The opinion of the court was delivered by: Judge Rambo
Petitioner Jerry A. Springer ("Springer"), an inmate currently incarcerated at the State Correctional Institution at Rockview in Bellefonte, Pennsylvania ("SCIRockview"), initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania. (Doc. 1.)*fn1 The matter was subsequently transferred to this court. Named as Respondents are Major Kerestes, the District Attorney for Potter County, and the Attorney General for the Commonwealth of Pennsylvania.*fn2 Springer seeks to challenge his 2000 conviction for two counts of third degree murder, two counts of homicide by vehicle, and driving under suspension-DUI related, in the Court of Common Pleas of Potter County, Pennsylvania ("trial court" or "Potter County court"). For the reasons that follow, the petition will be denied.
On August 21, 2000, following his plea of nolo contendere to two counts of third degree murder, two counts of homicide by vehicle, and one count of driving under suspension-DUI related, the Potter County court sentenced Springer to a term of imprisonment of thirty-two and a half (32-1/2) to sixty-five (65) years. The relevant facts were summarized by the Pennsylvania Superior Court as follows:
Eighteen days before the accident, thirty-year-old [Springer] was placed on ARD and his license was suspended based on a driving-under-the-influence-of-alcohol charge. As part of his ARD disposition, [Springer] was ordered to refrain from using alcohol. On the morning of the accident, he was told by his parents not to drink and drive. Later that morning, a garage attendant warned [Springer] not to drive as he appeared to have been drinking. Prior to the 1:00 p.m. accident, [Springer] was involved in a domestic dispute with his girlfriend and was very angry.
Just prior to the accident, [Springer] was observed driving very recklessly. Specifically, he swerved into oncoming traffic at one point and was traveling sixty miles per hour on a windy country road with a posted speed limit of forty-five miles per hour. The accident occurred as follows:
[Springer] left the roadway, proceeded up an embankment that had a slope of 46 degrees. He was traveling at a speed of at least 60 miles per hour at that point.... After being on this embankment and proceedings along the embankment for some distance, he then went into the ditch. He proceeded along the ditch again at a high rate of speed. He was observed not to have braked or slowed down during the entire time he was on the bank or in the ditch nor was there any indication that he had at any time applied brakes to his motor vehicle. [Springer] again proceeded northerly on Route 872 and crossed into the southbound lane of traffic at a distance of approximately 500 feet from what would be referred to as the point of impact. He corrected his vehicle, over corrected, went off the right side or the east side of the highway and when he did so he struck an embankment and immediately thereafter he struck two children. Those two children were Clifford Scheck, IV, age 8 years and Savannah Scheck, age 10 years. Those children were at a minimum of ten feet off of the roadway. They were in fact in the private driveway when they were struck by Mr. Springer's automobile. Mr. Springer's automobile then went air borne, it flipped over onto its roof propelling Savannah Scheck to the right or east of the ditch and carrying the child Clifford Scheck forward and underneath the vehicle. Both of these children suffered multiple blunt force trauma to their bodies, brain damage, spine damage, multiple broken bones that resulted in instant death for both children. As I stated before, [Springer] was familiar with this roadway.
The accident occurred on a sunny Sunday afternoon. [Springer] did not brake or attempt to brake until immediately prior to the impact with the children. His brakes were not faulty. [Springer] was trapped in his vehicle and was abusive to emergency personnel. When told at the accident scene that he just had killed two children, [Springer] responded, "I don't care, give me another beer." Id. at 20. [Springer's] BAC at the time of the accident was.28%, nearly three times the legal limit.
(Doc. 20-5, App. C, Commonwealth v. Springer, No. 2181 WDA 2000, slip op. at 1-3 (Pa. Super. Ct. July 10, 2001) 2-4.) Immediately following the entering of the plea, Springer was sentenced by the trial court to a term of imprisonment of 32-1/2 to 65 years.
Springer timely filed post-sentencing motions, which were denied on November 20, 2000. He timely filed a counseled direct appeal with the Pennsylvania Superior Court on December 15, 2000. (Doc. 20-3, App. A, Appellant Br., 8-14.) In that appeal, Springer presented the following questions: (1) Was the court's acceptance of Defendant's nolo contendere plea to two counts of murder in the third degree based on insufficient factual allegations to sustain the charges; and (2) Were the facts adduced by the Commonwealth at the time of Appellant's plea sufficient as a matter of law to support the element of malice for a conviction of third degree murder. (Id. at 8.) The Superior Court affirmed the judgment of sentence upon direct appeal by per curiam order dated July 10, 2001. Commonwealth v. Springer, 782 A.2d 1059 (Pa. Super. Ct. 2001). Springer filed neither a petition for allowance of appeal with the Pennsylvania Supreme Court nor a petition for writ of certiorari with the United States Supreme Court at that time.
