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Lawson v. Diguglielmo

April 14, 2009

HOWARD LAWSON, AY-7150, PETITIONER,
v.
DAVID DIGUGLIELMO, ET AL., RESPONDENTS.



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

Memorandum and Order

Howard Lawson, an inmate at the State Correctional Institution at Graterford 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 conclude that a basis for appeal exists, a certificate of appealability will be denied.

Lawson is presently serving a 48 month to ten year sentence imposed following his conviction, by a jury, of aggravated assault and harassment by a prisoner at No. CP-02-CR-9081-2000 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on October 1, 2002.*fn1 After some procedural matters were addressed, the petitioner filed a notice of appeal to the Superior Court. In that Court he contended that he was entitled to relief on the following grounds:

1. Was the jury's failure to return a verdict of "not guilty by reason of insanity" or "guilty but mentally ill" against the weight of the evidence, and did the Trial Court err in denying appellant's post sentencing motion challeng[ing] the weight of the evidence?

2. Was the trial court's sentence of 46 months to 10 years, consecutive to the sentences he was currently serving (which gave him a maximum release date of August 6, 2021, and of which the Pennsylvania Department of Probation and Parole has indicated that appellant will serve every single day), in the aggravated range of the Sentencing Guidelines, clearly excessive since it was based upon appellant's prior crimes, which had already been factored into his prior record score?*fn2 On December 30, 2003, the Superior Court affirmed the judgment of sentence.*fn3 Allocatur was denied by the Pennsylvania Supreme Court on May 25, 2004.*fn4

On November 23, 2004, Lawson filed a post-conviction petition, which was originally dismissed on March 19, 2007 and upon review again dismissed on October 4, 2007.*fn5 Lawson then filed a pro se appeal to the Superior Court in which the issues raised were:

1. Whether court erred as a matter of law dismissing petition on premise that appellant had failed to resubmit his petition and is time-barred.

2. Whether the complaint was not signed by District Attorney and therefore it was not a true information and the court did not have jurisdiction to proceed.

3. Was trial counsel ineffective for failure to raise at trial and at post sentencing hearing that the affidavit of probable cause was not signed by either affiant or issuing authority and therefore his arrest and trial were constitutionally and statutorily impermissible.*fn6

On September 16, 2008, the Superior Court affirmed the denial of post-conviction relief.*fn7

The instant petition was executed on December 19, 2008, and in it, Lawson contends he is entitled to relief on the following issues:

1. Trial counsel was ineffective for failure to raise at trial and at [the] post-sentencing hearing that the affidavit of probable cause was not signed by either [the] affiant or issuing authority and therefore [petitioner's] arrest and trial were constitutionally and statutorily impermissible.

2. The complaint was not signed by District Attorney and therefore it was not a true information and the court did ...


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