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Salkeld v. Tennis

September 25, 2009

TONY C. SALKELD, PETITIONER,
v.
FRANKLIN J. TENNIS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Sean J. McLaughlin United States District Judge

MEMORANDUM OPINION AND ORDER

Presently pending before the Court are the following motions filed by Petitioner, Tony C. Salkeld: Motion for Relief under Fed.R.Civ.P. 60(b)(3), (4) and (6) [Doc. No. 39]; Motion to Appoint Counsel [Doc. No. 40]; Motion for Evidentiary Hearing [Doc. No. 41]; and Motion for Extension of Time to File Reply [Doc. No. 44]. Also pending before the Court is the Motion to Dismiss the Petitioner's Rule 60(b) Motion filed by Respondents, Franklin J. Tennis and the District Attorney of Venango County [Doc. No. 43]. For the reasons that follow, Respondents' Motion will be granted and the Petitioner's Motion for Relief will be dismissed; the Petitioner's remaining Motions will be denied.

In April 2001, Petitioner was charged with one count of rape and one count of sexual assault. Petitioner contended, through his court-appointed attorney, that the victim consented to the sexual activity. In October 2001, he was found guilty by a jury in the Court of Common Pleas of Venango County of the sexual assault charge and was acquitted on the rape charge. He appealed his sentence to the Superior Court of Pennsylvania, alleging, inter alia, violations of Pennsylvania discovery rules. See [Doc. No. 19, Attach. 5 pp. 23-27]. On August 26, 2004, the Superior Court issued a Memorandum Order affirming his judgment of sentence. See [Doc. No. 19, Attach. 5 pp. 1-10]. Petitioner did not file an appeal with the Pennsylvania Supreme Court.

In September 2004, Petitioner filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 41 Pa.C.S.A § 9541-46. In his petition, he raised the following claims:

1. Whether the trial court should have colloquied Petitioner on his trial counsel's conflict or had trial counsel, Russell Karl, withdraw his representation of Petitioner;

2. Whether appellate counsel was ineffective for failing to appeal the trial court's charge to the jury in response to a jury question; and,

3. Whether trial counsel provided Petitioner with ineffective assistance for not opposing consideration by the trial court at the sentencing hearing of statements made by Petitioner during a Megan's Law investigation.

See [Doc. No. 19, Attach. 11 p. 2]. Following an evidentiary hearing on the PCRA petition, the trial judge concluded that the claims had no merit and denied relief. See [Doc. No. 19, Attach. 11 pp. 1-7]. Petitioner appealed this decision to the Superior Court of Pennsylvania, but subsequently filed a motion to withdraw the appeal, which was granted by the Superior Court on January 25, 2006. See [Doc. No. 19, Attach. 2 p. 1].

Petitioner subsequently filed a Petition for Writ of Habeas Corpus in this Court on February 21, 2006. See [Doc. No. 1]. In this Petition, he raised the following claims:

1. Trial counsel provided him with ineffective assistance because counsel operated under a conflict of interest;

2. The trial court erred in failing to adequately investigate the conflict of interest;

3. The trial court failed to procure a valid waiver of Petitioner's constitutional right to conflict-free counsel;

4. The trial court's instructions to the jury violated Petitioner's due process rights; and

5. The prosecution violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963), to disclose favorable and material evidence to the defense by withholding photographs of ...


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