The opinion of the court was delivered by: Robert C. Mitchell, United States Magistrate Judge
Report and Recommendation
I.. Recommendation: It is respectfully recommended that the petition of James E. Johnson for a writ of habeas corpus be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
James E. Johnson, and inmate at the State Correctional Institution at Fayette has presented a petition for a writ of habeas corpus. In an Order entered on May 4, 2010, the respondents and the District Attorney of Lawrence County were directed to respond and show cause, if any, why the relief sought should not be granted.
Johnson is presently serving a fourteen to twenty-eight year sentence imposed following his conviction, upon a plea of guilty to a 77 count information charging violations of drug control laws and related charges at No. CP-37-CR-593-2002 in the Court of Common Pleas of Lawrence County, Pennsylvania. This sentence was imposed on June 24, 2003.*fn1 An appeal was taken to the Superior Court in which the sole issue presented was:
Whether the sentence court erred in denying motion to modify sentence since pertinent information concerning confidential agreement between defendant and Commonwealth was disregarded in determination of his sentence? (sic.)*fn2 The appeal was dismissed by the Superior Court on July 27, 2004 for failure to comply with the Court's procedural rules including failure to specify what provisions of the sentencing code had been violated.*fn3
A petition for allowance of appeal was filed in which the issues presented were: 1 Whether the Petitioner had waived issues concerning the discretionary aspects of sentence since a Concise Statement per Order of Court was not filed timely pursuant to Pa.R.App.P. 1925(b)
2.Whether the Petitioner had waived issues concerning the discretionary aspects of sentence since a concise statement of the reasons relied upon did not contain a statement entitled Concise Statement as required by Pa.R.App.P. 2119( f).*fn4 On July 19,2005, leave to appeal was denied.*fn5
Johnson filed a post-conviction petition on September 15, 2004, and on January 24, 2007, the Court of Common Pleas reinstated the defendants right to file an appeal nunc pro tunc and on February 5, 2007 a notice of appeal was filed in which the issues presented were:
I. Whether the Attorney General, as the prosecuting authority, breached a written executed Cooperation Agreement by failing to honor promises made within said Agreement in exchange for Appellant's guilty plea?
II. Whether the Trial Court erred in denying a Motion to Modify Sentence when pertinent information regarding the negotiated Cooperation Agreement between Appellant and the Commonwealth was disregarded in determination of sentencing?*fn6 On January 3, 2008, the judgment of sentence was affirmed*fn7 A nunc pro tunc petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which the issues presented were:
I. Whether error was committed in affirming the aforementioned judgment of sentence when defendant/petitioner/appellant meets the requirements for granting relief in seeking a modification of sentence.
A. Whether error was committed in failing to enforce a valid "Plea (Cooperation) Agreement" ...
B. Whether error was committed in affirming denial of a motion to modify sentence when information (including factual aspects of the charges against Petitioner) was disregarded in failing to enforce the "Plea (Cooperation) ...