvania Superior Court opinion dated 2/4/02.)]. On remand, the court determined that the petition constituted a PCRA petition. After holding a hearing, the PCRA court dismissed the petition as untimely." (Doc. 61, p. ...


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