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Tuttle v. Wynder

January 22, 2008

VIRGIL TUTTLE, PETITIONER
v.
JAMES T. WYNDER, SUPERINTENDENT, RESPONDENT



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

Memorandum

(Complaint Filed 1/12/07)

(Judge Muir)

Petitioner, Virgil Tuttle, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he attacks a conviction imposed by the Court of Common Pleas for Wayne County, Pennsylvania. (Doc. No. 1). By Order dated January 23, 2007, 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), petitioner was advised that he could (1) have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by the court of appeals, or (2) withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (Doc. No. 2). On January 29, 2007, the petitioner returned the notice of election form indicating that he wished to proceed on the petition as filed. (Doc. No. 3). A Show Cause Order was issued on February 13, 2007. (Doc. No. 4). A response (Doc. No. 10) and traverse (Doc. No. 15) having been filed, the petition is ripe for consideration. For the reasons that follow, the petition will be dismissed.

Background

On March 20, 1996, pursuant to a written plea agreement, petitioner pled guilty to First Degree Murder. (Doc. No. 11, pp. 28-35, written plea agreement). As part of the plea agreement, the Commonwealth did not seek the death penalty under 42 Pa. C.S.A. § 9711(b). Id. Instead, the petitioner was sentenced to life imprisonment immediately following the guilty plea colloquy on March 20, 1996. (Doc. No. 11, pp. 36-51, plea colloquy). The petitioner did not pursue a direct appeal from his conviction and sentence, nor did he seek to withdraw his guilty plea.

On November 25, 1998, petitioner filed a petition under Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541, et seq. ("PCRA"). (Doc. No. 11, pp. 53, 62, petition). Petitioner raised the issues of ineffective assistance of counsel and an unlawfully induced guilty plea. Id.

On March 16, 1999, following a hearing on the petition, the PCRA Court issued an Opinion and Notice of Intent to Dismiss the PCRA petition on the grounds that it was untimely, and otherwise lacked merit. (Doc. No. 11, pp. 106-110).

On April 27, 1999, the PCRA Court issued an Opinion and Final Order Pursuant to Pa.R.Crim.Pro. 1507, dismissing the petition. (Doc. No. 12, pp. 116-118).

On August 19, 1999, the petitioner appealed the denial to the Pennsylvania Superior Court. (Doc. No. 12, pp. 119-132, petition). On March 3, 2000, the Superior Court affirmed the PCRA Court's decision that the petition was untimely and properly dismissed. (Doc. No. 12, pp. 133-139).

On December 14, 2005, petitioner filed a second PCRA petition. (Doc. No. 12, pp. 140-198, petition). On January 31, 2006, the PCRA Court issued an Opinion and Notice of Intention to Dismiss Pursuant to Pa.R.Crim.Pro. 907, on the grounds that the petition was untimely, and because there was no support for the petitioner's "base assertions of innocence." (Doc. No. 12, pp. 199-203, Opinion). On March 2, 2006, the PCRA Court issued an Opinion and Final Order, dismissing petitioner's second PCRA petition. (Doc. No. 12, pp. 219-220).

On March 6, 2006, petitioner filed an appeal to the Pennsylvania Superior Court. (Doc. No. 13, pp. 221, appeal). On October 11, 2006, the Superior Court affirmed the PCRA Court's dismissal, finding the following:

A review of the record discloses that on the 20th day of March, 1996, Appellant pleaded guilty to the robbery/murder of gas station attendant John Mousley in October of 1995. The trial court imposed a mandatory sentence of life imprisonment without the possibility of parole. Appellant filed neither a petition to withdraw his plea nor a direct appeal from the judgment of sentence. Rather, after the passage of almost two and one-half years (November 25, 1998), Appellant filed his first PCRA petition alleging the ineffectiveness of trial counsel and an unlawfully induced guilty plea. See Appellant's "Petition Under the Post Conviction Relief Act," 11/25/98, ¶¶4, 5; Record No. 30. A panel of this Court affirmed the trial court's decision that the PCRA petition was untimely and subject to dismissal.*fn1 Commonwealth v. Tuttle, No. 1360 EDA 1999 (filed March 3, 2000)("Tuttle I"). Appellant sought no further review. On December 14, 2005, Appellant filed the present (second) PCRA petition alleging trial counsel's ineffectiveness in not assuring that the specific elements of first degree murder were told to him, which he alleged rendered his guilty plea unknowingly and unintelligently entered. See Appellant's "Memorandum of Law" attached to second PCRA petition, 12/14/05, at 2; Record No. 49. Further, Appellant asserted his "actual innocence" and premised the same upon "the fact that neither the guilty plea hearing court [n]or guilty plea hearing counsel explained [...] the elements of the crimes charged[, which rendered ...] his guilty plea [...] unlawfully induced and unknowing[ly], unintelligently and involuntarily entered [...]." See Appellant's brief, at 30. Appellant also asserted the preceding allegations caused his second PCRA petition to fall outside the barring effect of the one-year statute of limitations. Id. at 24.

On January 31, 2006, the PCRA court issued an opinion and notice to dismiss Appellant's second PCRA petition pursuant to Pa.R.CrimP. 907. The PCRA court did so based upon Commonwealth v. Williams, 660 A.2d 614 (Pa. Super 1995), which held issues raised in a second PCRA petition were waived except those relating to a defendant's innocence or the possibility that the proceedings ...


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