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Gerber v. PA. Attorney General

April 28, 2010

SCOTT GERBER, PETITIONER
v.
PA. ATTORNEY GENERAL, RESPONDENT



The opinion of the court was delivered by: Malcolm Muir United States District Judge

Petition Filed 2/03/09)

(Judge Muir)

MEMORANDUM AND ORDER

Petitioner, Scott Gerber, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He attacks a conviction imposed by the Court of Common Pleas for Lebanon County, Pennsylvania. (Doc. 1). For the reasons that follow, the Court will deny the petition.

I. Background

The following background has been extracted from the Pennsylvania Superior Court's April 1, 2008 Opinion affirming the denial of Gerber's petition pursuant to the Post Conviction Relief Act (PCRA):

We previously set forth the protracted history of this case as follows: On July 12, 1996, Appellant was charged with one count each of Criminal Attempt to Commit Criminal Homicide, Aggravated Assault, Rape, Burglary, and Unlawful Restraint in connection with a violent assault effectuated upon a co-worker. On December 4, 1996, Appellant was tried before a jury regarding the charges lodged against him. At trial, it was established that Appellant had been flirting with the victim, who was Appellant's co-worker at McDonald's restaurant. While the victim was undressing in her home one evening, Appellant appeared at the victim's house. The victim tried to run out of the house, but Appellant grabbed her and wrapped a vacuum cleaner cord around her neck. Appellant then had vaginal sexual intercourse with the victim while he inflicted cuts upon the victim's body. Appellant left the victim for dead. The jury convicted Appellant of all of the charges lodged against him. On January 22, 1997, the trial court sentenced Appellant to an aggregate term of fourteen (14) years, six (6) months to forty-five (45) years' imprisonment as a result of his convictions. Appellant filed Post Sentence Motions, which subsequently were denied by the trial court. Appellant took no direct appeal of his judgment of sentence. Subsequently, Appellant filed two separate [PCRA petitions], which alleged, inter alia, that Appellant's trial counsel was ineffective for failing to file a direct appeal. After a protracted period of inactivity and then the issuance of this Court's order on September 22, 2004, Appellant filed a motion on September 27, 2004, for a hearing on the claims he raised in his first PCRA petition. The trial court held a hearing on November 18, 2004, at which time Appellant filed a motion to compel DNA testing. The trial court granted Appellant's motion, and after Appellant received the results of the DNA tests which did not physically link him to the crime scene, he filed a motion for a new trial on September 9, 2005.

On November 18, 2005, the [PCRA] court determined that Appellant's claim, contained in his first PCRA petition, that his trial attorney was ineffective for failing to file a direct appeal, was meritorious. Accordingly, the [PCRA court] reinstated Appellant's direct appeal rights nunc pro tunc.

Commonwealth v. Gerber, 909 A.2d 870 (Pa. Super. 2006) (unpublished memorandum) (citations and footnotes omitted). Thereafter, Appellant filed a direct appeal wherein he raised issues challenging whether there was sufficient evidence to sustain his convictions and the discretionary aspects of his sentence. On August 15, 2006, a panel of this Court affirmed the judgment of sentence. Id. Appellant's subsequent petition for allowance of appeal was denied by our Supreme Court on December 29, 2006. Commonwealth v. Gerber, 591 Pa. 661, 916 A.2d 631 (2006).

On February 1, 2007, Appellant filed the instant PRA petition. On April 12, 2007, the PCRA court issued notice to Appellant, pursuant to Pennsylvania Rule of Criminal Procedure 907(1), indicating its intention to dismiss the PCRA petition and an accompanying opinion. On May 8, 2007, the PCRA court issued an order denying relief and dismissing the PCRA petition. This timely appeal followed.

...Accordingly, after a comprehensive review of Appellant's arguments, we have discerned the following issues for our review:

1. Whether prior counsel was ineffective for failing to emphasize the importance of the 2005 DNA test results to the court?

2. Whether prior counsel was ineffective for failing to file pre-trial motions and for failing to ask for a judgment of acquittal?

3. Whether prior counsel was ineffective for failing to object to the victim's testimony?

Commonwealth v. Gerber, 953 A.2d 828 (Pa.Super. April 1, 2008) (Table, No. 1016 MDA 2007)(footnote omitted)(Doc. 5, copy attached at Ex. 16).

By Memorandum Order filed April 1, 2008, the Pennsylvania Superior Court affirmed the PCRA court's denial of Gerber's PCRA petition. Id. Petitioner filed for allowance of appeal to the Pennsylvania Supreme Court, which was denied on October 1, 2008. Commonwealth v. Gerber, 598 Pa. 773, 958 A.2d 1047 (Pa. Oct. 1, 2008) (Table, No. 288 MAL 2008).

On February 3, 2009, Gerber filed the instant petition for writ of habeas corpus in which he raises the following challenges to his conviction and sentence:

1. Twice tested DNA samples exclude petitioner and the victim's husband, which indicates a third party. The DNA evidence obtained from victim's clothing revealed "unidentified" male genetic profile.

2. Counsel was ineffective for failing to request dismissal of all charges because DNA results excluded petitioner.

3. Counsel was ineffective for failing to move for directed verdict of acquittal because there was no evidence linking petitioner to crime.

(Doc. 1, petition).

In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Court issued formal notice to Gerber that he could either have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by the court of appeal, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (Doc. 2). On March 16, 2009, Gerber returned the notice of election form, indicating that he wished to proceed with the petition for writ of habeas corpus as filed. (Doc. 3). Thus, a Show Cause Order was issued on March 31, 2009. (Doc. 4). Although a response was filed, (Docs. 5, 6), petitioner elected not to file a traverse. The petition is now ripe for disposition.

II. Standards of Review

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). "[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. ยง ...


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