The opinion of the court was delivered by: Judge Caputo
Petitioner Gary Cheslak, an inmate currently confined at the Coal Township State Correctional Institution ("SCI-Coal Township") in Coal Township, Pennsylvania, commenced this action by filing a petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254.*fn1 (Doc. 1.) Petitioner alleges that ineffective assistance by his trial counsel led him to involuntarily and unknowingly enter into a guilty plea. The parties have briefed the issues, and the matter is ripe for disposition. For the reasons that follow, the Petition will be denied.
On December 17, 1997, Petitioner pled guilty to two counts of rape, involuntary deviate sexual intercourse, aggravated indecent assault, two counts of kidnapping, unlawful restraint, two counts of terroristic threats, recklessly endangering another person, and intimidation of a witness. The relevant facts were summarized by the Pennsylvania Superior Court as follows:
In two separate incidents, on January 17th and November 7th of 1996, appellant abducted women by gaining entrance to their parked vehicles after dark and lying in wait in the backseats until the women returned. In both instances, appellant had manipulated the vehicle's interior dome lighting so the vehicles remained dark; threatened and then kidnapped his unsuspecting victims; bound their hands and placed tape over their eyes, took them to his parents' secluded cabin, forced them to drink whiskey, removed their clothing and raped and sexually assaulted them.
The victim of the November 7th abduction and rape, A.H., was able to lead police back to the cabin. Upon receiving the consent of appellant's parents to search, police entered the cabin and discovered a myriad of physical evidence, including A.H.'s undergarments and fibers on duct tape from A.H.'s sweater. Additionally, the semen recovered from the rape kits in both cases and the appellant's blood were subject to DNA testing. The results establish a one in two billion chance appellant was not the rapist. (Doc. 2-3, Commonwealth v. Cheslak, No. 2805 Philadelphia 1998, unpublished memorandum at 2 (Pa. Super. filed July 1, 1999) (footnotes omitted, emphasis original)).*fn2 On May 29, 1998, Petitioner was sentenced by the Court of Common Pleas of Carbon County to twenty-five years to life imprisonment. On June 10, 1998, he filed post-sentencing motions, including a Motion to reconsider sentence, which were dismissed.
On September 4, 1998, Petitioner's trial counsel, George Dydansky, Esquire, withdrew his appearance. Robert A. Kurtz, Esquire, entered his appearance on behalf of Petitioner, and on September 10, 1998, he filed a timely appeal to the Pennsylvania Superior Court. Petitioner raised six (6) issues on direct appeal. Three issues pertained to sentencing errors. Petitioner also challenged the trial court's denial of his motion to suppress physical evidence and the adequacy of the guilty plea colloquy in that he was not informed therein of his right to a jury trial. Petitioner's final issue was set forth as follows by the Superior Court in its Memorandum Opinion:
VI. Was [appellant] denied the effective representation of counsel guaranteed to him by the US Constitution, Sixth Amendment, when his previous counsel (1) failed to file a motion to dismiss, due to the excessive and prejudiced delay between the alleged crimes pertaining to [C.R.] and [appellant's] arrest for committing these alleged crimes, and/or (2) after the court denied [appellant's] motion to suppress physical evidence rather than stand trial, and/or (3) failed to file a motion to withdraw [appellant's] guilty plea when defendant received the sentence he is now serving?
(Doc. 2-3 at 4.) On July 1, 1999, the Superior Court issued its Opinion in which it vacated the Judgment of sentence, remanded for resentencing, and affirmed the trial court on all other issues. (See Doc. 2-3.) The Superior Court found as follows with respect to Petitioner's ineffective assistance of counsel claims:
Upon careful and independent review of appellant's three claims of ineffectiveness, we find all have been waived pursuant to his guilty plea. Moyer, supra.*fn3 Moreover, a thorough review of the record makes evident the fact these allegations are without merit. (Id. at 10.)
