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Colon v. Folino

January 11, 2008

JASON COLON, PETITIONER
v.
LOUIS FOLINO, RESPONDENT



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

(Complaint Filed 12/06/05)

(Judge Muir)

Memorandum

Petitioner, Jason Colon, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He attacks a July 17, 1997 conviction imposed by the Court of Common Pleas for York County, Pennsylvania. (Doc. No. 1). For the reasons that follow, the Court will deny the petition.

Background

The following background has been extracted from the Pennsylvania Superior Court's November 10, 2003 Opinion affirming the trial court's denial of petitioner's second PCRA petition. (Doc. 21, pp. 964a-968a).

Co-defendants[,] [Colon] and Felix Rodriguez[,] ["Rodriguez"] were engaged in an ongoing series of drug transactions...One of the persons working for them in these drug transactions was Jason Nesbit ["Nesbit"].

Someone entered the home of Monique Wells["Wells"], where Nesbit was staying and robbed and beat him severely. The intruder took both money and drugs, which were the property of Colon and Rodriguez. Colon and Rodriguez suspected that the victim in this case, Edgar Day ["Day"], was the one who beat and robbed Nesbit.

Arrangements were made by Colon and Rodriguez to have Adam Byke ["Byke"], a New York "hitman", come to York to deal with [Day]. Byke was known to have killed another person previously. Prior to trial[,] Byke himself was killed in an unrelated occurrence in New York.

Colon and Rodriguez made arrangements with several of the underlings in their drug ring, including [Day's] girlfriend, Wells, to lure Day to a location where he could be confronted. When the confrontation occurred Byke shot [Day] at close range, and caused his death.

Police interviewed the various participants. Initially all of them denied any knowledge of the crime. However, Nesbit, Michelle Ocasio ["Ocasio"], and Wells eventually agreed to cooperate with the Commonwealth, and provided testimony which detailed the actions of Rodriguez and Colon[,] which led to the death of [Day].

In addition to the testimony of the co-conspirators, Nesbit, Wells and Ocasio, the Commonwealth also presented the testimony of Brian McNealy ["McNealy"]. McNealy was a cell mate of [Rodgriguez] after the arrest of Rodriguez for the murder.

McNealy's testimony about the conversation with Rodriguez was as follow: When they arrived at the house, [Day] refused to go in. He wouldn't go in. So [Wells] told him to hold on, this is what [Rodriguez] was telling me. He told her to hold on when she went into the house. She told him [Day] refused to come in. That Felix told her to get the nigger in the car in the alley. When [Wells]. . .went back out. . .[and] saw he had walking [sic]. That's when [Wells began] screaming Hello Edgar [Day] I take you home and [Ocasio] went out there and they got back in the car.

And when they got back in the car [,] [Rodriguez] said it was him Will [sic] right there. Jason Colon, Jason Nesbit, Dude Adam Byke, all of them jump in the cars follow right behind [Byke]. [Wells] hit the alley of Mason Ave. When she hit the alley [,] that's when [Rodriguez,] he blinked the lights. He flashed the lights and made her pull right over.

And then he told me that as soon as Byke got out of the car he grabbed [Day] and told him, Yo, you robbed my boy[,] he [sic] took money it must have been $2000 that [Nesbit] was selling for him and he shot him.

A jury convicted Colon of third degree murder and conspiracy to commit third degree murder.*fn1 Thereafter, the trial court sentenced Colon to an aggregate prison term of 50 to 100 years.

Id at pp. 964a-966a.

On August 25, 1997, petitioner filed a petition under Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541, et seq. ("PCRA"). (Doc. No. 20, pp. 713a-719a). At the same time, Petitioner also filed a direct appeal to the Pennsylvania Superior Court. Id. at p. 720a.

By Order dated September 25, 1997, the York County Court of Common Pleas deemed petitioner's PCRA petition premature and dismissed the petition, "subject to being refiled after the direct appeal is completed." Id. at p. 721a.

On June 9, 1998, the Pennsylvania Superior Court dismissed and returned petitioner's direct appeal for failing to file a brief. Id. at p. 722a.

On October 29, 1999, petitioner filed a PCRA petition, seeking to have his direct appeal rights reinstated. Id. at pp. 723a-728a. By Order dated December 9, 1999, the PCRA Court appointed counsel for Colon and scheduled a hearing. Id. at p. 729a.

On January 28, 2000, a hearing was held on Colon's PCRA petition. Id. at pp. 730a-732a. The PCRA Court determined Colon's PCRA petition was timely filed, reinstated petitioner's direct appeal rights, and appointed appellate counsel. Id.

On February 7, 2000, petitioner's counsel filed Post Verdict Motions in order to preserve petitioner's appeal issues. Id. at pp. 733a, 734a.

On February 22, 2000, Colon filed his direct appeal in which he raised the following issues:

1. The evidence was insufficient to sustain the verdicts of murder and conspiracy.

2. Trial Court abused its discretion by imposing an excessive sentence.

3. Trial court erred in admitting the testimony of Brian McNealy, a prison cellmate of Rodriguez, regarding a statement made by Rodriguez, implicating Colon.

Id. at p. 736a-755a.

On February 27, 2001, the Superior Court issued a Memorandum Opinion affirming Petitioner's conviction and sentence. Id. at p. 789a-798a; see Commonwealth v. Colon, 776 A.2d 1003(Pa. Super. 2001). While the Superior Court addressed petitioner's first two issues on the merits, it found that pursuant to Rule 302 of the Pennsylvania Rules of Appellate Procedure, petitioner had waived his right to object to the admission of McNealy's testimony, and to the court's jury instruction based on this testimony, because he did not raise these objections at trial, or in post-trial motions. Id. at p. 795a.

On March 29, 2001, Colon filed a petition for allowance of appeal to the Supreme Court of Pennsylvania. (Doc. No. 21, pp. 799a-813a. He raised the following issues for review:

A. Whether the Superior Court acted erroneously and arbitrarily when it determined that appellant had waived his right to appellate review of the trial court's jury charge where appellant had raised the claim in his 1925(B) statement and where the trial court had addressed the claim in its 1925(A) opinion?

B. Whether the Superior Court erred when it determined that appellant had waived his right to appellate review of trial counsel's ineffectiveness where the claim was raised on direct appeal by newly appointed appellate counsel?

C. Whether trial counsel rendered ineffective assistance of counsel when he failed to object to the admission of a non testifying co-defendant's statement against appellant, and failed to object to the trial court's jury charge advising the jury to consider this statement as evidence against appellant?

D. Whether the trial court erred when it advised the jury that it could consider a non testifying co-defendant's statement, which implicated ...


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