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King v. Kerestes

December 21, 2009

GREGORY KING PETITIONER
v.
JOHN KERESTES, ET AL. RESPONDENTS



The opinion of the court was delivered by: Paul Diamond, J.

ORDER

Petitioner Gregory King objects to the Magistrate's recommendation that I deny his habeas corpus petition. 28 U.S.C. § 2254. I will overrule Petitioner's pro se objections and adopt the Magistrate's Report and Recommendation.

Background

In June 2001, Petitioner was convicted by a jury in the Montgomery County Common Pleas Court of burglary, indecent assault, indecent exposure, and criminal attempt to commit involuntary deviate sexual intercourse. See Commonwealth v. King, No. 773 EDA 2002 (Pa. Super. Ct. Feb. 13, 2003). Petitioner was sentenced on June 25, 2001 to an aggregate term of twenty-five to seventy years imprisonment. Id.

The Commonwealth presented evidence that on July 16, 2000, Sabrina Power entered her apartment at night to find Petitioner hiding in her bathroom. After a violent struggle, Petitioner forced Ms. Powers onto her bed and demanded oral sex. When she refused, Petitioner masturbated and fled. Id. at 2.

Petitioner filed a direct appeal to the Pennsylvania Superior Court, arguing that the trial court had improperly admitted evidence that on prior occasions police had seen Petitioner in the victim's apartment complex. Id. at 4. Petitioner argued that this was evidence of prior bad acts that should have been excluded under Pennsylvania state law. See Pa. R. E. 404(b). On February 13, 2003, the Superior Court agreed, ruling that the admission of Petitioner's prior contacts with police was impermissibly prejudicial. The Commonwealth appealed. On September 28, 2004, the Supreme Court of Pennsylvania vacated the February 13th Order and remanded to the Superior Court for reconsideration in light of Commonwealth v. Young, 849 A.2d 1152 (Pa. 2004) ("[O]nly those references that expressly or by reasonable implication also indicate some involvement in prior criminal activity . . . rise to the level of prejudicial error"). On remand, the Superior Court upheld the judgment of sentence, concluding that testimony of prior police contacts with Petitioner did not impermissibly imply that Petitioner had been involved in prior criminal conduct. See Commonwealth v. King, No. 773 EDA 2002 (Pa. Super. Ct. Feb. 3, 2005).

On August 21, 2006, Petitioner filed a pro se request for relief under Pennsylvania's Post Conviction Relief Act. See Petition for Post-Conviction Relief, No 7921-00 (August 21, 2006). The state court appointed PCRA counsel, who investigated the claims Petitioner sought to raise and determined they were baseless. See Letter from Bonnie-Ann Brill Keagy to Gregory King (April 25, 2007). Accordingly, she submitted to the Court a "no merit" letter in accordance with Pennsylvania law. See Id.; Commonwealth v. Finley. 550 A.2d 213 (Pa. Super. 1988). On May 27, 2009, the PCRA Court denied relief. Petitioner's pro se appeal from this denial was unsuccessful: the Superior Court affirmed and the Supreme Court denied allocatur. See Commonwealth v. King, No. 773 EDA 2002 (Pa. Super. Ct. Feb. 12, 2008).

On April 8, 2009, Petitioner filed the instant pro se petition for habeas relief. 28 U.S.C. § 2254; (Doc. No. 1.) Construing his Petition liberally, he appears to make the following claims:

1. The trial court denied Petitioner a fair trial by "improperly allow[ing] references at trial to Petitioner's prior contact with police";

2. Petitioner's enhanced sentence was illegal and unsupported by adequate evidence;

3. PCRA counsel was ineffective in failing to advise Petitioner of his appellate rights, failing to advise Petitioner of his right to counsel so that he could challenge the denial of PCRA relief, and failing to assist Petitioner in obtaining counsel for his appeal from the PCRA Court's Order;

4. Trial counsel was ineffective in failing to object to a cautionary jury instruction regarding Petitioner's prior contact with police;

5. Trial counsel was ineffective in failing to object to the prosecutor's opening argument that the crime "had left an 'indelible' image of the perpetrator in the mind of the victim";

6. Trial counsel was ineffective in failing to object to the victim's testimony that she was certain in identifying Petitioner;

7. Trial counsel was ineffective in failing to object to testimony by police officers that they did not ...


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