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Tricarico v. Beard

March 5, 2008

JASON TRICARICO, PETITIONER
v.
JEFFREY BEARD, ET AL., RESPONDENTS



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

I. Background

Jason Tricarico ("Petitioner"), an inmate presently confined at the State Correctional Institution, Greensburg, Pennsylvania ("SCI-Greensburg"), initiated this habeas corpus petition pursuant to 28 U.S.C. § 2254. Petitioner is represented by counsel. Named as Respondents are Secretary Jeffrey Beard of the Pennsylvania Department of Corrections, SCI-Greensburg Superintendent David Wakefield and the Attorney General for the Commonwealth of Pennsylvania. Service of the Petition was previously ordered.

On October 4, 1999, Tricarico entered a guilty plea in the Lackawanna County Court of Common Pleas to: one count of corrupt organizations (Count 1); one count of conspiracy to deliver cocaine (Count 3); three counts of delivery of cocaine (Counts 4, 5, & 6); one count of possession with intent to deliver cocaine (Count 7); and criminal attempt to possess with intent to deliver cocaine (Count 10). The plea was the result of a negotiated written plea agreement between the Commonwealth and Petitioner's counsel.*fn1

Tricarico was sentenced on March 31, 2000 to an aggregate fourteen to twenty-eight year term of incarceration. Specifically, he was sentenced as follows: Count 1 -one and one half to three years; Count 3 - five to ten years; Counts 4, 5, & 6 - three to six years on each count; Count 7 - four to eight years; and Count 10 - five to ten years. Counts 1, 3, 4, 5, & 6 were ordered to run concurrently. Counts 7 and 10 were ordered to run consecutively.

Following the imposition of sentence, Petitioner made a verbal request to withdraw his guilty plea. On April 26, 2000, Tricarico's counsel filed a written motion to withdraw the guilty plea nunc pro tunc. The motion to withdraw was denied by the Court of Common Pleas on May 12, 2000.

Petitioner next initiated a direct appeal which argued that the trial court abused its discretion in sentencing Tricarico. Pennsylvania's Superior Court affirmed Tricarico's conviction and sentence. See Commonwealth v. Tricarico, 776 A.2d 296 (Pa. Super. 2001) (Table). A petition for allowance of appeal was thereafter denied by the Pennsylvania Supreme Court. See Commonwealth v. Tricarico, 782 A.2d 545 (Pa. 2001) (Table). A petition for writ of certiorari was denied by the United States Supreme Court on October 9, 2001. See Commonwealth v. Tricarico, 534 U.S. 962 (2001).

Tricarico next sought collateral relief via a petition filed pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"). His PCRA petition argued that prior counsel had provided ineffective assistance. Specifically, it was asserted that trial counsel was deficient for: guaranteeing Tricarico that a four to eight year sentence would be imposed; improperly basing an estimate on the length of Petitioner's sentence on outdated state law; neglecting to undertake an independent investigation; failing to file pre-trial motions; and not adequately informing Petitioner as to his right to withdraw his plea. An evidentiary hearing was conducted by the trial court on June 28, 2002. By opinion dated December 23, 2002, the trial court denied the PCRA petition.*fn2 The Pennsylvania Superior Court affirmed the trial court's decision on September 9, 2003. See Commonwealth v. Tricarico, 835 A.2d 838 (Pa. Super. 2003) (Table).*fn3 A petition for allowance of appeal was subsequently denied. See Commonwealth v. Tricarico, 847 A.2d 1284 (Pa. 2004) (Table).

In his present action, Tricarico initially claims that trial counsel provided ineffective assistance when he "materially misapprehended the Pennsylvania law regarding sentencing of multiple inchoate offenses, and based upon the misapprehension, guaranteed Petitioner a sentence of 4 to 8 years, upon which Petitioner relied in entering a guilty plea." (Doc. 1 at 10 (emphasis omitted).) His second claim contends that trial counsel was deficient for "advising defendant to plead guilty without adequately and independently investigating the defense of entrapment." (Id. at 22 (emphasis omitted).)

Respondents acknowledge that Petitioner's action is timely filed and that he has fully exhausted his claims in state court. However, they contend that his arguments for relief are meritless.

II. Legal Standard for Review of State Court Decision under § 2254(d)

"The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Specifically, when a federal-law issue has been adjudicated on the merits by a state court, the federal court reverses only when the decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).*fn4 See generally Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95, 104-05 (3d Cir. 2001). The Supreme Court has held that the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning. Williams v. Taylor, 529 U.S. 362, 404-405 (2000). As the Supreme Court explained in Bell:

A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . . an unreasonable application is different from an incorrect one.

Bell, 535 U.S. at 694 (citations omitted); accord Keller, 251 F.3d at 417-18 (holding that a district court entertaining a § 2254 action must first address whether the state court decision was contrary to Supreme Court precedent); Martini v. Hendricks, 188 F. Supp. 2d 505, 5120 (D.N.J. 2002) (court must evaluate reasonableness of factual findings in light of evidence presented in the state court proceeding). Findings of fact by the state courts are presumed to ...


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