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Rouzer v. Diguglielmo

July 1, 2010

GALE ROUZER, PETITIONER
v.
DAVID DIGUGLIELMO, ET AL., RESPONDENTS



Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Gale Rouzer ("Petitioner" or "Rouzer"), an inmate presently confined at the Green Rock Correctional Center in Chatham, Virginia, commenced this pro se action by filing a Petition for Writ of Habeas Corpus ("Petition") pursuant to the provisions of 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania. (See Doc. 1-2.) At the time of filing, Rouzer was an inmate at the Graterford State Correctional Institution ("SCI-Graterford") in Graterford, Pennsylvania. Because Rouzer challenges his 2002 conviction in the Fulton County Court of Common Pleas, located in the Middle District of Pennsylvania, by Order dated February 22, 2007, the case was transferred to this Court. (See Doc. 1-6.) For the reasons set forth below, the Petition will be denied.

PROCEDURAL BACKGROUND

I. Criminal Conviction in State Court

The background of Rouzer's conviction in the Fulton County Court of Common Pleas was summarized by the Pennsylvania Superior Court in its Memorandum Opinion affirming the denial of Rouzer's first petition filed under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq.:

On July 29, 2002, Appellant [Rouzer] entered a negotiated nolo contendere plea to three counts of involuntary deviate sexual intercourse and one count of corruption of minors. These convictions were the result of Appellant's conduct toward his three step-daughters over a several year period. He was sentenced to an aggregate term of fifteen to forty-five years of incarceration for the involuntary deviate sexual intercourse convictions and a concurrent five-year probationary term for corruption of minors. This sentence was negotiated between the Commonwealth and Appellant and was accepted by the trial court as part of the plea agreement. No direct appeal was filed. (Doc. 9 at 63*fn1 , 11/10/05 Pa. Super. Ct. Op.)

II. PCRA Proceedings

A. First PCRA Petition

On or about November 22, 2002, Rouzer filed his first PCRA petition pro se.

(See id. at 64.) Following the appointment of counsel, an amended petition was filed. In his amended petition, Rouzer asserted that his trial counsel was ineffective in the following respects: 1) for failing to meet and talk to several exculpatory witnesses regarding the allegations filed against him; 2) for failing to file a motion to disqualify the district attorney due to a conflict of interest; and, 3) for failing to advise Rouzer of his rights to file post-trial motions or a direct appeal to the Pennsylvania Superior Court. (See id. at 54, 7/29/04 1st PCRA Opinion.) Following a hearing at which both trial counsel and the alleged exculpatory witnesses testified, in an Opinion and Order dated July 29, 2004, the PCRA Petition was denied. (See id. at 54-62.)

On a counseled appeal to the Pennsylvania Superior Court from the denial of his first PCRA petition, Rouzer raised the first two (2) issues that he had raised in his PCRA petition. (See id. at 64-65, 11/10/05 Pa. Super. Ct. Op.) In an Opinion dated November 10, 2005, the Pennsylvania Superior Court affirmed the denial of Rouzer's first PCRA petition by the lower court. (See id.) On May 31, 2006, the Pennsylvania Supreme Court denied Rouzer's Petition for Allowance of Appeal. (See id. at 73, 5/31/06 Pa. Order.)

B. Second PCRA Petition

While his appeal to the Pennsylvania Superior Court from the denial of his first PCRA petition was pending, Rouzer filed a second PCRA petition, which the PCRA court denied by Order dated May 4, 2005 because of the pending appeal. (See id. at 4-5 ¶ 11(b)(6), (7).) According to the Response filed in the instant action, in this second PCRA petition, Rouzer raised the following issues:

(i) imposition of sentence greater than lawful maximum, sentence is excessive, and my lawyer did not raise this issue

(ii) miscarriage of justice, error of law, abuse of discretion (Doc. 9 at 4 ¶ 11(b)(3).) The Response further states that, in his accompanying brief, Rouzer "also alleged that the trial and first PCRA counsel failed to raise issues relative to sentencing in that the court (iii) failed to recite the sentencing guidelines on the record, and (iv) improperly considered the age of the victims and their relationship to defendant (stepdaughters) as factors for imposing sentence." (Id.)

Although Rouzer filed an appeal to the Pennsylvania Superior Court following the denial of his second PCRA petition, which was docketed at Number 898 MDA 2005, on November 17, 2005, he filed a "Motion to Quash/Discontinue" his appeal, and the appeal was discontinued by Order dated January 27, 2006. (Id. at 4-5 ¶ 11(b)(7).)

C. Third PCRA Petition

On October 24, 2006, Rouzer filed his third PCRA petition. (See Doc. 23 at 3, 8/13/07 Pa. Super. Ct. Op., 2019 MDA 2006.) According to the Response filed in the instant action, Rouzer raised the following issues:

(i) trial court erred in not suppressing statement

(ii) elements of crimes were not established at [plea] colloquy

(iii) statute of limitation expired on most charges

(iv) prosecutor made comments during colloquy of evidence not of record

(v) sentencing court erred in pronouncement of sentence

(vi) all [of the above] under counsel's ineffectiveness (Doc. 9 at 5 ¶ 11(c)(3).) Rouzer raised the following additional issue in a subsequent amendment to his petition: "a lifetime registration requirement under Megan's Law was imposed on the Defendant without a Sexually Violent Predator hearing." (Id.)

By Order dated November 3, 2006, the PCRA court denied Rouzer's third PCRA petition on the basis that he had "not alleged manifest injustice, as required by Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988)."*fn2 (See Doc. 9 at 74, 11/3/06 PCRA Court Order.) Rouzer timely filed an appeal to the Pennsylvania Superior Court on November 16, 2006. (See Doc. 23 at 3, 8/13/07 Pa. Super. Ct. Op., 2019 MDA 2006.) In disposing of his appeal, the Pennsylvania Superior Court first considered whether Rouzer's third PCRA petition was timely filed. (See id.) The Court began by determining that, because 42 Pa. Cons. Stat. § 9545(b)(1) requires that "any PCRA petition, including a second or subsequent petition, must be filed within one year of the date that the petitioner's judgment of sentence becomes final," and Rouzer's third PCRA petition was filed nearly four (4) years after his judgment of sentence became final, it was patently untimely. (See id. at 4.) However, the Court considered whether Rouzer had successfully argued an exception to the timeliness requirement in the following discussion:

In his PCRA petition, Appellant [Rouzer] attempted to circumvent the timeliness requirement by raising an 'equitable tolling' argument;

Appellant claimed that the pendency of his previous PCRA petitions and federal habeas corpus petitions should be 'excluded' from the one-year timeliness requirements. This argument is flatly contrary to the law of this Commonwealth and cannot circumvent the timeliness requirement of the PCRA. [Commonwealth v.] Davis, 916 A.2d [1206, ] [ ] 1208 [(Pa. Super. Ct. 2007)]. In addition to this argument, Appellant also asserts on appeal that his PCRA was untimely due to governmental interference. As this argument was not presented in his PCRA petition, it is waived. See Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa. Super. 2001). (See id. at 4-5.) The Court concluded that Rouzer had not successfully argued that an exception to the timeliness requirement applied, his petition was untimely, and therefore, it did not reach the issues presented by ...


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