On April 9, 2002, Springer filed a petition for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq. in the Potter County court. (See Doc. 20-10, App. H, Findings of Fact, Opinion and Order on Defendant's PCRA Petition, as amended, 2-11.) By order dated September 10, 2002, the trial court, now sitting as PCRA court, determined that Springer was denied effective assistance of counsel when appellate counsel did not timely file a petition for allowance of appeal in the Pennsylvania Supreme Court. (Id. at 3.) As a result, the PCRA court reinstated Springer's right to pursue such an appeal. (Id.) Springer then filed a petition for allowance of appeal on September 25, 2002, which was denied by the Pennsylvania Supreme Court by per curiam order dated January 31, 2003. Commonwealth v. Springer, 816 A.2d 1102 (Pa. 2003) (Table). Because the state court reinstated Springer's right to pursue a direct appeal, his judgment of sentence became final on May 3, 2003, or the end of the 90-day period from January 31, 2003 in which a writ of certiorari could have been sought.
Springer filed a second PCRA petition on April 9, 2003. (Doc. 20 at 2.) The PCRA court characterized Springer's grounds for relief as follows:
In this latest PCRA petition, [Springer] again has premised his grounds for relief on alleged ineffective assistance of the counsel. He alleges that counsel did not engage an accident reconstructionist and accordingly failed to challenge certain facts set forth by the Commonwealth.
[Springer] also suggests that he did not make a statement at the scene, contrary to what the Commonwealth set forth in its facts supporting the plea. [Springer] also complains that there was no agreement with the prosecutor as to the length of the sentence and notes that he has no memory of the incident involved. [Springer] also claims that his rights were not fully explained to him at the time he entered the plea, especially relative to a jury trial. His recollection is that the maximum sentences were not properly explained to him. [Springer] also claims that he was advised not to make a statement at sentencing, which adversely affected him.
He also argues that this Court should have recused itself, and that the length of his sentence should have been argued on appeal. He also disagrees with this trial counsel not producing military records for use at sentencing. (Doc. 20-10 at 3.) On November 17, 2004, the PCRA court granted Springer's petition in part, giving him permission to appeal the discretionary aspects of his sentence to the Superior Court. (Doc. 20-7, App. E, Appellant's Br. to Superior Court, Apr. 7, 2005, 29.) The PCRA court denied all other claims.
Springer timely filed an appeal with the Superior Court on April 7, 2005. (Doc. 20-7 at 2-30.) In that appeal, Springer raised the following issues:
1. Was the plea free, voluntary and knowingly when there was confusion as to what the plea was entered into and what the consequences were of the plea.
2. Was the failure to have an expert witness counterbalance that of Commonwealth's witness devastating in a case where no eyewitnesses could testify as to what happened.
3. Where a defendant is under a jurist's ARD order, and violates that order by D.U.I.-related accident and other D.U.I. defendants are required to be present at the D.U.I. sentencing of the Defendant, should the lower court recuse himself.
4. Should a defendant be penalized at sentencing for following his counsel's advice no[t] to apologize. (Id. at 3.) On November 10, 2005, the Superior Court found that the trial court did not abuse its discretion in imposing the sentence, and otherwise affirmed the PCRA court's denial of post-conviction relief. (Doc. 20-9, App. G, Commonwealth v. Springer, No. 2128 WDA 2004, slip op. (Nov. 10, 2005) 2-12.) Springer's timely petition for allowance of appeal in the Pennsylvania Supreme Court was denied by per curiam order dated August 30, 2006. Commonwealth v. Springer, 906 A.2d 542 (Pa. 2006) (Table).
Springer timely filed a pro se petition for writ of habeas corpus in the United States District Court for the Western District of Pennsylvania on July 25, 2007.*fn3
(Doc. 1.) On November 21, 2007, the Western District court transferred the case to this court. (See Doc. 10.) By memorandum and order dated January 4, 2008, the court directed service of the petition on Respondents. (Doc. 14.) The court also directed Respondents to file an answer stating, inter alia, whether any claim in the petition is barred by a failure to exhaust state court remedies, a procedural bar, non-retroactivity, or a statute of limitations. (Id.) Respondents filed a response ...