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Wallace T. Leary v. John Kerestes

November 9, 2011


The opinion of the court was delivered by: Rufe, J.


Before the Court are Petitioner's Objections to the Report and Recommendation of United States Magistrate Judge David R. Strawbridge. After a careful and independent review of the Report and Recommendation, *fn1 Petitioner's Objections, *fn2 and the entire record in this case, and for the reasons that follow, the Court will overrule Petitioner's Objections, approve and adopt the Report and Recommendation, and deny the Petition.


On July 9, 2004, Petitioner Wallace T. Leary was involved in a home invasion during which he struck the resident of the home with a small sledge hammer and fled the scene, crashing his vehicle as he did so. *fn3 On May 3, 2005, Petitioner pled guilty to burglary, robbery, aggravated assault, disorderly conduct, accidents involving damage to an unattended vehicle, and displaying an obscured license plate. *fn4 On July 1, 2005, following a hearing, the Honorable James P. Cullen of the Court of Common Pleas of Lancaster County sentenced Petitioner to concurrent terms of incarceration of not less than ten years, but not more than twenty, for the offenses of robbery, burglary, and aggravated assault, and to one year of probation for the disorderly conduct charge. He further ordered Petitioner to pay costs associated with the charge for accidents involving damage to the unattended vehicle, and to pay $25 for the offense of having an obscured license plate. *fn5 The sentence of incarceration was imposed based on a mandatory minimum sentence of ten years under 42 Pa. Cons. Stat. § 9714(a)(1), Pennsylvania's habitual offender statute, and a deadly weapon enhancement pursuant to 204 Pa. Code § 303.10. *fn6

On August 3, 2005, Petitioner filed a timely notice of appeal with the Pennsylvania Superior Court, arguing that the habitual offender statute should not have been applied because his 32-year-old prior conviction was too old to be a "previous crime of violence" under the statute. *fn7 Although the Superior Court granted Petitioner's motion for reconsideration, it ultimately re-affirmed the judgment of the Court of Common Pleas and upheld the original sentence. *fn8 On March 26, 2007, the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal. *fn9

On February 26, 2008, Petitioner filed a timely pro se motion for collateral relief under the Post Conviction Relief Act *fn10 ("PCRA"), and after appointment of new counsel, asserted two claims of ineffective assistance of counsel (one relating to counsel's advice to plead guilty, the other relating to counsel's representation at sentencing) and a claim challenging the constitutionality of his sentence in that it violated the Ex Post Facto and Due Process Clauses of the United States and Pennsylvania Constitutions. *fn11 On June 29, 2009, the PCRA Court granted the PCRA petition in part, vacating Petitioner's concurrent sentences for burglary and aggravated assault. *fn12 The PCRA Court denied the petition in all other respects; Petitioner's conviction was not overturned and the mandatory minimum sentence of ten years on the robbery offense remained unaltered. *fn13 On July 10, 2009, Petitioner appealed these aspects of the decision to the Pennsylvania Superior Court. *fn14 The Superior Court affirmed the decision on April 14, 2010, *fn15 and the Pennsylvania Supreme Court decline to review the appeal. *fn16

Petitioner filed a pro se Petition for Writ of Habeas Corpus with this Court on October 19, 2010. The Court referred the case to the Honorable David R. Strawbridge, United States Magistrate Judge, for a report and recommendation. *fn17 On April 19, 2011, Judge Strawbridge filed a Report and Recommendation ("R&R") finding that the ten-year mandatory minimum sentence imposed on the robbery offense pursuant to 42 Pa. Cons. Stat. § 9714 did not violate Petitioner's due process rights, and that his counsel was not ineffective for failing to challenge his sentence on this ground nor for failing to raise the meritless defense of justification instead of advising Petitioner to plead guilty. *fn18 After being granted several extensions of time in which to file objections, Petitioner filed Objections to the R&R on August 12, 2011.

Petitioner submits three objections to the R&R: (1) "The conviction was obtained and the sentence was imposed in violation of the right to effective assistance of counsel;" (2) "Cumulative errors made by counsel must be considered in evaluating the ineffective assistance of counsel claim;" and (3) "The Superior Court's fact findings of fact [sic] and conclusions of law are unreasonable as opposed to being merely wrong." *fn19 By letter dated August 17, 2011, Respondents informed the Court that they did not intend to file a response to Petitioner's Objections.


The Antiterrorism and Effective Death Penalty Act of 1996 *fn20 ("AEDPA"), governs habeas petitions like the one before this Court. Under the AEDPA, "a district court shall entertain an application for writ of habeas corpus [filed on] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or the laws or treaties of the United States." *fn21 Where, as here, the habeas petition is referred to a magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), a district court conducts a de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." *fn22

Where the claims presented in a federal habeas petition have been decided on the merits in state court, a district court may not grant relief unless the adjudication of the claim in state court:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. *fn23

A state court's decision is "contrary to" clearly established law if the state court applies a rule of law that differs from the governing rule set forth in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme ...

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