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Frederick T. Ray, Iii v. Louis Folino

July 1, 2010

FREDERICK T. RAY, III, PETITIONER,
v.
LOUIS FOLINO, ET AL., RESPONDENTS.



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

OPINION

I. INTRODUCTION

On June 8, 2010, Petitioner Frederick T. Ray, III filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) In the Petition, he challenges his state court conviction arguing that his guilty plea was involuntary and asserting a violation of his Sixth Amendment right to proceed pro se at his criminal trial. On June 16, 2010, the Court referred the matter to U.S. Magistrate Judge Arnold C. Rapoport for a Report and Recommendation. (Doc. No. 2.)

After review of the submissions of the parties and the state court record, Magistrate Judge Rapoport issued a Report, recommending the Petition be denied with prejudice and dismissed without an evidentiary hearing. (Doc. No. 12.) On April 25, 2011, Petitioner filed Objections to the Report and Recommendation. (Doc. No. 19.)*fn1 The Court must now "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. [The Court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). For reasons that follow, the Court will approve and adopt with modification the Report and Recommendation (Doc. No. 12) and deny the Petition (Doc. No. 1) with prejudice.*fn2

II. FACTUAL BACKGROUND

On September 17, 2004, Petitioner began a fight with another individual, Matthew Mack, outside an apartment building in West Chester, Pennsylvania. (Doc. No. 4 at 6.) Petitioner then left the area, returning five to ten minutes later with a twelve-inch knife. (Id.) Mack retreated into an apartment and closed the door. (Id.) Petitioner then stabbed the door with the knife and cut himself in the process, leaving blood at the scene. (Id.) Petitioner also broke two windows with the knife handle. (Id.) Soon afterwards, he was apprehended and charged with multiple offenses including attempt to commit burglary, burglary, possession of instruments of crime, terroristic threats, criminal trespass, criminal mischief, simple assault, and disorderly conduct. (Doc. No. 12 at 2.)

On May 31, 2005, Petitioner entered a guilty plea and was sentenced in accordance with a written plea agreement to an aggregate term of five to ten years incarceration, followed by two years probation. (Id.) During the May 31, 2005 hearing at which Petitioner pled guilty (the "Hearing"), Petitioner expressed dissatisfaction with counsel and requested to proceed pro se at trial if his concerns were not addressed. (Doc. No. 4 at 4-5.) Petitioner later expressed a desire to enter a guilty plea. (Id. at 9.) Accordingly, the trial court conducted a colloquy to insure the plea was knowing, intelligent, and voluntary. (Id.) In the colloquy, Petitioner acknowledged that he understood the rights he was giving up, had an opportunity to review the guilty plea with counsel, and was voluntarily pleading guilty. (Id. at 9-10.) In addition, Petitioner stated he was satisfied with his representation despite his earlier indications to the contrary. (Id. at 17-18).

On June 10, 2005, Petitioner moved to withdraw his guilty plea. (Id. at 5.) On July 7, 2005, the trial court denied the motion. (Id.) On August 8, 2005, Petitioner filed a pro se appeal of this denial to the Pennsylvania Superior Court. (Id.) He raised two issued on appeal. First, he argued that the trial court erred when it denied his request to proceed pro se at trial because his request was equivocal. Second, he argued that the trial court erred when it failed to conduct an adequate colloquy on the waiver of counsel. (Doc. No. 12 at 2.) Petitioner also claimed that, as a result of these errors, his guilty plea was involuntary and improperly induced. (Id.) On September 12, 2006, the Superior Court affirmed the sentence of the trial court. (Doc. No. 4 at 6.) Petitioner then filed a Petition for Allowance of an Appeal to the Pennsylvania Supreme Court. (Id.) On June 5, 2007, the Pennsylvania Supreme Court denied the petition. (Id.)

On August 1, 2001, Petitioner filed in state court a pro se petition pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. Ann. § 9541. (Doc. No. 12 at 3.) Petitioner asserted the following claims: (1) he was denied his constitutional right to proceed pro se at trial; (2) he was denied effective assistance of counsel in that counsel (a) failed to object to the court's erroneous denial of his request to proceed pro se, (b) failed to inform him that his guilty plea waived any future challenge to the denial of his right to proceed pro se, (c) failed to object to an unsworn plea agreement, and (d) failed to object to an illegal sentence; and (3) the guilty plea was not knowingly and involuntarily entered. (Id.) On December 6, 2007, the PCRA court issued a notice of intent to dismiss the petition,*fn3 before dismissing the petition on January 30, 2008. (Id.)

On February 11, 2008, Petitioner filed a Notice of Appeal to the Pennsylvania Superior Court. (Id. at 4.) After receiving the notice, the PCRA court ordered Petitioner to file a concise statement of issues to be raised on appeal. (Id.) On June 20, 2008, Petitioner complied with the Order by filing the statement. (Id.) Thereafter, the PCRA court issued an Opinion finding that the claims involving the right to proceed pro se and the involuntariness of the guilty plea that were raised in the PCRA petition were either previously litigated or waived. (Id.) The PCRA Court also found that the ineffective assistance of counsel claims were waived because Petitioner did not raise these errors on direct appeal. (Id.)

Petitioner once again appealed to the Pennsylvania Superior Court, which affirmed the dismissal of the PCRA Petition. (Doc. No. 4, Ex. I at 1.) On September 10, 2009, the Pennsylvania Supreme Court denied Petitioner's request for allowance of appeal. (Doc. No. 4 at 6.)

On June 8, 2010, Petitioner filed his federal habeas petition with this Court. (Doc. No. 1.) Petitioner claims the state court erred in several respects: (1) by denying his claim that he had a right to proceed pro se at trial; (2) by denying his claim that his guilty plea was involuntary; (3) by denying his claim of ineffective assistance of counsel when counsel failed to object to the trial court's ruling on his request to proceed pro se at trial; and (4) by denying his claim of ineffective assistance when counsel failed to object to the inadequate colloquy on his waiver of counsel. (Doc. No. 12 at 5-6; Doc. No. 1 at 13-16.)

As noted, on June 16, 2010, the Court referred the matter to the Honorable Arnold C. Rapoport, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. ยง 636(b)(1)(B). (Doc. No. 2) On February 25, 2011, Judge Rapoport filed a Report recommending that the Petition be dismissed with prejudice and without an evidentiary hearing, and additionally, that there was no probable cause to issue a certificate of appealability. (Doc. No. 12.) Petitioner did not file objections within the fourteen day period noted by Judge Rapoport. (Doc. No. 12-2.) However, on April 25, 2011, Petitioner filed a motion to file objections to the ...


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