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Edward R. Coss, Jr v. Superintendent Lawler

July 26, 2012

EDWARD R. COSS, JR., PETITIONER
v.
SUPERINTENDENT LAWLER, ET AL.,
RESPONDENTS



The opinion of the court was delivered by: William W. Caldwell United States District Judge

(Judge Caldwell)

Magistrate Judge Blewitt)

MEMORANDUM

I. Introduction

Edward R. Coss, Jr. filed this habeas corpus petition pro se under 28

U.S.C. § 2254 challenging an August 2009 conviction in the Court of Common Pleas of Lackawanna County, Pennsylvania, on a misdemeanor charge of a deceptive-business practice. The charge arose from his sale of a Ford Explorer for which he lacked title. He was sentenced to three to twelve months in prison, a term he has already served.

We are considering Petitioner's objections to the report of the magistrate judge. The report recommends that the petition be denied on the merits, principally on the grounds that Petitioner's waiver of the right to counsel and his guilty plea to the deceptive-business charge were constitutionally valid.

When a petitioner objects to any portions of the magistrate judge's report and recommendation, we must make a de novo determination of those portions. 28 U.S.C. § 636(b)(1). Otherwise, we may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendations. Id. For the following reasons, we will accept the recommendation and dismiss the petition.

II. Discussion

The magistrate judge's report sets forth the basic facts, and familiarity

with the report is assumed for the purpose of this memorandum. At a pretrial conference held in the criminal case on August 31, 2009, Petitioner: (1) waived his right to counsel after a colloquy; (2) pled guilty after a plea colloquy to the deceptive-business-practice charge, a violation of 18 Pa. Con. Stat. Ann. § 4107(a)(2) (West Supp. 2012); and (3) was sentenced to three to twelve months in prison and to pay $1,200 in restitution.*fn1

In his habeas petition, Petitioner challenged his waiver of counsel because it was not in writing. The magistrate judge correctly noted that there is no requirement that it be in writing. (Doc. 99, p. 13). In his objections, Petitioner asserts that he had negotiated the plea agreement with the prosecutor before the hearing so that the waiver of counsel that occurred at the hearing could not have applied to the plea negotiations, a critical stage of criminal proceedings where counsel is needed. We disagree. In context, the waiver was intended to cover all of Petitioner's actions that day. Petitioner obviously knew of the agreement he had made for himself and, in fact, the agreement had been put on the record. He could have insisted on his right to counsel, after reflecting on the plea bargain and after having been advised of the risks of representing himself. And he certainly could have decided not to plead guilty. We conclude that the waiver of counsel covers the plea negotiations.

Petitioner's next objection is that the magistrate judge overlooked his assertion that the prosecutor told Petitioner that the case could be reopened if Petitioner could prove at a later date that he was employed by Cap's Auto Sales.

(Doc. 102, Pet'r's Objections, p. 6).*fn2 Petitioner contends that the prosecutor's representation improperly induced the ...


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