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Lowther v. Dist. Attorney of the County of Fayette

August 12, 2008

SHAWN LEE LOWTHER, GG-0640, PETITIONER,
v.
THE DISTRICT ATTORNEY OF THE COUNTY OF FAYETTE, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Mitchell, M.J.

MEMORANDUM AND ORDER

Shawn Lee Lowther, an inmate at the State Correctional Institution at Dallas has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition will be dismissed and because no reasonable jurists could conclude that there is a basis for appeal, a certificate of appealability will be denied.

Lowther is presently serving a twelve to forty year sentence imposed follow his conviction, upon a plea of guilty, to a charge of third degree murder at No. CP-26-CR-1406-2004 in the Court of Common Pleas of Fayette County, Pennsylvania. This sentence was imposed on June 23, 2005.*fn1 No direct appeal was pursued, although the petitioner's Motion for Modification of Sentence was denied on July 6, 2005.*fn2

On October 24, 2005, the petitioner filed a pro se post-conviction petition. Following a hearing, on June 5, 2006, the petition was denied.*fn3

An appeal was taken to the Superior Court in which the issues presented were:

I. Whether the PCRA Court erred in denying Appellant's claims of ineffective assistance of counsel?

A. Whether counsel was ineffective for failing to file a direct appeal or preserve Appellant's appeal rights to the Pennsylvania Superior Court denying the Appellant his absolute right to directly appeal his sentence as requested by the Appellant for the purposes of challenging the propriety of his sentence and the denial of a motion to continue to retain private counsel?

B. Whether counsel was ineffective for failing to request that the lower court permit the Appellant to withdraw his guilty plea prior to sentencing as requested by the Appellant?

C. Whether counsel was ineffective for failing to properly and effectively communicate with Appellant so that he understood the elements of the different degrees of homicide and what the Commonwealth had to prove in order for him to be found guilty and/or properly investigate his case to prepare a defense on his behalf?*fn4 On February 27, 2007, the denial of post-conviction relief was affirmed.*fn5 On October 5, 2007, leave to appeal was denied by the Pennsylvania Supreme Court. Commonwealth v. Lowther, 934 A.2d 73 (Pa. Supreme. 2007).

The petitioner now comes before this Court and contends he is entitled to relief on the following grounds:

1. Whether the state court's reasoning and judgment was contrary to and/or involved an unreasonable application of clearly established federal law and holdings and United States Supreme Court precedent on whether counsel was not ineffective for failing to file a direct appeal or preserve petitioner's appeal rights to the Pennsylvania Superior Court denying petitioner his absolute right to directly appeal his sentence as requested by petitioner for the purposes of challenging the propriety of his sentence and the denial of a motion to continue to retain private counsel?

2. Whether the state court's reasoning and judgment was contrary to and/or involved an unreasonable application of clearly established federal law and United States Supreme Court precedent on whether counsel was not ineffective for failing to request that the lower court permit petitioner to withdraw his guilty plea prior to sentencing as requested by the petitioner?

3. Whether counsel was ineffective for failing to properly and effectively communicate with petitioner so that he understood the elements of the different degrees of homicide and what the Commonwealth had to prove in order for him to be found guilty and/or properly investigate his case to prepare a defense on his behalf as well as the Court of Common Pleas failure to explain the predicate elements of the offense where such failure cannot truly be said to be a knowing, voluntary and intelligent entry of a guilty plea in violation of petitioner's right to effective assistance of counsel and due process of law?*fn6 That is, it would appear that the petitioner is alleging that he is entitled to relief here on grounds of ineffective assistance of counsel in that counsel failed to file an appeal or preserve the petitioner's appeal rights; that counsel was ineffective for failing to move to withdraw the petitioner's guilty plea and that the petitioner's guilty plea was not knowingly entered with the effective assistance of counsel.

It is provided in 28 U.S.C. ยง2254(b) that: An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the ...


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