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Roberts v. Lockett

September 15, 2009

ERIC ALLEN ROBERTS, FW-8799, PETITIONER,
v.
MELVIN LOCKETT, ET AL., RESPONDENTS.



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

MEMORANDUM AND ORDER

Eric Allen Roberts has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not concluded that a basis for appeal exits, a certificate of appealability will be denied.

Roberts is presently incarcerated at the State Correctional Institution at Greensburg serving a fourteen to thirty year sentence imposed following his conviction upon a plea of guilty to charges of attempted homicide, aggravated assault and burglary at No. CC 200105721, in the Court of Common Pleas of Allegheny County, Pennsylvania.*fn1 This sentence was imposed on June 28, 2004.*fn2

A timely notice of appeal was filed on July 22, 2004 and a post-conviction petition was filed on July 28, 2004.*fn3 The latter petition was dismissed due to the pendency of the appeal.*fn4 The trial court agreed that the sentence imposed was illegal and on July 25, 2005, the Superior Court vacated the conviction and remanded for re-sentencing.*fn5

On October 4, 2005, the petitioner was re-sentenced to a corrected fourteen to thirty year sentence followed by ten years of probation.*fn6 An appeal was taken to the Superior Court in which the questions presented were

1. Whether the guilty plea should be withdrawn based upon a showing of a manifest injustice?

2. Whether prior counsel gave ineffective assistance for failing to properly argue and preserve the issue that the guilty plea should have been withdrawn?

3. Whether the sentencing court abused its discretion by failing to sentence appellant to a sentence that was less than the plea bargain?

4. Whether counsel gave ineffective assistance for failing to raise the issue concerning the discretionary aspects of sentencing?*fn7 On August 31, 2007, the judgment of sentence was affirmed.*fn8

On September 20, 2007, Roberts filed a post-conviction petition. That petition was dismissed on January 23, 2008, and a timely pro se appeal to the Superior Court was filed in which the issues presented were:

1. Whether the court committed error of law in dismissing petitioner's PCRA petition since counsel's Finley/no merit letter did not address that trial and appellate counsel were ineffective for failing to address the issue of defendant being heavily medicated at the time of the plea?

2. Whether the court committed error of law in dismissing petitioner's PCRA petition since counsel's Finley/no merit letter did not address that trial and appellate counsel were ineffective for failing to address defendant's rehabilitative needs?

3. Whether PCRA counsel failed to conduct an independent review of defendant's entire mental health history, doctor's reports, hospital stays, etc. when making his decision to file his Finley/no merit letter?*fn9 On November 13, 2008, the denial of post-conviction relief was affirmed.*fn10

A pro se petition for leave to appeal to the Pennsylvania Supreme Court was filed in which the issue presented was:

Whether the Superior Court erred in affirming the PCRA Order and Opinion of the Court of Common Pleas of Allegheny County No. CP-02-CR-0005721-2001, particularly with regard to: a) The PCRA Court dismissing petitioner's PCRA petition when PCRA counsel's no merit letter failed to address guilty plea and direct appeals counsel's ineffectiveness and; b) PCRA counsel's failure to conduct an adequate independent review when he made his decision to file a no-merit letter.*fn11

On April 28, 2009, leave to appeal was denied.*fn12

In the instant petition, executed on August 2, 2009, Roberts contends he is entitled to relief ...


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