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Jackson v. Palakovich

November 26, 2008

RICHARD JACKSON,
v.
JOHN PALAKOVICH, ET AL.



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

MEMORANDUM

I. Introduction

Petitioner, Richard Jackson, filed a federal Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Petitioner claims that his state trial court judge committed sentencing violations and that the prosecutor committed prejudicial misconduct in violation of double jeopardy.

The undersigned referred the case to Magistrate Judge Linda K. Caracappa for a Report and Recommendation ("R & R") on the merits. Magistrate Judge Caracappa filed her R & R (Doc. No. 10) on May 30 , 2008, and presently before the Court are Petitioner's Objections to the R & R (Doc. No. 13), which he timely filed on July 9, 2008.

Upon independent and thorough review, and for the reasons stated below, this Court rejects Petitioner's objections and adopts Magistrate Judge Caracappa's R & R.

II. Factual Background and Procedural History

According to the record before the Court, Petitioner was convicted of two counts of robbery and one count of criminal conspiracy by a jury in the Philadelphia Court of Common Pleas on March 6, 1997. The conviction arose out of a robbery of a Rite Aid drugstore committed by Petitioner and his co-conspirator in December 2005. Petitioner's co-conspirator forced the store manager at gunpoint to open the store safe and then stole about $1,600 while Petitioner distracted the store security guard.

Petitioner initially was charged with criminal conspiracy, firearms-related charges, and three counts of robbery. During his first trial, the jury found Petitioner not guilty on one count of robbery and the firearms charges; the jury did not reach a verdict on the remaining charges. At his second trial, Petitioner was convicted of two counts of robbery and one count of criminal conspiracy. Judge Eugene Maier sentenced Petitioner to twenty-five to fifty years imprisonment.

Petitioner appealed his conviction on the grounds of prosecutorial misconduct, and the Superior Court affirmed on September 14, 1998. Commonwealth v. Jackson, 726 A.2d 1079 (Pa. Super. Ct. 1998). The Supreme Court of Pennsylvania declined review. Commonwealth v. Jackson, 739 A.2d 105 (Pa. Super. Ct. 1998).

Petitioner filed a petition for relief pursuant to the Post Conviction Relief Act, 42 Pa. C.S. § 9541, et seq., on June 15, 2000. The trial court denied relief on March 19, 2001. The Superior Court reversed the trial court's decision and remanded the case for re-sentencing. The Court determined that Petitioner's counsel on direct appeal was ineffective due to failure to raise the trial court's failure to order a pre-sentencing report without sufficient reason. Commonwealth v. Jackson, 797 A.2d 373 (Pa. Super. Ct. 2002).

On remand, Petitioner was re-sentenced by Judge Maier to twenty to forty years imprisonment plus ten years probation. The court imposed the same sentences for each of the two counts of robbery (ten to twenty years each) but changed the conspiracy sentence from imprisonment to probation. The Petitioner appealed his re-sentencing, and the Superior Court affirmed the trial court. Commonwealth v. Jackson, 850 A.2d 9 (Pa. Super. Ct. 2004). The Supreme Court of Pennsylvania declined review. 956 A.2d 832 (Pa. 2004).

Petitioner filed his first petition for Habeas Corpus in this Court on October 12, 2004, asserting ineffective assistance of counsel for failing to argue that the trial court impermissibly enhanced his sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000) on the basis of facts not necessarily before the jury, as extended by Blakely v. Washington, 542 U.S. 296 (2004). This Court dismissed Petitioner's Writ without prejudice as unexhausted since it had not been directly considered by a state court. See Jackson v. Palakovich, 2005 WL 61453 (2005).

Petitioner filed a second Post Conviction Relief Act claim in Pennsylvania state court. The trial court dismissed his application as frivolous and allowed his counsel to withdraw subsequent to counsel's "no merit" letter pursuant to Commonwealth v. Finley, 479 A.2d 568 (Pa. Super. Ct. 1984). Petitioner appealed, making two claims: (1) his trial counsel was ineffective for failing to attack his sentence as based on prior juvenile adjudications that enhanced the sentence and other impermissible factors and (2) his trial counsel was ineffective for failing to raise the Apprendi claim described above. The Superior Court rejected the first claim as "previously litigated," since its previous decision rejecting his claim of sentencing error on direct appeal foreclosed a finding of ineffective assistance of counsel for failing to assert the same or materially identical claims of error. The court rejected his second claim because the case was not appropriate for an Apprendi analysis where none of the factors changed the grading of the offense or increased the maximum sentence that Petitioner received for robbery. Commonwealth v. Jackson, 932 A.2d 255 (2007). Petitioner did not seek review by the Pennsylvania Supreme Court.

Petitioner filed this renewed Petition for Writ of Habeas Corpus on September 24, 2007 (Doc. No. 1). The Respondents filed a Response on November 11, 2007 (Doc. No. 6), and the Petitioner filed ...


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