On October 25, 1999, the Court of Common Pleas of Carbon County issued new Orders of Sentence, consistent with the Superior Court's direction on remand, sentencing Petitioner to an aggregate sentence of twenty-five to fifty-two years imprisonment.
On February 11, 2000, Mr. Kurtz was permitted to withdraw his appearance by the lower court. On February 22, 2000, Petitioner filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. ANN. §§ 9541 et seq. On January 16, 2001, Robert Buttner, Esquire, was appointed as counsel to assist Petitioner in the PCRA proceedings. On April 19, 2002, Mr. Buttner filed an amended PCRA Petition on Petitioner's behalf (Doc. 13, Ex. C).
In his amended PCRA Petition, Petitioner raised ineffective assistance of trial counsel for: (1) failing to inform Petitioner of the elements or nature of all the charges to which he was pleading guilty (Doc. 13, Ex. C at 10-12); (2) failing to inform Petitioner that the sentence on each charge could run consecutively (Id. at 12-14); (3) failing to advise Petitioner that he was pleading to all charges under each Information (Id. at 14-16); (4) informing Petitioner that he would receive leniency in sentencing in exchange for his guilty plea (Id. at 18-19); and (5) advising Petitioner that it was not in his best interests to seek withdrawal of his guilty plea following sentencing while maintaining that the trial court had made a "promise" to be lenient (Id. at 19-20). Petitioner also alleged ineffective assistance of appellate counsel for failing to adequately and properly preserve ineffective assistance of trial counsel issues on appeal. (Id. at 20-24). Finally, Petitioner alleged that the trial court abused its power by engaging in negotiation of a plea and in unlawfully inducing him to enter into a guilty plea by representing that Petitioner would receive leniency in sentencing in exchange for his plea. (Id. at 16-18.) Petitioner asserted that he should be permitted to withdraw his guilty plea on all of these bases.
A full evidentiary hearing on the PCRA Petition was held before the Honorable Barry S. Feudale on April 25 and August 27, 2002. On March 13, 2003, Judge Feudale entered an Opinion and Order denying and dismissing the PCRA Petition finding "no arguable merit to any of [Petitioner's] contentions nor any manifest injustice that would justify allowing him to withdraw his pleas of guilty." (Doc. 2-5 at 20, PCRA Court Opinion).
On April 17, 2003, Petitioner filed a timely appeal to the Pennsylvania Superior Court in which he raised the following issues:
1. Did the Trial Court engage[ ] in or abuse its power by participating in a conference with Trial Counsel and representing to Trial Counsel that the Defendant would be giv[en] consideration in exchange for a plea of guilty thereby inducing the Defendant to involuntarily plead guilty [?]
2. Should the Defendant be allowed to withdraw his plea of guilty in that same was involuntarily and unknowingly entered because Trial Counsel rendered ineffective assistance of Counsel by informing the Defendant that he had engaged in a conference with the Trial Court and that the Trial Court had advised that if the Defendant pled guilty he would receive consideration synonymous with leniency without placing same on the record or informing the Defendant that he may not receive leniency, and, thereafter, counseling the Defendant not to seek withdrawal of his guilty plea based upon said representation [?]
3. Should the Defendant be allowed to withdraw his plea of 5 guilt in that same was involuntarily and unknowingly entered because both Trial Counsel and the Trial Court failed to inform the Defendant of the sentence to which he was exposed on each charge and that each sentence could be run consecutive to the other and, then, failed to object to the oral colloquy which contained the same flaws and deficiencies [?]
4. Should the Defendant be allowed to withdraw his plea of guilt in that same was involuntarily and unknowingly entered because Trial Counsel failed to inform the Defendant of the elements and nature of the crimes charged and, then, failed to object to the oral colloquy which did not apprize the Defendant of the elements and nature of the crimes charged [?]
5. Should the Defendant be allowed to withdraw his plea of guilt in that same was involuntarily and unknowingly entered because Trial Counsel failed to inform the Defendant that he was entering an open plea to all charges contained in the Informations and, then, failed to object to the oral colloquy which also failed to apprize the ...