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West v. Lockett

May 6, 2009

GIRARD WEST, PETITIONER
v.
MELVIN LOCKETT; THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS



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

MEMORANDUM OPINION AND ORDER

In order to support his drug habit, Girard West ("Petitioner") stole stained glass windows from many houses in and around Pittsburgh, as well as other things including a mantel, and sold them. Consequently, he was charged with many counts of burglary. In addition, he was separately charged with one count of Criminal Attempt to engage in theft by unlawful taking as well one count of possession of an instrument of crime (hereinafter, collectively, the "Criminal Attempt conviction" or "Criminal Attempt charge"). There is no dispute that Petitioner pleaded guilty on June 28, 2001 to all of the burglary charges. On September 25, 2001, Petitioner again appeared in open court and was sentenced. There is a dispute whether at that proceeding Petitioner also pleaded guilty to the Criminal Attempt charge. However, there can be no dispute that he was sentenced on the Criminal Attempt charge at that September 25, 2001 proceeding and this was done without objection by either Petitioner or his attorney.*fn1 Dkt. [8-10] at 38, lines 10 to 14. After appealing his conviction to the Superior Court and filing two PCRA petitions, the second of which was held to be untimely, Petitioner filed the instant Section 2254 petition on February 27, 2008.

The issues he raises in the present habeas petition are as follows: ALL PRIOR COUNSEL WERE INEFFECTIVE WHEN PETITIONER WAS SENTENCED TO 6 TO 12 YEARS FOR CRIMINAL ATTEMPT AND PIC [i.e., Possession of an Instrument of Crime]. PETITIONER IS INNOCENT OF CRIMIAN [sic] ATTEMPT SINCE HE NEVER PLED GUILTY TO THAT CASE (SEE ATTACHED GUILTY PLEA AND SENTENCING TRANSCRIPTS) PETITIONER WAS PREJUDICED WHICH THE ATTORNEYS CAUSED ALL IN VIOLATION OF THE PENNSYLVANIA AND UNTIED STATES CONSTITUTION. #2. Counsel were ineffective for (a) misinforming Petitioner he would get 1 1/2 to 3 years if he pled guilty (b) failure to request recusal of the Sentencing judge and (c) failing to file a 2119(f) statement on appeal of discretionary aspects of sentence. Dkt. [3] at 7, ¶ 13.

Because the petition is time barred, as Petitioner readily concedes, it should be dismissed as such. Alternatively, because the first issue raised was procedurally defaulted since it was raised for the first time in the second PCRA proceedings which were time barred, the issue cannot provide a basis for relief.

As to the second issue, Petitioner has not shown that the State Courts' adjudication of the the claims of ineffectiveness was contrary to or an unreasonable application of Supreme Court precedent.

A. Factual and Procedural History

On September 25, 2001, Petitioner was sentenced on all of the criminal charges, both the burglaries and the criminal attempt. Dkt. [9-2] at 52 to Dkt. [9-3] at 1 to 8 (sentencing transcript). In October, 2001, Petitioner, through his trial counsel, Attorney Leslie Perlow of the Allegheny County Public Defender's Office, filed a motion to withdraw his guilty plea as well as a motion to reconsider the sentence. On November 26, 2001, Petitioner appeared before Judge David Cashman of the Common Pleas Court and a hearing was conducted on the motion to reconsider the sentence and after the motion to reconsider had been argued, Petitioner, through counsel, orally withdrew the motion to withdraw the guilty plea. Dkt. [9-2] at 35, lines 17 to 20. In December 2001, Judge Cashman denied the motion to reconsider.

Through a new attorney from the Public Defender's Office, Petitioner filed an appeal. That appeal raised only two issues:

I. WHETHER THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT IN AN UNREASONABLE MANNER EXCEEDING THE STATUTORY GUIDELINES WITHOUT REASON SUPPORTED IN THE RECORD.

II. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO PROPERLY COMMUNICATE THE STATUS OF A PROPOSED PLEA AGREEMENT OR THE LACK THEREOF RESULTING IN THE DEFENDANT ENTERING A PLEA THAT WAS NOT KNOWING, VOLUNTARY OR INTELLIGENT.

Dkt. [8-9] at 7. On September 16, 2003, the Superior Court affirmed the judgment of sentence and dismissed Petitioner's claim of ineffective assistance of trial counsel without prejudice to being raised in a PCRA petition. Petitioner did not file a Petition for Allowance of Appeal ("PAA") in the Pennsylvania Supreme Court.

Instead, on October 16, 2003, Petitioner filed a pro se PCRA petition in the Common Pleas Court. Counsel in the person of Attorney Ryan Smith, who was not affiliated with the Public Defender's Office, was appointed to represent Petitioner. An amended PCRA petition was filed raising the following issues:

PLEA COUNSEL WAS INEFFECTIVE FOR MISINFORMING PETITIONER THAT HE WOULD RECEIVE A SENTENCE OF ONE AND ONE HALF TO THREE YEARS INCARCERATION IN EXCHANGE FOR A PLEA OF GUILTY.

Dkt.[ 9-2] at 9 (underlining removed).

PLEA COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST RECUSAL OF THE SENTENCING JUDGE.

Dkt. [9-2] at 13 (underlining removed).

APPELLANT [sic] COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO FILE A 2119(f) STATEMENT WHEN PRESENTING THIS PETITIONER[']S DISCRETIONARY ASPECT OF SENTENCE CLAIM ON DIRECT APPEAL.

Dkt. [9-2] at 16 (underlining removed).

After an evidentiary hearing was conducted, Judge Cashman denied the PCRA petition. Petitioner, through Attorney Smith, filed an appeal to the Superior Court. In that appeal, Petitioner raised the following issues:

DID THE PCRA COURT ERR IN DISMISSING PETITIONER'S PCRA PETITION FINDING THAT PETITIONER'S PLEA COUNSEL WAS NOT INEFFECTIVE WHERE COUNSEL ERRONEOUSLY INFORMED APPELLANT THAT HE WAS TO RECEIVE A SENTENCE OF THREE-ANDA-HALF ...


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