The opinion of the court was delivered by: Judge McClure
William P. Schmuck ("Petitioner" or "Schmuck"), an inmate presently confined at the Rockview State Correctional Institution, Bellefonte, Pennsylvania ("SCI-Rockview"), filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Named as Respondent is the Commonwealth of Pennsylvania. Service of the petition was previously ordered.
Schmuck admits that on April 9, 2001, he robbed two (2) stores in Harrisburg, Pennsylvania which were located within a one (1) block radius. He committed those robberies within a twelve (12) minute span while armed with a knife.
The Petitioner was arrested the next day. Following a jury trial in the Dauphin County Court of Common Pleas, he was convicted of two (2) counts of armed robbery and related offenses. According to the petition, Schmuck was sentenced to an aggregate thirty-three (33) to sixty-six (66) year term of imprisonment on December 13, 2001,.*fn1
See Record document no. 1, ¶ 3.
There is no indication that a direct appeal was timely filed following Schmuck's conviction. However, Petitioner did seek relief under Pennsylvania's Post Conviction Relief Act. ("PCRA").*fn2 See Record document no. 13, Exhibit 2. On July 22, 2003, Schmuck's counseled PCRA petition was granted and his right to direct appeal was reinstated. See id. Exhibit 3. In his subsequent reinstated direct appeal, Petitioner challenged the sufficiency of the evidence and the legality of the sentence imposed. On May 24, 2004, Pennsylvania's Superior Court denied relief. See id. Exhibit 12.
Schmuck next filed a PCRA action which was dismissed by the Court of Common Pleas on June 2, 2005. A subsequent appeal to the Superior Court was dismissed on February 14, 2006 after Petitioner failed to submit a supporting brief. See id. Exhibit 19.
Petitioner maintains that his present federal habeas petition is not contesting his guilt or the facts that support his conviction, the movant is only challenging the process and the legality of his sentence. Id. at ¶ 41. Specifically, he contends that the aggregate thirty-three (33) to sixty-six (66) year state sentence imposed was excessive because it is essentially a life sentence for a crime that netted one hundred and twenty-five dollars ($125.00) and did not result in injury to the victims. Schmuck adds that the sentence is unjust because: he is not a high risk for future crimes; his conduct was less serious than typical armed robbery and showed that he was unwilling to use violence; the crimes were compulsive and committed while in an alcohol and drug induced state; there was no malice; and the sentence prevents him from obtaining needed rehabilitation and treatment.*fn3 Furthermore, the sentencing court purportedly increased Schmuck's sentence because he refused to accept a plea bargain and committed an ex post facto violation when it misapplied 42 Pa. C.S.A. § 9714(a)(2) by using two (2) prior robbery convictions to enhance his sentence. His petition also claims ineffective assistance of counsel and that the effects of medication used to treat his mental health condition prevented him from assisting in his defense.
The Respondent argues that Schmuck is not entitled to federal habeas corpus relief because: (1) he failed to fully exhaust his available state court remedies, (2) his petition is untimely; (3) his bald assertions of ineffective assistance are insufficient; (4) the evidence was sufficient to support Petitioner's conviction; and (5) a reasonable sentence was imposed.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) amended the federal habeas statute by imposing a statute of limitations on prisoners requesting habeas corpus relief pursuant to 28 U.S.C. § 2254. Specifically, 28 U.S.C. § 2244(d)(1)-(2) provides, in relevant part, as follows:
(d)(1) A one-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of - (A) the date on which the judgment became final by the conclusion of direct review or the expiration for seeking such review . . .
(d)(2) The time during which a properly filed application for State post conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...