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Thomas Mullins v. Gerald Rozem

December 28, 2011

THOMAS MULLINS
v.
GERALD ROZEM, ET AL.



The opinion of the court was delivered by: Mary A. McLAUGHLIN, J.

ORDER

AND NOW, this 27th day of December, 2011, upon consideration of the Petition for Writ of Habeas Corpus (Docket No. 1), the Report and Recommendation of United States Magistrate Judge Timothy R. Rice (Docket No. 12), and the petitioner's Objections to Magistrate Judge Rice's Report and Recommendations (Docket No. 13), IT IS HEREBY ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;

2. The petitioner's objections are OVERRULED;

3. The Petition for Writ of Habeas Corpus is DENIED;

4. A certificate of appealability SHALL NOT issue, as the petitioner has not made a substantial showing of the denial of a constitutional right;

5. The Clerk of Court shall mark this case CLOSED for statistical purposes.

The Court conducted an independent review of Mullins's petition for writ of habeas corpus, the respondent's answer, the petitioner's reply, Judge Rice's Report and Recommendation, and the petitioner's objections to the Report and Recommendation.

In his Report and Recommendation, Judge Rice divides the petitioner's broad attacks into twenty-two separate claims and then analyzes each. The Court writes only with respect to two minor points on the claims identified in the Report and Recommendation as claims three and fifteen.

First, Judge Rice appears to have inadvertently omitted a discussion of claim fifteen. Thus the Court addresses it here. In 2003, Mullins pled guilty to four charges of offenses of a sexual nature for behavior with his step-daughter, B.C., over the course of several years. In claim fifteen, Mullins argues that his trial counsel was ineffective because she induced his guilty plea by inadequately preparing for trial. This claim was never raised by the petitioner in his state court challenges. See Counseled Br.; PCRA Pet.; Am. PCRA Pet.; 4/30/08 Tr. It therefore falls into the category of claims addressed in Judge Rice's Report and Recommendation at I.A., "Claims Mullins Never Raised in State Court." For the reasons described in that section, claim fifteen is procedurally defaulted and unexhausted, and therefore not subject to review by the Court.

Judge Rice concludes that the petitioner's third claim, that his guilty plea was involuntary because it was induced by the prosecutor's threats to his family, was waived. The Court notes that even if this claim were properly exhausted, it is without merit.*fn1

The petitioner's trial began on the morning of November 12, 2003 with the testimony of the alleged victim, his step-daughter, B.C. B.C. was emotionally distraught and initially stated that she would not testify against the petitioner. 11/12/03 Tr. at 79. The trial court held a recess so that she could speak to her guardian ad litem and then again so that her guardian ad litem could be present when she re-took the stand. Id. 82-85. After this recess, B.C. began to respond to the district attorney's questions. As she started to describe "touching" in "inappropriate places" by her step-father, the petitioner interrupted the trial to request that he be allowed to plead guilty. Id. 102-03.

The trial court engaged in a plea colloquy with the petitioner. The court explained the rights the petitioner was forgoing by pleading guilty. Id. 105-109. The court then asked "Has anyone forced you to plead guilty or threatened you to plead guilty?" The petitioner replied "No." Id. 111. The court reviewed the charges against the petitioner and the maximum and minimum sentences carried by those charges. Id. 111-114. The district attorney read into the record the facts she would prove and the court asked the defendant if those facts were accurate. Mullins corrected B.C.'s age, but otherwise agreed that the D.A.'s description of numerous instances of sexual contact with his step-daughter over several years was accurate. Id. 121-22. The court then asked "And you're pleading guilty, sir, here today before me because you are in fact guilty of these crimes?" The petitioner replied "Yes." Id. 122. The court found that the petitioner made "a knowing, intelligent, voluntary decision to waive his rights" and that "there are sufficient facts to substantiate" the charges against him. Id. 122. At his sentencing hearing, the petitioner testified that he pled guilty so as to spare B.C. any more pain. 4/30/08 Tr. at 50.

The petitioner first raised a claim that he had pled guilty because he felt threatened by the district attorney in his PCRA petition. PCRA Pet. 4. At a hearing on this PCRA petition, Mullins testified that he overheard a conversation between the district attorney and the Children and Youth Services ("CYS") worker in the stairwell outside of the courtroom during the recess before B.C. re-took the stand. 4/30/08 Tr. at 56-57. During that conversation, the D.A. and CYS worker discussed whether the petitioner's wife had influenced her daughter's testimony and their options if that had occurred. Id. This included criminal charges against his wife and possibly loss of custody of her children. Id. The petitioner's trial counsel confirmed that Mullins told her about ...


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