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Wright v. Smeal

December 23, 2009

EDWARD NICHOLAS WRIGHT, JR.
v.
PAUL K. SMEAL, ET AL.



The opinion of the court was delivered by: Lowell A. Reed, Jr., Sr. J.

MEMORANDUM

Presently before this court is a counseled petition for writ of habeas corpus (Doc. No. 1) filed pursuant to 28 U.S.C. § 2254 by Edward Nicholas Wright, Jr., ("Wright"), the response thereto (Doc. No. 8), and Wright's reply (Doc. No. 20). Wright, who is currently incarcerated in the State Correctional Institution at Smithfield, Pennsylvania, challenges his incarceration for robbery, aggravated assault and criminal conspiracy. For the reasons that follow, the petition will be denied.

FACTS AND PROCEDURAL HISTORY:

On December 30-31, 1996, Wright and three other men were involved in six separate gunpoint robberies involving six separate victims in the city and county of Lancaster over a period of time from 4:45 p.m. until shortly after midnight.*fn1 (N.T. 1/8/98, 166-200; 1/9/98, 309-336); see Arrest Warrant/Affidavit (Jan. 1, 1997). Two of the victims were shot during the robberies, a female in the chest, arm and buttocks; and a male in the leg. (N.T. 1/8/98, 98-120). Wright accompanied his cohorts in the car over the course of the evening, but never left the vehicle to actively participate in the robberies. (N.T. 1/9/98, 232).

After a jury trial before the Honorable Michael J. Perezous, Court of Common Pleas of Lancaster County, Wright was convicted of six counts of robbery, two counts of aggravated assault and seven counts of criminal conspiracy. On March 2, 1998, Wright was sentenced to an aggregate term of thirty-five to seventy years of imprisonment.

Wright filed a direct appeal asserting the following claims:

1) ineffective assistance of counsel for failing to call alibi witnesses;

2) ineffective assistance of counsel for failing to move to suppress Wright's involuntary and purportedly unreliable statement to police;

3) the evidence was insufficient to support the verdict;

4) the verdicts of guilty were against the weight of the evidence; and

5) the recanted testimony of witness Jonathan Fowler constituted after-discovered evidence mandating a new trial.

On May 25, 1999, the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Wright, 739 A.2d 593 (Pa. Super. 1999); No. 425 Harrisburg 1998 (Pa. Super. May 25, 1999) (unpublished memorandum), attached as Ex. "B" to Respondents' Answer to the Petition for a Writ of Habeas Corpus (Doc. No. 8; hereinafter "Answer"). The Pennsylvania Supreme Court denied Wright's petition for allowance of appeal on November 23, 1999. Commonwealth v. Wright, 747 A.2d 368 (Pa. 1999).

On November 22, 2000, Wright filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. Wright's petition was dismissed by the PCRA court without the appointment of counsel and without a hearing. On appeal, the Pennsylvania Superior Court remanded the case for appointment of counsel. Counsel was appointed and subsequently filed an amended petition. After evidentiary hearings were held on September 17, 2003, and March 18, 2004, the PCRA court denied Wright's petition on October 8, 2004. See Commonwealth v. Wright, No. 490 of 1997, 2538 of 1997, 2539 of 1997 (Lancaster County Court of Common Pleas, Oct. 8, 2004), attached as Ex. "H" to Respondents' Answer.

On appeal to the Pennsylvania Superior Court, Wright presented the following layered claims of ineffective assistance of counsel:

1) counsel was ineffective for failing to file a motion to suppress Wright's statements which were the product of an illegal and unconstitutional warrantless arrest;

2) counsel was ineffective for failing to file a motion to modify sentence; and

3) counsel was ineffective for failing to object to the testimony of Police Officer Kevin Ford.

On July 1, 2005, the Superior Court affirmed the denial of Wright's PCRA petition. Commonwealth v. Wright, No. 1645 MDA 2004 (Pa. Super. July 1, 2005) (unpublished memorandum), attached as Ex. "J" to Respondents' Answer. Wright filed a timely petition for allowance of appeal in the Pennsylvania Supreme Court which was denied on March 6, 2008.

On April 21, 2008,*fn2 Wright filed this petition for a federal writ of habeas corpus with an accompanying memorandum of law presenting the following issues:

1) a layered claim of ineffective assistance of counsel for failing to object to the testimony of Police Officer Kevin Ford regarding a statement he had taken from a victim who did not testify at trial;

2) a layered claim of ineffective assistance of counsel for failing to file a motion to suppress statements obtained pursuant to his alleged illegal arrest;

3) a layered claim of ineffective assistance of counsel for failing to object to the imposition of consecutive sentences; and

4) a claim that the recanted testimony of witness Jonathan Fowler constitutes after-discovered evidence establishing his actual innocence.

See Form for Use in Application for Habeas Corpus Under 28 U.S.C. ยง 2254 (Doc. No. 1, hereinafter "Petition") and Petitioner's Memorandum of Law in Support of Petition for Writ of Habeas Corpus (Doc. No. 1, hereinafter "Memorandum of Law"). Respondents have filed an answer asserting that Wright is not entitled to federal habeas relief because his claims are unexhausted and procedurally defaulted. See Answer (Doc. No. 8). Wright has filed a counseled reply thereto. See Petitioner's Reply to Respondents' Answer to the Petition for a Writ of Habeas Corpus (Doc. No. 20, hereinafter ...


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