The opinion of the court was delivered by: William W. Caldwell United States District Judge
Petitioner Gregory L. Gould, an inmate at SCI - Forest, has filed a petition for a writ of habeas corpus (doc. 1) pursuant to 28 U.S.C. § 2254. Gould's petition raises six grounds for relief: (1) sufficiency of the criminal information; (2) improper jury instructions; (3) relitigating evidence; (4) double jeopardy; (5) selective prosecution; and (6) denial of right to counsel on appeal. After a careful review of Gould's claims, we will dismiss his habeas petition.
Following a York County jury trial in May of 2000, the Petitioner was convicted of two counts of robbery and one count of conspiracy to commit robbery. The evidence admitted at trial indicated that two men wearing nylon stockings over their heads, one of them being the Petitioner, robbed a Crown service station at approximately 1:00 a.m. on August 24, 1999. The men entered the store and demanded money from the clerk, Ernest Spayd. After taking money from the cash register and safe, the men fled the scene. All during the robbery, the service station's security company was monitoring the situation via closed-circuit television. The security company notified the police and at approximately 1:10 a.m., Officer Russell Tschopp proceeded to the Crown station. While searching for a vehicle reported in the area, he observed a car moving towards him at a low rate of speed with its headlights off. Officer Tschopp maneuvered his patrol car across the vehicle's lane of travel. As he moved his patrol car, the headlights illuminated the interior of the vehicle and Officer Tschopp was able to identify a white female driver and a black male passenger.
As Officer Tschopp was communicating with York County dispatch, the suspect's vehicle backed up and pulled around the patrol car in the opposite lane of travel. As the vehicle drove past the officer, he observed a second black male lying on the floor in the back of the vehicle with a jacket pulled over his face. As the car passed, Officer Tschopp instructed the driver to pull over. At that time, the front passenger opened fire with a handgun, striking Officer Tschopp in his chest and right arm. Tschopp returned fire using his unwounded arm, blowing out the rear window of the vehicle.
Officer Steven Butler intercepted and pursued the vehicle. After pursuit, the vehicle stopped and Officer Butler observed two black males exit the car and flee the scene. Two nylon stockings and a spent .380 caliber shell casing were recovered from the vehicle.
On appeal, the Superior Court of Pennsylvania vacated the judgment and remanded for a new trial. The Superior Court determined that the Petitioner's waiver of his right to counsel was invalid due to the trial court's inadequate waiver colloquy.
In January of 2002, a second jury trial was held. The Petitioner waived his right to counsel. He was again found guilty of two counts of robbery and one count of criminal conspiracy to commit robbery. He was sentenced to an aggregate term of imprisonment of 19 to 40 years. His conviction was upheld by the Superior Court on direct review and he was denied relief through Pennsylvania's Post-Conviction Relief Act. He then filed the pending petition for habeas corpus.
A. Timeliness & Exhaustion
A habeas claim filed in federal court by a state prisoner must be timely, and the prisoner must exhaust every avenue of state review. A state prisoner must file the habeas petition within one year of the date of the state court's final judgment. 28 U.S.C. § 2244(d)(1)(A). Section 2254(b) also requires that the prisoner exhaust state court remedies by presenting each claim in at least one round of state appellate review. Carey v. Saffold, 536 U.S. 214, 219 (2002) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
Respondents argue that Gould has not properly exhausted all of his claims. (doc. 11). Upon of review of the record, we disagree and will consider each of ...