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Ascenzi v. Erickson

June 1, 2007

MICHAEL J ASCENZI, PETITIONER,
v.
CHARLES ERICKSON, RESPONDENT.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

I. Introduction

On December 17, 2004, Petitioner, Michael J. Ascenzi, an inmate presently incarcerated at the Retreat State Correctional Institution, Hunlock Creek, Pennsylvania, filed pro se the above-captioned petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and supporting Memorandum of Law. (Dkt. Entries 1 and 2.) Petitioner paid the required filing fee. On January 28, 2005, the Court issued an order directing a response to the Petition. (Dkt. Entry 12.) After receiving a nunc pro tunc enlargement of time (Dkt. Entry 22), Respondent filed its response on May 10, 2005. (Dkt. Entry 29.) Petitioner filed a traverse. (Dkt. Entry 30.) On February 22, 2006, the Court directed Respondent to provide various state court documents related to Petitioner's direct and collateral challenges to the criminal judgment under review. (Dkt. Entry 34.) On March 28, 2006, Respondent filed a number of the requested documents. Additional state court records were filed by Respondent on May 10, 2007. The Petition is ripe for disposition and, for the reasons that follow, will be denied.*fn1

II. Factual and Procedural Background*fn2

In November 1995, following a jury trial in the Luzerne County Court of Common Pleas, Ascenzi was convicted of possession of a controlled substance (marijuana), possession with intent to deliver a controlled substance, and possession of drug paraphernalia. Ascenzi fled the jurisdiction after his conviction, but was later apprehended. On February 6, 1997, Ascenzi was sentenced to four and one half (4 1/2 ) to ten (10) years imprisonment, plus a consecutive one-year term of probation and a $30,000 fine.*fn3

Ascenzi was represented by Attorney Frank Nocito ("Nocito") through sentencing. (Dkt. Entry 1, Petition.) Nocito was privately retained.

Following sentencing, the state trial court appointed Attorney John Pike ("Pike") as Ascenzi's post-trial counsel. (Dkt. Entry 2, Memorandum in Support of Petition for Habeas Corpus, p. 7.) Post-trial motions were filed, reviewed by the Court, and denied on August 27, 1997. (Dkt. Entry 39-2, Luzerne County Court of Common Pleas Order dated August 26, 1999, p. 6.) Thereafter, Pike withdrew as Petitioner's counsel, and Attorney Gerald Wassil ("Wassil") was appointed as Ascenzi's direct appeal counsel . (Dkt. Entry 2, Memorandum in Support of Petition for Habeas Corpus, p. 7.)

Ascenzi, through Wassil, filed a timely notice of appeal with the Pennsylvania Superior Court. The sole issue raised was whether "the trial court erred in failing to suppress evidence because the police violated the knock and announce rule when executing a search warrant." (Dkt. Entry 39-2, Superior Court of Pennsylvania Judgment Order dated October 2, 1998, p. 2.) Upon appeal, the Superior Court issued a one page order, which in part, held:

The trial court found no violation, concluding that the officers executing the warrant, knocked, announced their purpose and authority, and waited a sufficient time before forcibly entering the premises. While Appellant raises points of inconsistency between the preliminary hearing testimony and suppression hearing testimony of Agent Melnick, this goes to issues of credibility. The Honorable Michael T. Conahan determined that there was no violation of Pa. R. C. P. 2007. We have reviewed the record and find the evidence supports the trial court's factual findings. (Id.; Commonwealth v. Ascenzi, 726 A.2d 1074 (Pa. Super. 1998) (unpublished opinion)) Petitioner, proceeding pro se, filed a petition for allowance of appeal to the Supreme Court of Pennsylvania, which was denied on April 28, 1999. (Dkt. Entry 39-2, Supreme Court of Pennsylvania Order dated April 28, 1999.)

On February 2, 2000, Ascenzi filed his first PCRA petition, alleging ineffectiveness of trial counsel (Nocito). He amended the petition on April 6, 2000, to include a claim of ineffectiveness of post-trial counsel (Pike). On July 19, 2000, he amended his petition a third time to include a claim of ineffective assistance of direct appeal counsel (Wassil), and requested the appointment of a lawyer. (Dkt. Entry 39-3, Superior Court of Pennsylvania Order dated March 26, 2002; Dkt. Entry 49-2, Ascenzi's Third Amended PCRA Petition.) The Court appointed Attorney Steve Menn ("Menn") to represent him. Menn did not file an amended PCRA petition, but served as Ascenzi's "standby counsel" at the PCRA evidentiary hearings held on November 8 and 15, 2000. (Id.)

