The opinion of the court was delivered by: Lowell A. Reed, Jr., Sr. J.
Presently before this court is a pro se petition for writ of habeas corpus (Doc. No. 1) filed pursuant to 28 U.S.C. § 2254 by Kirk Lucas ("Lucas"), the response thereto (Doc. No. 22) and Lucas's reply (Doc. No. 25). Lucas, who is currently incarcerated in the State Correctional Institution in Coal Township, Pennsylvania, challenges his incarceration for aggravated assault and conspiracy. For the reasons that follow, the petition will be denied.
FACTS AND PROCEDURAL HISTORY:
On April 28, 2001, Lucas and his two (2) brothers repeatedly punched and kicked the head of the victim, Bobby Gonzalez.*fn1 As a result of the beating, Mr. Gonzalez sustained severe and permanent brain injuries. On September 23, 2002, Lucas pled guilty to aggravated assault and conspiracy to commit aggravated assault before the Honorable William E. Ford, Court of Common Pleas of Lehigh County. In exchange for the guilty plea, the Commonwealth agreed not to pursue the remaining assault charges, including criminal attempt homicide. There was a binding plea agreement that the minimum sentence the Court could impose would not be greater than fifteen (15) years.
On October 28, 2002, Lucas was sentenced to ten (10) to twenty (20) years of imprisonment for the aggravated assault charge and a consecutive term of five (5) to ten (10) years of imprisonment for the conspiracy charge. At the time of sentencing, the probation department conducted a presentence investigation which indicated that Lucas had a prior record score of three (3).
On November 15, 2002, Lucas filed a motion to reconsider sentence, arguing that his sentence was excessive. The motion was denied. On direct appeal, the Pennsylvania Superior Court affirmed the judgment of sentence on December 23, 2003. Commonwealth v. Lucas, 844 A.2d 1283 (Pa. Super. 2003) (table). The Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on June 3, 2004. Commonwealth v. Lucas, 852 A.2d 312 (Pa. 2004) (table).
On January 12, 2005, Lucas filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. Appointed counsel filed an amended petition alleging that trial defense counsel had been ineffective for failing to object to the inaccurate prior record score assigned to Lucas at the time of sentencing. At a PCRA hearing, the court determined that Lucas's adjudications of delinquency prior to his 14th birthday should not have been used to calculate his prior record score. As a result, Lucas's prior record score should have been 0. Accordingly, Lucas's PCRA petition was granted, in part, and his October 28, 2002, sentences were vacated.
On May 5, 2005, a resentencing hearing was held, incorporating all the evidence from the original guilty plea hearing and sentencing hearing. The court also received updated testimony regarding Lucas and the victim. After Lucas was properly assigned a prior record score of zero (0), the court once again sentenced him to ten (10) to twenty (20) years of imprisonment for the aggravated assault charge and five (5) to ten (10) years of imprisonment for the conspiracy charge, to be served consecutively. The restitution that Lucas was ordered to pay was increased from $33,000.00 to $106,000.00. Post-sentence motions were not filed.
The Pennsylvania Superior Court affirmed the judgment of sentence on September 12, 2006. Commonwealth v. Lucas, 911 A.2d 182 (Pa. Super. 2006) (table). The Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on January 3, 2007. Commonwealth v. Lucas, 916 A.2d 632 (Pa. 2007) (table).
On June 15, 2007, Lucas filed a pro se state habeas corpus petition which was construed as a PCRA petition by the state courts. See Commonwealth v. Lucas, No. 2186 EDA 2008, at 3 (Pa. Super. July 22, 2009); see also Commonwealth v. Peterkin, 722 A.2d 638, 639 (Pa. 1998) (the PCRA subsumes the remedy of habeas corpus with respect to remedies offered under the PCRA). Appointed counsel filed an amended petition arguing that counsel had been ineffective at Lucas's resentencing and on appeal. After holding an evidentiary hearing, the PCRA court concluded that Lucas's attorney for resentencing had been ineffective for failing to properly preserve Lucas's objections to his new sentence. Lucas was given 10 days to file a post-sentence motion to object to the resentencing. On June 9, 2008, Lucas filed a post-sentence motion. The trial court entered an order denying the post-sentence motion on June 23, 2008.
Petitioner appealed to the Superior Court, arguing that (1) the trial court erred in failing to consider mitigating circumstances at his resentencing; and that (2) his sentence exceeded the sentencing guidelines and was manifestly excessive. On July 22, 2009, the Superior Court affirmed the trial court's sentence. Commonwealth v. Lucas, No. 2186 EDA 2008 (Pa. Super. July 22, 2009) (unpublished memorandum).
While he was pursuing his state court appeals, Lucas filed this petition for a federal writ of habeas corpus on August 20, 2007,*fn2 presenting the following issues:
1. the sentencing court denied his Fourteenth Amendment right to due process when it improperly deviated from the Pennsylvania State Sentencing Guidelines;
2. the sentencing court denied his Fourteenth Amendment right to due process when it enhanced his ...