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Bennie M. Tabb, Iii v. Jon D. Fisher

January 26, 2012

BENNIE M. TABB, III, PETITIONER,
v.
JON D. FISHER, ET AL., RESPONDENTS.



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

MEMORANDUM and ORDER

Bennie M. Tabb, III, an inmate at the State Correctional Institution -- Smithfield 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.

Tabb is presently serving a six to fifteen year sentence imposed following his conviction by a jury of corrupt organizations/racketeering, criminal conspiracy and possession and possession with intent to deliver a controlled substance at No. CP-37-CR-302-2006 in the Court of Common Pleas of Lawrence County, Pennsylvania. This sentence was imposed on November 3, 2006.*fn1

An appeal was taken to the Superior Court in which the issues presented were:

I. Was the evidence presented by the Commonwealth sufficient to prove each element of the Corrupt Organization charges beyond a reasonable doubt?

II. Did the court abuse its discretion in using the phrase "Detroit Drug Operation" as the name for the corrupt organization over Appellant's objection?*fn2

On November 13, 2007, the judgment of sentence was affirmed*fn3 and relief was not sought from the Pennsylvania Supreme Court.
On January 2, 2009, Tabb filed a post-conviction petition.*fn4 The court concluded that the petition was untimely and relief was denied on September 17, 2009*fn5 . An appeal to the Superior Court was filed in which the issues presented were:

A. Whether the timeliness exception of 42 Pa.C.S. § 9545(b)(1)(i) applies since prison officials prevented Defendant/Petitioner/Appellant from timely filing his pro se PCRA petition by removing Court records of this case from his possession during a period when the petition could have been timely prepared and submitted.

B. Whether Defendant/Petitioner/Appellant's guilty verdict and conviction have been unconstitutionally sustained as a result of prior defense counsel['s] ineffectiveness:

(i) Attorney Nicholas A. Frisk, Esq. failed to pursue and/or preserve available issue(s) relating to an alibi defense involving a time period after January 13, 2005 (i.e., including later in January 2005 and /or May 2005 and/or July 2005) when Defendant/ Petitioner/Appellant was incarcerated.

(ii) Attorney Nicholas A. Frisk, Esq. failed to pursue and/or preserve appealability issue(s) involving insufficiency of the evidence to support the guilty verdict (i.e., concerning lack of specificity of witness testimony) in support of Defendant/Petitioner/Appellant's alibi defense.

(iii) Attorney Nicholas A. Frisk, Esq. was ineffective in failing to introduced medical expert evidence to demonstrate the extent to which witness(es) who testified against Defendant/ Petitioner/Appellant were under the influence of drugs.*fn6

On September 21, 2010 the denial of post-conviction relief was affirmed ("we . conclude that Tabb's lack of access to his records for a period of time did not preclude him from discovering the claims he wished to raise on collateral review. We discern no error in the ...


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