During the second day of the PCRA proceedings, Ascenzi called three witnesses: Americo Ascenzi (his father); John Pike; and Gerald Wassil. (Dkt. Entry 49, Transcript of Second Day of PCRA Proceedings ("PCRA Transcript"), p. 55-62.) Americo Ascenzi testified that he was upstairs sleeping in his home on December 2, 1994, when the police executed the search warrant. (Id. at p. 4.) At some point, Ascenzi's father "was taken downstairs" where he joined Petitioner and Ms. Gainey, Petitioner's then girlfriend. (Id.) Americo Ascenzi remarked that several weeks after his son's arrest, Atty. Nocito came to his home to photograph the basement area, but did not take a written statement from him, or request him to testify at trial. (Id.)

Ascenzi's post-trial counsel, Attorney Pike, testified that his role was limited to physically reformatting the issues raised by Ascenzi in his pro se post-trial motion and submitting it to the Court. (Id. at pp. 10 - 11.) The issues raised included the following allegations of Nocito's ineffectiveness: (1) failure to communicate adequately with Petitioner;*fn4 (2) failure to challenge the racial make up of the jury; and (3) failure to call Ascenzi's father and girlfriend to testify to the events the night the police searched the Ascenzi residence.*fn5

Ascenzi also alleged that his sentence was illegal based on: (1) the weight of the marijuana seized was inaccurately portrayed as over 10 pounds, resulting in him being given a higher mandatory minimum sentencing range, and (2) the trial court's failure to determine Ascenzi's ability to pay the $30,000-fine prior to assessing it. As to these issues, Pike noted that the weight of the drugs was determined prior to his involvement in the case, and was determined to be in excess of 10 pounds. Pike did not believe Ascenzi received an illegal sentence as the term received was less than the maximum sentence allowable under the sentencing guidelines for a second time offender in possession of greater than 10 pounds of marijuana. Additionally, he stated the monetary fine imposed was consistent with the statutorily defined mandatory minimum for the offense. (Id. at pp. 24-27.)*fn6 According to Pike, at the hearing on the post-trial motion, Ascenzi's testimony primarily expressed concern with: (1) the confiscation of the money seized from the home;*fn7 and (2) the violation of the knock and announce rule related to the execution of the search warrant. (Id. at pp. 22 - 23.)

Wassil, who represented Ascenzi during his direct appeal to the Superior Court, testified that he spoke with both Nocito and Pike, and reviewed their performance and possible grounds for appeal by examining the record and transcripts in the case. (Id. at pp. 33-34 and pp. 39-40.) Wassil determined Ascenzi's claims of counsels' alleged ineffectiveness were of no merit. (Id. at p. 35.) He testified that he pursued the only potentially meritorious claim he found -- the alleged violation of the knock and announce rule. (Id. at p. 35.) After the Superior Court denied Petitioner's direct appeal, Wassil advised Ascenzi that he felt it would be frivolous to further appeal the matter to the Pennsylvania Supreme Court. (Id. at p. 38.)

At the conclusion of the hearing, Ascenzi summarized his various claims. He asserted that Nocito was ineffective for failing to: (1) evaluate the possible favorable testimony his father and girlfriend could have offered as they were present when the police searched his home; (2) seek the opportunity to call into court the confidential informant upon whom the police had relied in formulating the probable cause affidavit; (3) continue his representation of

Petitioner by filing a direct appeal; (4) challenge his absence from jury selection;*fn8 and (5) listen to Petitioner when he pointed out Commonwealth witnesses were changing their testimony. (Id at pp. 46-49.) Petitioner then explained Wassil was ineffective for failing to pursue on appeal any of the claims asserted in his post-trial motion without his permission. Ascenzi disagreed with Wassil that the claims were meritless. (Id. at p. 51.) He accused Attorney Pike of failing to raise the inappropriate admission of Ascenzi's prior theft charge on appeal. (Id. at p. 52.) Finally, Ascenzi reasserted that his sentence was illegal because: (1) the length of the sentence was based on the inaccurate weight of the marijuana seized; and (2) the fine was imposed without any consideration of his ability to pay it. He also stated he received an extra six months because he was declared a fugitive after trial when he failed to appear for his first sentencing hearing. (Id. at p. 54.) The PCRA Court denied Ascenzi's Petition at the conclusion of the second hearing. (Id. at pp. 61-62.)

