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Ely v. Ballard

May 1, 2009

GEORGE F. ELY, PETITIONER
v.
WARDEN DAVIS BALLARD; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS



The opinion of the court was delivered by: Magistrate Judge Amy Reynolds Hay

MEMORANDUM OPINION

HAY, Magistrate Judge

George Franklin Ely ("Petitioner"), a state convict,*fn1 pleaded guilty to an open charge of homicide, pursuant to a plea agreement. The terms of the plea agreement were that Petitioner would plead guilty to an open charge of homicide, and he would cooperate with the prosecuting authorities and testify against Petitioner's co-actors in the contract murder. In addition, Petitioner would appear before a Judge who would hold a degree of guilt hearing and determine the degree of murder for which Petitioner was guilty. The only promise made by the District Attorney of Washington County was that if Petitioner were to be found guilty of first degree, the District Attorney would not seek the death penalty.

Petitioner raises four issues in his habeas petition:

GROUND ONE: Miranda v. Arizona. [Petitioner alleged that his confession and statements were obtained in violation of Miranda.] [Dkt. [1] at 5.]

GROUND TWO: Motion to Withdraw Guilty Plea. [Petitioner alleged that he was actually innocent of the murder and only pleaded guilty because of, inter alia, allegedly false information told to him concerning evidence against him and he should have been permitted to withdraw his plea since he sought to do so prior to being sentenced.] [Dkt. [1] at 18.]

GROUND THREE: Ineffective Assistance of [trial/guilty plea] Counsel. [Petitioner contended that his trial counsel was ineffective for many reasons, including failures to investigate.] [Dkt. [1] at 22.]

GROUND FOUR: PROSECUTORIAL MISCONDUCT. [Petitioner alleged that the prosecutor illegally withheld discovery from Petitioner's trial counsel.] [Dkt. [1] at 29.]

Petitioner has procedurally defaulted Grounds One, Three and Four because he never raised them in his direct appeal, and even if he had raised them in his PCRA petition, he never appealed the dismissal of his PCRA petition by the PCRA court. Ground Two is procedurally defaulted because it does not appear that he raised his desire to withdraw his guilty plea as a matter of federal constitutional law but merely as a state law issue under Pennsylvania Rules of Criminal Procedure. In the alternative, even if he had raised Ground Two as a federal constitutional issue, he fails to carry his burden to show that the state courts' adjudication of the claim was contrary to or an unreasonable application of United States Supreme Court precedent. Nor has he shown that the state courts' adjudication involved an unreasonable determination of the facts in light of the evidence presented at his plea colloquy and his degree of guilt hearing.

Factual and Procedural History

Petitioner pleaded guilty on September 26, 1997. As a consequence of his agreement to cooperate in other prosecutions, including the prosecution of his co-actor, John Dino Martin, Petitioner's sentencing was delayed until September 11, 2003. The delay between his plea of guilt and his sentencing was a consequence of the fact that Mr. Martin, who had previously been convicted of first degree murder in West Virginia and of criminal RICO charges in Federal Court, had been placed in the Federal Witness Protection Program and made to serve his state and federal sentences in a Federal Bureau of Prisons facility under an assumed identity. Hence, at the time of the Washington County District Attorney's initiation of criminal proceedings against Mr. Martin, there were great difficulties in locating Mr. Martin and in bringing him to Washington County for Court appearances, given his status in the Federal Witness Protection program. The Washington County charges against Mr. Martin were eventually resolved in a plea agreement, wherein Mr. Martin agreed to plead guilty to criminal conspiracy to commit homicide for his role in the contract killing and he was sentenced to 5-10 years imprisonment, the sentence to run concurrent to the sentences that Mr. Martin was already serving. Mr. Martin's case concluded on July 29, 2003, the date whereon he was sentenced by the Washington County Common Pleas Court.

Mr. Martin received a significantly better plea bargain than had Petitioner because the whole case against Mr. Martin was based upon the testimony of Petitioner, whereas the case against Petitioner was much stronger. Moreover, there was significant potential for impeachment of Petitioner's testimony against Mr. Martin, including the fact that during a botched robbery that Petitioner and Martin were involved in, where the victim shot and seriously injured Petitioner, Martin attempted to "finish off" Petitioner by firing his gun at Petitioner but Martin's gun jammed.

With the Martin prosecution concluded, the Washington County Court of Common Pleas scheduled a degree of guilt hearing for Petitioner to be held on September 10, 2003. On August 28, 2003, Petitioner filed a motion to withdraw his guilty plea and to dismiss the charges due to an alleged violation of a Pennsylvania State Rule of Criminal Procedure.*fn2 The Washington County Court of Common Pleas then ordered that the degree of guilt hearing scheduled for September 10, 2003 would be utilized to also hold a hearing on the two motions filed by Petitioner.

The Court denied both motions in open court, Dkt. [14-3] at 26 to 28; 40 to 44, finding no violation of the state rule of criminal procedure and finding that Petitioner's guilty plea was knowingly and voluntarily entered. See also Dkt. [15-2] at 20 to 33 (trial court opinion in support of denying the motions). The hearing continued and the Court held the degree of guilt hearing and found Petitioner guilty of first degree murder and sentenced Petitioner to life in prison, the only sentence possible, given that the District Attorney had promised not to seek the death penalty.

Petitioner appealed to the Superior Court from the Trial Court's decision. In that appeal, Petitioner raised only the following two issues.

I. SHOULD APPELLANT['S] REQUEST TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING HAVE BEEN GRANTED?

II. WAS RULE 704 OF THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE VIOLATED AND WAS THE APPELLANT PREJUDICED BY SUCH A VIOLATION Dkt. [15-2] at 6. The Superior Court affirmed. Dkt. [15] at 49-53.

Petitioner through counsel then filed a Petition for Allowance of Appeal ("PAA") in the Pennsylvania Supreme Court wherein he raised the same issues as follows:

I. WHETHER THE PETITIONER'S MOTION TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING SHOULD HAVE BEEN GRANTED, WHERE THE PETITIONER TESTIFIES THAT HE IS INNOCENT AND THE COMMONWEALTH PRESENTS NO EVIDENCE IT WOULD BE SUBSTANTIALLY PREJUDICED BY GRANTING THE MOTION TO WITHDRAW HIS GUILTY PLEA?

II. WHETHER THE PETITIONER'S MOTION TO DISMISS THE CHARGES FOR VIOLATING RULE 704 OF THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE SHOULD HAVE BEEN GRANTED, WHERE APPROXIMATELY SIX YEARS ELAPSE[D] BETWEEN GUILTY PLEA AND SENTENCING ...


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