The opinion of the court was delivered by: (Judge Munley)
Before the court for disposition is Gary Hughes' (hereinafter "petitioner") petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The matter has been fully briefed and is ripe for disposition.
Heather Reed and a friend, Shari McGee, were robbed on the streets of Harrisburg, Pennsylvania at around midnight on October 26-27, 2001. They were walking home when three women emerged from a black Volvo station wagon and confronted them. (Resp. Ex. A, Notes of trial testimony (hereinafter "N.T.") at 23-25, 27, 30, 33). The women demanded purses and money from McGee and Reed. (Id. at 33). The thieves made off with Reed's purse and cash from McGee. The three women subsequently took a "check card" from McGee's purse and made purchases with it at several local establishments. (Id. at 51-53).
Detective David Lau of the Harrisburg Police Department, Criminal Investigation Division, investigated the crime. He received information that the petitioner may have had involvement in this incident. (Id. at 64). He contacted petitioner for an interview. During the interview, petitioner admitted that he had been with four others on the night in question and that they had discussed the possibility of committing a robbery. They then set out to find someone to rob. They found the two victims, and the robbery occurred. During the robbery, defendant, who had been seated in the back seat of the automobile, moved to the front seat and maneuvered the car to a location closer to where the robbery was occurring. (Id. at 64-65). Defendant also admitted that he received some clothing and cigarettes purchased with the stolen check card. (Id. at 67). Although petitioner freely made a verbal statement to the detective, he refused to let his statement be transcribed or tape recorded. (Id. at 65-66).
Subsequently, petitioner was arrested for crimes involved with this incident. On September 13, 2002, a jury in the Court of Common Pleas of Dauphin County, Pennsylvania convicted petitioner of two counts of robbery, two counts of criminal conspiracy to commit robbery, one count of access device fraud and one count of criminal conspiracy to commit access device fraud. The court sentenced him in the aggregate to 171 to 528 months in prison, fines totaling $500.00 and payment of the costs of prosecution. (Doc. 12, Govt. Response, ¶ 6).
On September 13, 2002, Petitioner appealed his conviction to the Superior Court of Pennsylvania, and his appellate counsel withdrew. New counsel was appointed to represent petitioner. Petitioner's appointed counsel filed a "Motion To Discontinue Appeal." On December 3, 2003, the Superior Court treated the motion as a praecipe for discontinuance of the appeal, and the appeal was discontinued. (Res. Ex. E).
On March 17, 2004, petitioner filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PENN. CONS. STAT. ANN. § 9541 et seq. Appointed counsel filed an amended PCRA petition on July 19, 2004. The PCRA/trial court denied PCRA relief on June 15, 2005. (Res. Ex. H). On appeal, the appointed counsel petitioned the court to withdraw as any issue raised on appeal would be frivolous. (Res. Ex. J). The Superior Court denied plaintiff's appeal. (Res. Ex. K). Petitioner filed a petition for allowance of appeal to the Supreme Court of Pennsylvania, which was denied on December 27, 2006. Commonwealth v. Hughes, 917 A.2d 845 (Pa. 2006) (Table).
Petitioner then filed the instant petition for a writ of habeas corpus under section 2254 of Title 42 of the United States Code which allows federal district courts to entertain a claim that the state prisoner is in custody in violation of the federal constitution or federal law.
We may grant habeas corpus relief to a person in state court custody only where the state court's decision is contrary to, or involved an unreasonable application of, federal law or if the state court decision is based upon an unreasonable determination of the facts in light of the evidence presented to the state court. 28 U.S.C. § 2254(d). Specifically, section 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court ...