The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge
Daniel Kevin Sittler, by his counsel, has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed, and because reasonable jurists could not believe a basis for appeal exists, a certificate of appealability will be denied.
Sittler is presently incarcerated at the State Regional Correctional Facility at Mercer serving a two and a half to five year sentence for driving under the influence; a consecutive one to two year sentence as a habitual offender and a mandatory 90 day sentence for driving under suspension, following his conviction, by the court, at No. CC 20009170 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence which is effectively a three year and nine month to seven year sentence was imposed on February 19, 2002.*fn1
Petitioner filed an appeal to the Superior Court in which the issues presented were:
I. Whether the trial court erred in denying appellant's pre-trial motion to habeas corpus relief.
II. Whether the trial court erred in denying appellant's pre-trial motion to suppress evidence.
III. Whether the trial court erred in not granting appellant's petition requesting judicial recusal.*fn2 On March 8, 2004, the judgment of sentence was essentially affirmed, and on December 29, 2004, leave to appeal was denied by the Pennsylvania Supreme Court.*fn3
A post-conviction petition was filed on July 13, 2005.*fn4 Relief was denied on August 8, 2006.*fn5
An appeal was taken to the Superior Court in which the issues presented were:
I. Did defense counsel render ineffective assistance of counsel, when he failed to investigate the validity of the Commonwealth Expert witness's opinion contained in the discovery materials and when he failed to present an expert witness to respond to trial testimony given by the Commonwealth's expert witness?
II. Did defense counsel render ineffective assistance of counsel, when, after filing a petition requesting judicial recusal and having it denied, he advised Mr. Sittler to proceed with a non-jury trial despite not informing Mr. Sittler that defense counsel: (1) had a lack of confidence in the lower court's impartiality; and, (2) had not retained an expert toxicologist as a witness.*fn6 On December 20, 2007, the denial of post-conviction relief was affirmed and leave to appeal to the Pennsylvania Supreme Court was not sought.*fn7
The instant petition was filed on December 18, 2008. In his petition, Sittler contends he is entitled to relief on the following grounds:
1. Petitioner's due process rights and entitlement to the effective assistance of counsel were violated when trial counsel failed to investigate the validity of the Commonwealth's expert witness' opinion and failed to present an ...