Petitioner, proceeding pro se, filed a notice of appeal, concise statement of matters complained of on appeal, and a brief alleging ineffectiveness of trial counsel, post-conviction counsel and appellate counsel. (See Dkt. Entry 49-5, Petitioner's Concise Statement of Matters to be Complained of on Appeal; and Dkt. Entry 49-6, Ascenzi's Appellate Brief.) After finding that Petition was essentially "uncounseled" throughout the PCRA proceedings in that "the assistance provided by court-appointed counsel [Menn] was less than adequate," the Superior Court vacated the Order denying relief and remanded the matter for the appointment of new PCRA counsel. (Dkt. Entry 39-3, Superior Court Memorandum Opinion dated March 26, 2002.)

On September 9, 2002, a hearing for the appointment of new counsel was held by the PCRA court. (Dkt. Entry 39-3 at p. 7, Luzerne County Court of Common Pleas Order dated September 9, 2002.) Petitioner rejected the appointment of counsel and requested to proceed pro se. This request was granted, and Ascenzi was given leave to appeal nunc pro tunc from the November 15, 2000 Order denying relief under the PCRA. (Dkt. Entry 49-6, Petitioner's PCRA Appellate Brief, p. 12.)

Ascenzi raised ten issues within his Concise Statement of Matters Complained of on Appeal. The Superior Court found Ascenzi had waived his claim of Nocito's ineffectiveness with respect to the alleged failure to interview two eye witnesses to the search of Petitioner's residence. (Dkt. Entry 39-4, Superior Court Memorandum Opinion dated July 13, 2003, at 3). Notwithstanding this conclusion, the Superior Court determined that the claim lacked merit based on the PCRA court's consideration of testimony of one of the proposed witnesses and counsel. (Id. at 4.) The trial court had found to be credible Nocito's testimony that he had indeed interviewed the witnesses and exercised professional judgment in deciding not to call either witness at trial.

The Superior Court rejected other instances of alleged ineffectiveness of trial counsel,*fn9 stating:

[A]ny allegation of trial counsel's ineffectiveness is waived for failure to raise the arguments on direct appeal. With regard only to the allegations concerning the use of false information to obtain the search warrant, the weight of the marijuana seized, and the imposition of $30,000 fine, however, it appears appellant has attempted to layer these claims, albeit in awkward fashion, to include post-trial counsel and appellate counsel. We will address only these claims; all other claims of trial counsel's ineffectiveness are waived. (Id. at 5-6.) As to the three asserted instances of trial counsel ineffectiveness not waived, the Superior Court found that, contrary to Ascenzi's argument, the validity of the search warrant was argued and resolved, and Ascenzi had failed to explain how trial counsel was ineffective. (Id. at 6.) As to the weight of marijuana for sentencing purposes, the appellate court found that trial counsel had been effective in correcting the presentence investigation report statement that 10.9 pounds had been seized from Ascenzi's residence, when the correct amount was 10.7 pounds, and in arguing that amounts held for personal consumption should not be included for sentencing purposes. (Id. at 6-7.) Finally, the Superior Court concluded that trial counsel could not be faulted in connection with the imposition of a fine of $30,000 because it was mandated by statute. (Id. at 7.) As to appellate counsel, the Superior Court concluded that he had not been ineffective in failing to petition for allowance of appeal. (Id. at 8.)

Ascenzi then filed a petition for allowance of appeal to the Supreme Court of Pennsylvania. On February 25, 2004, the Commonwealth's high court denied the pro se petition. Ascenzi then filed for habeas relief in this Court, presenting the following eight (8) grounds for relief:

(1) Denial of effective assistance of trial counsel based on the following: failure to interview eye witnesses; failing to impeach state witnesses; failure to request mistrial after Petitioner's prior criminal record was admitted; not obtaining an order for probable cause issue; stealing money; forcing Petitioner to perjure himself; failure to obtain proper weight of seized marijuana for sentencing purposes; and failure to file appeals.

(2) Denial of effective post-trial counsel based on the following: failure to litigate a number of constitutional issues; failure to preserve ineffectiveness of trial counsel; illegal sentence; malicious prosecution; introduction of petitioner's prior criminal history; failure to properly present a violation of the knock and announce rule, ...


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