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Ronald L. Suber v. John Kerestes; the District

February 10, 2011

RONALD L. SUBER, PETITIONER,
v.
JOHN KERESTES; THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY; AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Bissoon

MEMORANDUM OPINION AND ORDER

Ronald Lee Suber ("Petitioner"), a state prisoner, pleaded guilty to one count of Rape, one count of Involuntary Deviate Sexual Intercourse ("IDSI"), one count of Indecent Assault, one count of Indecent Exposure and one count of Corruption of Minors in the sexual assault of a seven year old girl, who was being baby sat by Petitioner‟s wife.

At the guilty plea hearing, the District Attorney summarized the factual basis of the plea, describing what evidence the Commonwealth would have produced, had the case gone to trial, as follows:

She [i.e., the victim] would testify that she was asleep on the couch. She awoke when the defendant pulled down her underwear. He then proceeded to lick her vagina, took her underwear off, exposed his penis, touched her, then climbed on top of her and put his penis in her vagina.

She went to Children‟s Hospital where she was checked out and gave an interview. Samples were taken from the defendant and the victim, and the DNA in fact in this case came back that it would be 1 in 381 time[s] 10 to the 15th power among the Negroid population that it is not Ron Suber, which I believe is one of the biggest numbers and strongest matches we‟ve ever had in Allegheny County.

ECF No. 7 at 9 (quoting state court record, ("SCR") Guilty Plea Transcript ("GPT") at 5 to 6).

Petitioner now seeks to attack his conviction pursuant to 28 U.S.C. § 2254. Because we find that the state courts rejected several of his claims on the merits, and because Petitioner fails to show either 1) that the state courts‟ disposition of his claims was contrary to or an unreasonable application of then-existing United States Supreme Court precedent, or 2) that the state courts‟ factual determinations were unreasonable, those claims do not afford Petitioner relief. The remaining claims that were not addressed by the state courts have been procedurally defaulted and cannot serve as a basis for relief here.

A. Procedural and Factual History

After having gone through several attorneys, which resulted in several requests for continuances by Petitioner, and faced with the overwhelming evidence of his guilt, Petitioner finally pled guilty. He did so without a plea agreement. He pled guilty in July 2004, and was sentenced in September 2004. At count 1, Rape, the court sentenced Petitioner to 5 to 10 years. At count 2, IDSI, the court sentenced him to 5 to 10 years, to be served consecutively to the rape count. No further punishments were imposed at the other counts. Hence, Petitioner‟s total aggregate sentence was 10 to 20 years. Petitioner did not file a motion to withdraw the guilty plea or a direct appeal

In January 2005, a PCRA petition was filed on behalf of Petitioner and subsequently a hearing was conducted. At that hearing, it was decided that the PCRA petition would be treated as a nunc pro tunc post-sentence motion and the hearing would be conducted as a hearing on the nunc pro tunc post sentencing motion. The trial court denied the nunc pro tunc post-sentencing motion*fn1 and Petitioner‟s counsel filed a direct appeal.*fn2 The Superior Court affirmed the denial of relief, adopting the trial court‟s opinion, as its own. ECF No. 8-2 at 19-24; id., at 22 ("The trial court‟s opinion addresses all particulars of the contentions advanced by both Appellant and by the Commonwealth. We shall not reiterate that analysis, but rather we incorporate it by reference and adopt it as our own reasoning.").

Thereafter, Petitioner filed a PCRA petition, ECF No. 8-4 at 1 to 9, and had counsel appointed but counsel filed a no-merit letter and was permitted to withdraw. The PCRA court then denied the PCRA petition. ECF No. 8-4 at 36. Petitioner filed a pro se appeal.*fn3 The Superior Court denied relief. ECF No. 8-7 at 1 to 10.

Petitioner then filed the current Section 2254 petition, wherein he raises the following issues:

Ground A. The State unreasonably delayed in bringing Petitioner to trial. This violated Petitioner‟s right to due process of law, as guaranteed by the Fifth Amendment to the U.S. Constitution.

Supporting Facts: Petitioner was arrested on 11/18/01 and charged with rape and Involuntary Deviate Sexual Intercourse. Preliminary hearing was held on 12/12/01. Guilty plea was entered on ...


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