The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge
Memorandum Opinion and Order
James Darrell Gemas has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
Gemas is presently incarcerated at the Muskegon Correctional Facility in Muskegon, Michigan serving a sixteen to forty year sentence imposed following his conviction, by a jury, of involuntary deviate sexual intercourse with a child and indecent assault on a person less than thirteen years of age. This sentence was imposed on March 7, 2007.*fn1
An appeal was taken to the Superior Court in which the sole issue presented was:
I. Whether the Commonwealth failed to prove every element of involuntary deviate sexual intercourse beyond a reasonable doubt in that the Commonwealth did not provide corroboration in the form of physical evidence?*fn2
On November 9, 2007, the judgment of sentence was affirmed and relief was not sought in the Pennsylvania Supreme Court.*fn3
A post-conviction petition was filed on May 28, 2008 in the Court of Common Pleas and following a hearing on October 10, 2008, relief was denied on January 12, 2009.*fn4 An appeal was taken to the Superior Court in which the questions presented were:
1. Was trial counsel ineffective for failing to object to the admission of drawings allegedly made by the victim and submitted as Exhibits 1 through 4?
2. Was trial counsel ineffective for failing to file a post sentence motion which included a weight of the evidence claim and a motion to modify sentence as requested by the appellant?
3. Was trial counsel ineffective for advising the appellant that his maximum sentence on the charge was twenty (20) and not forty years?
4. Was trial counsel ineffective for failing to call the witness James Gibson who would have confirmed the appellant's alibi defense?*fn5
On October 7, 2009, the judgment of sentence was affirmed.*fn6
A petition for leave to appeal to the Pennsylvania Supreme Court was filed in which these same issues were raised and on April 21, 2010, leave to appeal was denied.*fn7
In the instant petition, executed on August 23, 2010, Gemas contents he is entitled to relief on the following grounds:
1. Trial counsel was ineffective for failing to object to the admission of 4 drawings allegedly made by the victim and ...