The opinion of the court was delivered by: William W. Caldwell United States District Judge
On August 5, 2008, Johnny Collins, an inmate at SCI- Forest, Marienville, Pennsylvania, filed this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is challenging his convictions in the Court of Common Pleas of Dauphin County for theft by receiving stolen property at No. CP-22-CR-2607-2002 and for possession of cocaine with intent to distribute at No. CP-22-CR-4629-2006. In its opposition, the Commonwealth argues that the petition should be dismissed because Collins has either procedurally defaulted his claims or has failed to exhaust state-court remedies.
The court views and disposes of the petition in the following way. The challenge to the theft conviction contains a mix of one exhausted claim and several procedurally defaulted ones. The petition will be denied on the merits as to the exhausted claim, which challenges the sufficiency of the evidence, and denied as to the remaining claims because they have been procedurally defaulted. The challenge to the drug conviction sets forth nothing but procedurally defaulted claims, and on that basis the petition will be denied as to the drug conviction.
After being found in possession of a stolen automobile on July 22, 2002, Petitioner was charged with theft by receiving stolen property. On January 15, 2003, a jury found him guilty. On February 14, 2003, Collins filed a pro se, premature notice of appeal which was discontinued on February 28, 2003, by motion of his trial counsel.
On May 7, 2003, Collins was sentenced to intermediate punishment of sixty months, with the first twelve months to be served in a work release center. On May 19, 2003, counsel filed a motion to modify the sentence, and on June 6, 2003, Petitioner filed a second premature notice of appeal, which was again withdrawn by counsel on July 1, 2003.
On June 23, 2003, the court denied the motion to modify the sentence, and on July 23, 2003, counsel filed an appeal to the Superior Court of Pennsylvania. The appeal raised two issues. First, there was insufficient evidence to sustain the conviction because the Commonwealth failed to show that Petitioner knew, or should have known, that the car was stolen, one of the elements of the offense. Second, the restitution order that was part of the sentence was erroneous.
On the insufficient-evidence claim, counsel first cited Commonwealth v. Jones, 771 A.2d 796 (Pa. Super. 2001), for the Pennsylvania test for evaluating the sufficiency of the evidence.*fn1 Petitioner then cited state-law cases on the elements of the offense of theft by receiving stolen property in arguing, as the superior court stated, that he lacked the mens rea to commit the offense because the evidence did not show that he knew, or should have known, that the car was stolen. In making the argument, Petitioner pointed to evidence at trial showing that he had been cooperative with the police and had admitted that he had been driving the car. He also relied on evidence that there was no damage to the vehicle, such as signs of forced entry, that would have indicated he knew the car was stolen. (Doc. 6-6, Petitioner's state-court appellate brief, CM/ECF page 32).
While the appeal was pending, Collins filed a petition under the Pennsylvania Post Conviction Relief Act (PCRA). 42 Pa. C.S. § 9541-9546. The petition was dismissed as premature, due to the pending direct appeal.
On May 28, 2004, the superior court affirmed Collins's conviction and sentence in an unpublished disposition. Commonwealth v. Collins, No. 1201 MDA 2003 (Pa. Super. May 28, 2004). The superior court rejected the insufficient-evidence claim. It employed the sufficiency-of-the-evidence standard quoted above, and relied on factors identified in Commonwealth v. Foreman, 797 A.2d 1005, 1012-13 (Pa. Super. 2002), to establish mens rea for the offense. Two of the factors are the defendant's conduct at the time of arrest and whether any explanation offered for possession of the property was "unsatisfactory." Id. at 1213. The evidence in this regard showed that Petitioner first told the police that he had received the car from his uncle, whose name he said he could not recall, and then named another person he had gotten it from, who was not his uncle. (Doc. 6-7, Collins opinion, CM/ECF page 15). Upholding the conviction, the court stated that "[t]his deceptive conduct, in conjunction with the recent nature of the theft, provided sufficient evidence to demonstrate that appellant knew that the vehicle had been stolen." (Id.).
On October 27, 2004, Collins filed a pro se PCRA petition. The petition made four claims, all based on ineffective assistance of counsel: (1) counsel failed to take an appeal when Petitioner requested that he do so; (2) counsel failed to subpoena witnesses; (3) counsel failed to object to the prosecutor's changing the testimony during his closing; and (4) counsel failed to file a motion for resentencing.
On November 10, 2004, PCRA counsel was appointed for Collins. On May 13, 2005, counsel filed a motion to withdraw on the ground that Petitioner's PCRA claims lacked merit. Almost four years later, on September 15, 2008, the PCRA court gave Petitioner notice of its intent to grant PCRA counsel's motion to withdraw and to dismiss the PCRA petition. It also gave him twenty days to respond. Petitioner did so. The PCRA petition is still pending.
In the meantime, on April 3, 2006, Collins was arrested by Harrisburg Police and charged with possession of cocaine with intent to distribute. On January 10, 2007, he pled guilty and was sentenced on the same day to two and one-half to five years of imprisonment. He took no direct ...