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Ascenzi v. Nish

September 20, 2010

MICHAEL J. ASCENZI, PETITIONER
v.
JOE NISH, RESPONDENT



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Background

Michael J. Ascenzi filed this pro se habeas corpus Petition pursuant to 28 U.S.C. § 2254 while confined at the State Correctional Institution, Waymart, Pennsylvania (SCIWaymart).*fn1 Named as Respondent is SCI-Waymart Superintendent Joe Nish. Service of the Petition was previously ordered. By Order dated June 7, 2010, Petitioner's action was reassigned to the undersigned.*fn2 See doc. 31.

Ascenzi was arrested on charges of possession of a controlled substance and possession with intent to deliver.*fn3 On April 11, 2005, Petitioner entered a guilty plea in the Luzerne County Court of Common Pleas to a charge of possession with intent to deliver. Ascenzi's plea was entered with the benefit of privately retained counsel and resulted from a negotiated plea agreement which resulted in the remaining charge being nolle prossed. Petitioner was sentenced to a 2 to 4 year term of imprisonment on May 23, 2005. As a further consequence of his conviction, Ascenzi was also recommitted as a convicted parole violator by decision dated July 26, 2005.*fn4

According to the record, Petitioner did not file a direct appeal. However, Ascenzi did initiate an action pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C. S. A. § 9541, et seq on July 25, 2005. After appointing counsel and conducting a hearing on October 11, 2005, the trial court denied Ascenzi's PCRA petition. On July 10, 2007, Pennsylvania's Superior Court affirmed the denial of the PCRA petition. See Commonwealth v. Ascenzi, 932 A.2d 248 (Pa. Super. July 10, 2007)(Table).*fn5 A petition for allowance of appeal was subsequently denied by the Pennsylvania Supreme Court. See Commonwealth v. Ascenzi, 945 A.2d 165 (Pa. March 19, 2008)(Table).

In his pending habeas corpus action, Ascenzi claims that he did "not knowingly, voluntarily and intelligently" enter a guilty plea. Doc. 1 ¶ 12. Petitioner further contends that:

the Court of Common Pleas coerced him into abandoning his pre-trial motions and pleading guilty; trial counsel provided ineffective assistance by failing to object to the trial court's intervention in the plea negotiations and by neglecting to have fingerprint testing performed on the seized drugs; and post conviction counsel were deficient for failing to raise meritorious arguments.

Discussion

It is initially noted that Respondent concedes that Petitioner "has exhausted" his available state court remedies with respect to his pending claims and there are no apparent procedural bars to him proceeding in Federal Court. Doc. 18, p. 6.

Standard of Review

"The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Specifically, when a federal-law issue has been adjudicated on the merits by a state court, the federal court reverses only when the decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).*fn6 See generally, Knowles v. Mirzayance, ___ U. S. ____, 129 S.Ct. 1411, 1414-15 (2009); Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95, 104-05 (3d Cir. 2001). The Supreme Court has held that the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have independent meaning. Williams v. Taylor, 529 U.S. 362, 404-405 (2000). As explained in Bell, 535 U.S. at 694:

A federal habeas court may issue the writ under the 'contrary to' clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts.... The court may grant relief under the 'unreasonable application' clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case....

The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable....

In a recent decision, Renico v. Lett, __ U.S. __, 130 S.Ct. 1855 (2010), the United States Supreme Court quoting Williams explained that "an unreasonable application of federal law is different from an incorrect application of federal law." (Id. at *1862) Therefore, a federal court may not grant habeas relief simply because it has concluded in its independent judgment that the state court decision applied clearly established federal law erroneously or incorrectly.*fn7 (Id.) Rather, the state court application must be objectively unreasonable. Renico added that this distinction creates a substantially higher threshold for obtaining relief under ยง 2254 and imposes a highly deferential ...


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