The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter
Before the Court is Jeffrey L. Davis's Petition For Writ Of Habeas Corpus [ECF No. 4; see also Memorandum of Law, ECF No. 16], which he filed pursuant to 28 U.S.C. § 2254 when he was an inmate incarcerated at the State Correctional Institution Forest, located in Marienville, Pennsylvania.
In May of 2007, the Commonwealth charged Davis with the following four crimes: Forgery; Theft by Deception; Receiving Stolen Property; and, Identify Theft. (See CP Dkt. No. 2). The state court appointed Assistant Public Defender Michael A. DeJohn, Esq., to represent him. On June 7, 2007, Davis pleaded guilty to Forgery, which was graded as a felony of the third degree. In exchange, the prosecution nolle prossed the remaining counts. (Plea Hr'g Tr. at 7-10). The court subsequently sentenced him to a term of incarceration of 17-60 months, which was within the aggravated range of the Pennsylvania Sentencing Guidelines. He also was ordered to pay restitution in the amount of $3,400.
Davis, through Attorney DeJohn, filed a motion for reconsideration/modification of his sentence in which he challenged the restitution amount. (CP Dkt. No. 7). On August 2, 2007, the court amended its sentencing order to reflect that Davis had to pay restitution in the amount of $825.00. (CP Dkt. No. 10).
Approximately four months later, in December of 2007, Davis filed a pro se motion for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. (CP Dkt. No. 13). He claimed that Attorney DeJohn had been ineffective for: lying to him and providing him with faulty legal advice; failing to obtain discovery; failing to offer evidence; failing to proceed to trial; and failing to dismiss or quash indictment. (Id. at 3). The PCRA Court appointed William J. Hathaway, Esq., to represent Davis. Attorney Hathaway subsequently filed a motion to withdraw as counsel and a "no merit" letter in which he explained that in his professional judgment Davis had not stated a colorable claim for post-conviction relief. (CP Dkt. No. 17). The PCRA Court granted Hathaway's request to withdraw and also granted Davis an extension of time to file an amended PCRA petition. (CP Dkt. No. 19).
Next, Davis filed a request to have his sentence reduced, which the PCRA Court treated as an amended PCRA petition. (CP Dkt. No. 20). On March 14, 2008, the PCRA Court denied Petitioner's request for post-conviction relief. (CP Dkt. No. 21). Davis then filed a pro se appeal with the Superior Court of Pennsylvania. He raised the following four claims in the appeal:
1. "If there was no evidence that there was ever any loans taken out why did the attorney not ask for a dismissal of the case why keep going when it is clear to see that the Appellant did nothing wrong?"
2. "Why was the defendant sentenced in the aggravated range? When the fact that the Appellant was on state parole had nothing to do with the said case. The Appellant's record would not have put him in the aggravated range."
3. "Why wasn't the victim questioned by my attorney to determine if there was any evidence at all?"
4. "Why wasn't my evidence ever heard by the judge?" (CP Dkt. No. 31, Commonwealth v. Davis, No. 606 WDA 2008, slip op. at 4 (Pa.Super. Nov. 14, 2008) (quoting Appellant's Brief at 5)).
The Superior Court denied Davis's two ineffective assistance of counsel claims (appellate claims 1 and 3) for waiving them because he failed to address them in the body of his brief. (Id. at 5 (citing Commonwealth v. Jones, 815 A.2d 598, 604 n.3 (Pa. 2002)). The Superior Court construed appellate claims 2 and 4 as challenges to the discretionary aspects of his sentence. It denied them as waived because, inter alia, challenges to the discretionary aspects of a sentence are not cognizable in PCRA proceedings. (Id. at 6 (citing Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa.Super. 2007)).
In the instant petition for writ of habeas corpus, it appears that Davis is raising the allegations of ineffective assistance that he raised in the PCRA proceeding. (CP Dkt. No. 16 at 3-4). He also contends that the court erred in sentencing him in the aggravated range. (Id. at 1 (describing habeas claims 2 and 3)). Finally, he asserts that there was insufficient evidence to support his conviction. (Id. (describing ...