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Raymond P. Rose v. James Mcgrady; the District

April 16, 2012

RAYMOND P. ROSE, PETITIONER,
v.
JAMES MCGRADY; THE DISTRICT ATTORNEY OF THE COUNTY OF ERIE; AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

OPINION

On December 1, 2004, Raymond P. Rose ("Petitioner"), entered a plea of guilty to multiple criminal charges involving the sexual abuse of his daughter and her step-sister over a period of time. There was no plea agreement for any specific sentence. See State Court Record ("SCR"), Plea Transcript, 12/21/2004, at 9, lines 21 to 13. Petitioner was sentenced to serve consecutive sentences for the multiple crimes. The total aggregate sentence was 13 to 32 years. ECF No. 9 at 1.

Petitioner filed a Petition for Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254. ECF No. 1. In the Petition, he raises four claims.

[1] The sentencing court abused its discretion and violat[ed] Petitioner's due process rights in imposing consecutive sentences, which amounted to a manifestly excessive sentence and under the circumstances is detrimental to the Petitioner's rehabilitative possibilities.

[2] The Sentencing Court failed to give due weight and consideration to various mitigating circumstances that [i.e., which] violate[s] Petitioner's right to due process of law.

[3] The Sentencing Court committed legal error and violated federally mandated law as well as state law and violated fundamental norms of sentencing and Petitioner's Right to due process Rights [sic] in failing to provide a legally sufficient contemporaneous statement in support of the sentencing scheme included in the imposition of consecutive sentences.

[4] The Petitioner was afforded ineffective assistance of counsel in violation of the Petitioner's Constitutional Rights under the Sixth and Fourteenth Amendments of the United States Constitution in that counsel failed to file a post-sentence motion preserving sentencing issues for purpose of appellate review. Petitioner's Memorandum of Law In Support of the Petition for Writ of Habeas Corpus ("MOL"), ECF No. 2 at 2 to 3.

The District Attorney of Erie County filed an Answer, ECF No. 9, arguing that Petitioner was not entitled to relief. The District Attorney also sent copies of the original state court record to the Court. See ECF No. 10. Because those records did not contain the briefs filed on Petitioner's behalf to the Superior Court, we entered an order directing the District Attorney to file of record those briefs, and the District Attorney complied. ECF No. 13.

This case was transferred to the undersigned in June 2011. ECF No. 12. Petitioner, and the Respondents, through the District Attorney, have consented to have the Magistrate Judge exercise plenary jurisdiction. ECF Nos. 4 and 11.

Because Petitioner failed to raise his first three claims as federal law claims before the state courts, he has procedurally defaulted any federal law claims in this Court. As to Petitioner's fourth claim of ineffective assistance of counsel claim, it is moot given that the state courts reinstated Petitioner's rights to file a post-sentence motion and his direct appeal rights.

I.FACTUAL HISTORY

Given that we write primarily for the parties who are well acquainted with the facts of the crime at issue, we forego a lengthy recitation herein. Suffice it to say that on December 1, 2004, Petitioner pleaded guilty to multiple counts of sexually abusing his daughter and her step-sister. A recitation of the facts underlying the crimes may be found in the SCR which contains the Plea Transcript, 12/21/2004 at 10 to 15. On March 17, 2005, the Court of Common Pleas of Erie County sentenced Petitioner to an aggregate sentence of 13 to 32 years.

II. APPLICABLE LEGAL PRINCIPLES

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, '101 (1996) ("AEDPA") which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. ' 2254 was enacted on April 24, 1996. Because the Petition in this case was filed after its effective date, ...


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